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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The Icky Amendment

On today’s #TWiBRadio, Rick Ross wants women to know that they misunderstood him. He didn’t mean rape, he just meant drugging a woman and having sex with her without her consent. Which is rape.

Then we’re joined by Olivia St. Clair, resident TWiB ‘Ratchet-Ass’ lawyer who bent our brains into logic pretzels while explaining the legal rationale behind DOMA, Prop 8, and the potential outcome of the SCOTUS decisions.

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And this morning on #amTWiB, #TheMorningCrew discussed saying vagina in the classroom, how NOT to respond to your constituents, and L.Joy hits her grandma stride again.

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How Hip Hip is Supposed to Sound

On today’s #TWiBRadio, we’re joined by master lyricist Jasiri X who offered a retort to yesterday’s discussion of the state of hip-hop and we spend some time skewering our favorite talking butter sculpture, Rush Limbaugh.

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And this morning on #amTWiB, #TheMorningCrew discussed the horror of mop sinks in Tennessee restrooms, SCOTUS rules against drug-sniffing dogs, and the historic decline of HIV infections in black women.

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So Apparently Raping is Really Cool Now, huh.

Seriously, we’re just describing rape now.

On today’s #TWiBRadio, we discussed America’s pervasive rape culture, the indefensibility of the defensive anti-gay marriage stance, and I’ve got ideas for another new project.

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And this morning on #amTWiB, #TheMorningCrew were joined once again by Imani Gandy of the Angry Black Lady Chronicles to discuss the outing of the Obama daughters on vacation, whether we’re doing all we can for American veterans, and the politics of lazy ass glaciers.

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Legislating from the bench

Orin Kerr explains the essential problem with the recent District court ruling against the new healthcare law:

This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.

Read the rest for a little more background. Like Kevin Drum, I don’t think any of this particularly matters. This is going to the Supreme Court no matter what where, I suspect, the law will not be overturned, nor the individual mandate struck down. If it is, I think Ezra Klein’s prediction is likely correct:

I think it’s vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process — as that would sidestep both legal attacks and the supermajority requirement.

The resulting policy isn’t too hard to imagine. Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy.

This wouldn’t be bad at all – more public options and less payouts to private insurers is a good thing in my opinion, cut out the middle-men, etc. etc. – but it does strike me as something that could take a long time. I’m guessing it would mean a lot of people would lose their healthcare during the interim.

Actually, repealing the bill and kicking a bunch of people off their healthcare plans (and returning to the good ol’ days of pre-existing conditions) might speed the process of a Democratic resurgence just a bit, as voters already facing high unemployment rates are cut off from yet another lifeline. Meanwhile states are trying to cut poor people from their Medicaid rolls to balance budgets without raising taxes. This will only increase the likelihood that Democrats can once again run on some sort of universal healthcare platform. But only, of course, if the law is overturned or repealed. Republicans have shot themselves in the foot many times before and there are no signs of this changing.