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The Humble Justice Scalia

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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15 Responses

  1. Cynic says:

    I’ll join in part and dissent in part.

    Scalia’s single paragraph would have been a model of judicial humility, had he simply written, “I am unable to affirm those details on my own knowledge.” The crucial phrase here – and the one which apparently explains why he took the trouble to file this extremely unusual concurrence – is or even my own belief. That transforms the paragraph from a plea for humility into a statement of somewhat surreal arrogance.

    The section he singles out begins: “Genes form the basis for hereditary traits in living organisms.” Scalia is saying, in so many words, that he doesn’t believe in the scientific understanding of genetics and heredity outlined in Thomas’ discussion. So we’ve got a Justice who’s rejecting genetics even as he rules on gene patents. His discussion of ‘natural states’ seems intended to neatly sidestep the matter, allowing him to distinguish between an unaltered molecule and a synthetic one without having to take a position on DNA’s purpose. And that’s bunk.

    There’s nothing humble about a justice preferring his own understanding of heredity to that of every working geneticist. Scalia is supposed to parse the law, but couldn’t resist a chance to take a gratuitous shot at the underlying science. That he did so in a guise of false humility only makes it more egregious.

  2. Dave Hoffman says:

    I actually thought that “or even my own belief” refers not to his religious understanding but rather the typical “on my own knowledge or belief” phrase from civil procedure.

  3. Orin Kerr says:

    What Dave said. The phrase, “knowledge and belief” is sometimes used as a legal term of art.

    http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/SMTGT/Best%20Knowledge%20and%20Belief

    I believe Justice Scalia was just making a joke about his own lack of knowledge.

  4. Jimbino says:

    Wouldn’t it be nice, someday, to have a single Justice trained in Science and Math, instead of all the English, Philosophy, International Affairs, History and other Wishy-Washys we’re stuck with?

    Who was the last Justice with any sophistication in STEM? Breyer is the best we’ve got.

  5. Justice Scalia is simply the humble judge who don’t just listen but also understand the limits of his own power.

  6. Joe says:

    #4 is an interesting question. I don’t know how useful it is given the general questions they — as compared to perhaps district and court of appeals judges — usually examine. Managed to find the majors of a few — history and such — but not all. In the 21st Century, that is a factor in qualifications, at least for lower court judges.

  7. Dan Cole says:

    Can anyone point to a similar assertion of “humility” by Justice Scalia, including in cases involving scientific matters, during his long tenure on the court? If not, then I think “Cynic’s” interpretation may deserve more credit than you’re giving to it.

    On the benign humility interpretation, we should expect to see such sentiments expressed far more often.

    Dan

  8. Shag from Brookline says:

    Were Daubert “standards” addressed/applied in the decision of the Court? Is it clear what constitutes dicta in the decision? Might Scalia have been concerned that the decision was too broad?

  9. Shag from Brookline says:

    Or was Scalia reminding Justice Thomas not to get too uppity because of unanimity?

  10. Shag from Brookline says:

    Or was Scalia playing “good Justice” in contrast to his “bad Justice” dissent in Maryland v. King? Or does his reference to ” … or even my own belief.” suggest religious concerns?

  11. Brendan says:

    I can think of one recent example of humility by Justice Scalia, although it was expressed during oral argument and not in an opinion that he wrote. You might remember his comments during the Solicitor General’s time at the podium in Shelby County v. Holder, when he opined that the Congressional voting majorities in favor of the 2006 reauthorization of the Voting Rights Act (98-0 in the Senate, 390-33 in the House) were “very likely attributable” to “a phenomenon that is called perpetuation of racial entitlement” which has “been written about” as being “very difficult to [remove] through the normal political processes.” Those who voted in favor of the amendments did not think that “there is anything to be gained” by voting against it, and Justice Scalia was confident that it would be “reenacted in perpetuity unless . . . a court can say it does not comport with the Constitution.” He concluded by observing that “even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”

    In that instance, Justice Scalia stopped short of claiming clairvoyance, relying instead on the more mundane power of unsubstantiated speculation. We must wait until the end of the month to see what, if anything, he writes when the Court rules on the case; only then will we know if he is as humble in print as he is in prognostication.

