Justice Scalia: Not Down with Science

The Supreme Court issued three major decisions today, but Justice Scalia’s concurrence in the case on patenting genetic material, Association for Molecular Pathology v. Myriad Genetics, Inc., definitely stood out. Apparently, Scalia doesn’t believe in the science behind the case.

I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature. [Emphasis added]

Here’s a sample from Part I-A that he doesn’t “believe” in:

Genes form the basis for hereditary traits in living organisms. See generally Association for Molecular Pathology v. United States Patent and Trademark Office, 702 F. Supp. 2d 181, 192–211 (SDNY 2010). The human genome consists of approximately 22,000 genes packed into 23 pairs of chromosomes. Each gene is encoded as DNA, which takes the shape of the familiar “double helix” that Doctors James Watson and Francis Crick first described in 1953. Each “cross-bar” in the DNA helix consists of two chemically joined nucleotides. …

The text goes on just like that: simply summarizing molecular biology. That’s right, Justice Scalia can’t confirm these details with his knowledge (valid) or his belief (um, what?).

Also on today’s #TWiBRadio, the Microsoft Surface is terrible, we decided go extra black, and we’re joined by TWiB in the Morning Host, L. Joy Williams in the middle of a derecho in Washington, D.C. to report on her discussion at the Senate Democrat Roundtable today.

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And this morning on #amTWiB, L.Joy, Imani, and the rest of the #TheMorningCrew discussed Maine GOP leader Ken Fredette’s “man brain,” Facebook updating their posting policy to include mastectomy photos, and something really bad happened to that peeing, naked, gymnast on BART the other day.

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48 replies
  1. 1

    What was the framers’ understanding of science? He doesn’t need to go beyond that. Just ask him.

  2. 2
    p says:

    if some scientist finds a gene–in me– that is resistant to cancer or hiv (which has apparently happened to others)–do they have a “right” to patent it without my permission?
    gmo companies have claimed patents on native plants in s. america, and now it’s illegal for natives to plant them w/out buying them.
    in a south american country where water was “privatized” it became illegal to collect rainwater.
    monsanto is salivating on how they can take over marijuana.
    be afraid. be very afraid.

  3. 3
    JE says:

    I think he’s saying he doesn’t have enough knowledge to form a belief about the science – an admission of his lack of knowledge, rather than lack of belief in the science.

  4. 4
    Wag says:

    If is doesn’t involve keeping his presius bodily fluids in balance with rain water and pure grain alcholol, the good Justice has no interest in it.

    that, and the fact that woment want him to share his precious bodily fluid, and he denies them, tells you all you need to know of the man

  5. 5
    Wag says:

    Where’s the edit button! I really need to proof my comments before hitting the Submit button.

  6. 6
    Baud says:

    I’m just a caveman. I fell on some ice and later got thawed out by some of your scientists. Your world frightens and confuses me! Sometimes the honking horns of your traffic make me want to get out of my BMW.. and run off into the hills, or wherever.. Sometimes when I get a message on my fax machine, I wonder: “Did little demons get inside and type it?” I don’t know! My primitive mind can’t grasp these concepts.

    I miss Phil Hartman.

  7. 7
    dr. bloor says:

    his belief (um, what?)

    The Bible is silent about how many pairs of chromosomes Noah took onto the ark.

  8. 8
    Origuy says:


    if some scientist finds a gene–in me– that is resistant to cancer or hiv (which has apparently happened to others)–do they have a “right” to patent it without my permission?

    The decision said that they have no right to patent it, from what I’ve been reading, at all. If they create a synthetic version of it, maybe.


  9. 9
    p says:

    i wish you had a simple “fave” button.

  10. 10
    p says:

    you are a caveman?
    i’m not from this planet, i find it equally confusing.
    i think we could have a conversation.
    more than i could with scalia.

  11. 11
    p says:

    @Origuy: they got their hands on numerous of them (like the gene for breast cancer screenings) before the supreme court ruling.
    i’m wondering if any will be rolled back.
    you can’t study a human gene without a human that provides the genes.

  12. 12
  13. 13
    pokeyblow says:

    Scalia is a buffoon, a scoundrel, and an anti democratic partisan hack. However, admitting not knowing something is not bad.

  14. 14
    PsiFighter37 says:

    @ranchandsyrup: Wasn’t Benjamin Franklin quite the scientist wannabe, flying kites with keys on them during thunderstorms?

    That’s the main thing I remember about Franklin, which is a testament to how much you get brainwashed about how great all the Founders were…even though I’m much more inclined to subscribe to the Charles Beard theory about the whole shebang.

  15. 15
    MikeJ says:


    in a south american country where water was “privatized” it became illegal to collect rainwater

    It’s illegal in Colorado too.


  16. 16
    KG says:

    @PsiFighter37: I’ve read more than a few biographies on the founders, Ben Franklin and Alexander Hamilton would be the most comfortable in the modern world. They were city folk, born and breed, they understood the future was in ballbearings the cities and commerce, not the country or plantations. Franklin was as eccentric as you could get, loved booze and women (famous quote “beer is proof that god loves us and wants us to be happy”). Don’t get me wrong, they, like anyone else from that era would be shocked by everything that is the modern world (technology, integration, etc) but they’d be the least likely to completely freak out and require a sanitarium. Jefferson would probably lose his shit about, well, everything.

  17. 17
    p says:

    @Baud: aah, vague memories (and i did like phil hartman!) but the 90’s weren’t my favorite snl years and i had limited access to a tv on the back dirt roads i lived on.
    i hope you are at least getting haircuts?

  18. 18

    @PsiFighter37: I have the same inclination toward Charles Beard.

  19. 19
    Baud says:


    Not sure what you mean?

  20. 20
    Bloix says:

    Not to defend Scalia – I’m a Scalia-hater from way back – but you’re misunderstanding him.

    Go read the first section of the opinion that Scalia says he won’t join. It doesn’t say, “the parties agree to the following facts” or “the trial court found the following facts” or “Dr Blank, professor of blank and expert witness for the plaintiffs, testified to the following facts.”

    It just launches into a description of what DNA is and how it works. Earler today, when I read the opinion (before reading this post) I was surprised at how it did that.

    Courts are not supposed to pull facts out of the air. They’re supposed to find facts based on the evidence in the case. And the Supreme Court is not supposed to be engaged in fact finding – that’s a job for the trial court.

    There’s a limited range of facts that a judge can take “judicial notice” of, but these are only of the sort that everyone knows. In the US we drive on the right and a red light means stop. That sort of thing.

    None of the justices have any personal understanding or even their “own belief” in a legal sense – that is, belief based on personal knowledge – of what DNA is or how it works. They are relying on the information provided in the briefs and submissions of the parties.

    Scalia is reproving his colleagues for asserting things as generally known facts when they’re actually specialized technical knowledge.

    He’s being a dick about it, but he’s not saying that he disbelieves the science.

  21. 21
    p says:

    @MikeJ: i am speechless.
    i’d hoped i’d be dead before the water wars, before i had to move to fla (to take care of an impoverished, taken for everything she was worth by vultures, 95 year old who did everything right to prepare for her old age) where the aquifers are being sucked up.
    before my heart broke on a daily basis…

  22. 22
    jl says:

    I like to look at the bright side. Apparently Scalia read through a competent summary of the current scientific consensus and went with it. Let’s hope he can do it when presented with a similar summary that debunks some of his bigotry and delusion in social science.

    Might get us through until we have enough votes in Congress to impeach and remove him from the court (that is my plan A, but folks ‘in the know’ here tell me it can’t happen).

  23. 23
    Brother Shotgun of Sweet Reason says:

    @p: That’s just Western Water Law: “First in use, first in right.” Means the first person to use the water has the right to it and upstream users do not have the right to divert it for their own uses. Pretty much the same everywhere in the US west of the 100th meridian, AFAIK.

  24. 24

    @p: the rainwater collection ban isn’t going to remain law for too long in CO. Denver Water basically admits this.

  25. 25
    El Cid says:

    @dr. bloor: Truly, truly awesome.

  26. 26
    Gwangung says:

    @Bloix: this sounds good in isolation, but given his easy acceptance of creation science in previous cases, I’m not as inclined to give this ignorant lout the benefit of the doubt.

  27. 27
    p says:

    @Baud: @Baud: @Baud: that if you@Baud: thought you were saying you’re a hairy caveman lawyer? as i recall, in those skits, he could use a haircut? if you are a caveman and i am an an alien, there are things we need to do to seem “normal”? (all of which i fail at.).
    that i liked phil hartman? that i love this planet but the human inhabitants distress me?

  28. 28
    Baud says:


    Ah, your memory is better than mine. Thanks.

  29. 29
    jl says:


    Franklin might have exaggerated, or maybe even made up, parts of his kite experiment. I read a modern analysis of it, and how credible his story was. Remember, he was a pioneer PR man too.

    But I think he was the real deal in terms of science. He seems to get more respect from physicists for his science than from others. He was elected to the Royal Society and received an award for his research.

    I read in a book on the Founders and science, that he was the first, or one of the first who independently came up with the theory of how positive and negative charge worked to explain electrical current.

    From the article about Franklin and electricity in About.com:

    ” Benjamin Franklin’s letters to Peter Collinson were read before the Royal Society which Collinson belonged to but were unnoticed. Collinson gathered them together, and they were published in a pamphlet which attracted wide attention. Translated into French, they created great excitement, and Franklin’s conclusions were generally accepted by the scientific men of Europe. The Royal Society, tardily awakened, elected Franklin a member and in 1753 awarded him the Copley medal with a complimentary address.”

    Benjamin Franklin and Electricity

    The About.com article says it has a run down of fact and fiction about his kite experiment. I guess I’ll have to read that later to refresh my memory.

  30. 30
    Walker says:


    Ben God Damn Franklin is a framer who would be appalled at Scalia.

  31. 31
    khead says:


    Frozen Caveman Lawyer was the first thing I thought of after the USSC ruling,

    So, thank you. :)

  32. 32
    Misterpuff says:

    @efgoldman: Antonin Scalia, Medieval Lawyer.
    Sounds about right and he has the garb to match.