  12. Cynic says:

    I’m quite certain that Dave Hoffman and Orin Kerr have forgotten more about the Supreme Court than I’ve ever known. Scalia has a keen wit, and they’re right to note that the phrase “on my own knowledge or even my own belief” is a clear play on the more common usage, “my knowledge or belief.” But it’s a play on that language, not a simple lifting of a familiar phrase. And that, to me, suggests that Scalia meant to offer something more than a declaration that Justices should not write about science.

    Nor do I think this unusual concurrence should be read in isolation. Justice Scalia is not in the general habit of proclaiming his ignorance, nor his inability to parse difficult subjects. If he had made the incompetence of the Court to affirm, explicate, or parse technical and scientific matters a regular feature of his jurisprudence, it would be a simple matter to read this odd concurrence as just one more chapter in an unfolding and consistent record. But, to my knowledge and belief, he has not. Moreover, the portion of Justice Thomas’ opinion to which he apparently objects is actually essential to the Court’s ruling. Thomas is balancing the need for incentives against the risk of impeding the flow of information. How the Court is supposed to accomplish that without first defining its terms and establishing the basic purpose of the patents in question is beyond me.

    But we’ve actually seen this side of Scalia before, most notably in Edwards v. Aguillard. In his dissent then, he wrote:

    The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it. Perhaps what the Louisiana Legislature has done is unconstitutional because there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis. But we cannot say that on the evidence before us in this summary judgment context, which includes ample uncontradicted testimony that “creation science” is a body of scientific knowledge rather than revealed belief. Infinitely less can we say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation’s stated purpose must be a lie. Yet that illiberal judgment, that Scopes-in-reverse, is ultimately the basis on which the Court’s facile rejection of the Louisiana Legislature’s purpose must rest.

    Stephen Jay Gould read that dissent, blanched, and wrote: “I regret to say that Justice Scalia does not under the subject matter of evolutionary biology.”

    What’s striking is that when Scalia first approached the subject of evolution from the bench, he threw his hands in the air and proclaimed the Court’s inability to distinguish between science and religion. And now, almost thirty years later, he’s done the same thing, again. This is a suspiciously useful humility. He struck a similar note in the oral arguments of Massachusetts v. EPA, quipping to counsel, “I told you before I’m not a scientist.” And his dissent in that case again emphasized uncertainty and the lack of scientific consensus, and stressed the inappropriateness of the majority’s conviction that it understood the underlying science. For Scalia, this sort of studied ignorance seems almost purely tactical.

    So, you’re right. In his concurrence, Scalia is clearly being witty and clever. But given that his concurrence here draws no substantive disagreements with the majority’s ruling, it’s equally clear that he intends to score a symbolic point. It’s possible that he means only what he says on the surface – that the Court should simply have found that DNA is natural and cDNA is not, and left aside the fine details of molecular biology. But I think it’s much more likely that his play on “knowledge and belief” was intended to say something more – that he is as uninterested in signing on to an opinion affirming the genetic basis of evolution today as he was in Edwards v. Aguillard.

  13. Joe says:

    I’m still wary to assume #1 is correct but the reasoning given the latest comment looks a bit more reasonable.

  14. AF says:

    Weighing in favor of Cynic’s interpretation is the fact that Scalia (and the other justices) routinely sign on to opinions which summarize technical or factual issues presented to them by the parties, but which the justices cannot, and are not expected to, independently verify. It is highly unusual to decline to sign on to such opinions on the grounds of personal ignorance. This suggests that something else may be going on here.

    I also agree that Justice Scalia’s reference to his own belief is significant. It is true that “knowledge and belief” is a term of art in traditional legal pleading by parties. But it is not a term of art that is used to describe a judge’s knowledge of the facts of the case. On the contrary, judges are supposed to confine themselves to the record and arguments presented to them by the parties. Nobody assumes that a judge’s description of the facts of the case is based on his or her independent knowledge. In this context, Justice Scalia’s reference to his own belief seems pregnant.

  15. JDH says:

    For what it’s worth, in response to #4, Justice Blackmun was a math major at Harvard. (As were Laurence Tribe and Ted Kaczynski, but that’s another story.) Offhand I can’t think of any other justices with a science background, though Stevens was a code-breaker and Rehnquist worked with weather instruments during WWII.

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