  33. 33
    p says:

    @Baud: again, i wish there were simple ways to “fan” someone, or acknowledge them on this sight, without having to review every comment.
    especially after several beers because i’ve felt like i stuck my hand into an electrical outlet/was tased today…
    thank you for understanding what i said (a conversation between a caveman and and alien!!).

  34. 34
    jl says:


    I agree, Franklin and Hamilton. I read Hamilton got rocks thrown at him once by an angry mob when he was helping free blacks vote.during an election.

    And Thomas Paine (he came up with an early social security and disability insurance program financed by property taxes. It was a little more commie than the one we have now).

    James Wilson.

    Washington was a lifelong Hamiltonian. Washington freed as many of his slaves as possible at his death. What I didn’t know until recently that in his will he also set up a training program for them so the ones that were uneducated could learn trades and live productive lives in the U.S. So he apparently was not with the ‘ship ’em back to Africa’ crowd. Washington was probably a Deist.

    Abigail Adams.

    Not sure all of those are conventional founders, but that is my list of those who could adapt without stroking out.

  35. 35
    Joey Maloney says:

    Always fun to take a swipe at Fat Tony, but I think “knowledge and belief” is kind of a legal term of art. You read it all the time in lawsuits. “Plaintiff alleges, by knowledge and belief, that such and such is true…”

  36. 36
    p says:

    scientists can’t do anything without a template. the templates of universal genius supersede the “genius” of scientists.
    is someone dr. moreau going to try and patent the life force?

  37. 37
    Another Halocene Human says:

    Because ensoulation Bishop’s Council on Bio-ethics intelligent design Francis Collins argledy bargle

  38. 38
    Another Halocene Human says:

    @p: sucked up and dumped full of runoff which feeds algal blooms in what’s left


  39. 39
    PST says:

    @Bloix: Agreed. Scalia may be an evil clown, but the court doesn’t need to find as fact the current consensus understanding of scientists in the field. Imagine, for example, what a late 19th century opinion might have recited based on the consensus understanding at that time of physics, or much worse, anthropology. I don’t understand Scalia to be saying that he doesn’t think molecular biology as described in IA is true. Most of us would assert that we believe those things, but all we really do is accept them on authority, with the help of some clever analogies and helpful visualizations. Few have anything deeper than partial recall of what we read in a textbook or popularization. If the scientific consensus were to change, we could be convinced to have the same shallow degree of belief in something different. Nothing wrong with admitting that.

  40. 40

    C’mon, how could Scalia know or believe anything not already known or believed in the 18th century?

  41. 41
    Ajaye says:

    @Bloix: the court may take judicial notice of commonly known facts without requiring evidence. Things such as the fundamental basics of dna, genes, chromoaomes etc. The facts on the basic acience were agreed on by the parties and the rest of the world. Genetics are taught to everyone in school and don’t require proof in a courtroom. So no. Scalia was certainly mot going to require them to prove basic facts on the science both parties agree are indiaputable amd most educated people generally know. Anyway they cite precedent in which judicial notice may have been taken of genetic fundamentals

  42. 42
    shortstop says:

    @PST: What’s interesting is that Scalia chose this area to say — for the first time, as far as I know — “I’m not an expert on this.” In fact, Scalia, like the other justices, is not an expert in the fields related to most cases that come before the court. They rely, as is appropriate, on the input of various people who are established experts in the relevant fields.

    Why should Scalia single this case out other than to imply it’s highly unusual that his knowledge is limited on something on which he opines?

  43. 43
    Pococurante says:

    @JE: That was my take on it as well. And it pains me to ever give Scalia the benefit of doubt.

    @shortstop: He uses whatever loofah is handy to hammer home his point?

  44. 44
    Pococurante says:

    @ranchandsyrup: The Denver Water faq linked above already cites a 2009 exception, which as an ex-urbanite Texan struck me as rational. (we’re having our own water tiffs, especially with Oklahoma.)

    @jl: In my not so humble opinion I think his view on blacks are one of his few redeeming qualities. Hamilton didn’t much care for “common people” and him according people of color the same status as non-elite whites simply meant more serfs.

    I agree he’d be much at home with today’s plutocrats and would merrily support folks like the Koch family.

  45. 45
    Cygil says:

    The use of “belief” is code for “I’m not endorsing the views of godless evolutionists in making this decision.” It’s that transparent.

  46. 46
    RaflW says:

    Having DNA implies that things can mutate which implies that things can evolve which implies that g*d does not exist which implicates one Antonin Scalia in the eyes of fundamentalist whackaloons if he concurs on the sciency part of the opinion.

    That Scalia is Catholic and has a job for life implies for me that he’s also just nucking futz to care about what protestant wingers think, but I repeat myself.

  47. 47
    Sad_Dem says:

    @Bloix: “He’s being a dick about it” That I can affirm on my own belief.

  48. 48
    Marmot says:

    @p: Jeeez, man. Scalia isn’t the only one who doesn’t get molecular biology, but at least he admits it.

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