Ethics & Public Policy Center

New York Times Smears Justice Scalia on Science

Published in National Review Online on January 12, 2017

In a series of posts at National Review Online’s Bench memos blog, EPPC President Ed Whelan rebutted a New York Times Magazine article that badly mischaracterized Justice Scalia’s handling of matters related to science in several Supreme Court cases.

Smearing Justice Scalia on Science—Part 1

December 21, 2016

In a New York Times Magazine piece, Emily Bazelon contends that Justice Scalia “was a skeptic about science.” (I’m quoting the subheadline, which Bazelon may not have written, but I think that it fairly captures her argument.) It would be far more accurate to say that he was a skeptic about his own mastery of scientific knowledge and about the mastery that other laymen claimed to have.

Bazelon’s claim about Scalia is a common one on the Left, which likes to mis-imagine itself as the party of science. So let’s take a look at Bazelon’s feeble evidence in support of her contention:

1. In 1987, Scalia dissented (in Edwards v. Aguillard) from the Court’s holding that a Louisiana law that required “creation science” to be taught along with “evolution science” violated the Establishment Clause. Bazelon claims that Scalia

saw the case as a question about certainty: What can we really know for sure? Pointing to “ample uncontradicted testimony that ‘creation science’ is a body of scientific knowledge, rather than revealed belief,” he chided his colleagues for treating the evidence for evolution as “conclusive.”

Scalia’s dissent does not support the notion that he “saw the case as a question about certainty” (by which, as the context suggests, Bazelon means scientific certainty). As the reader of his dissent will quickly discover, Scalia instead objected to the majority’s deciding the constitutional question “on the gallop, by impugning the motives of [the law’s] supporters.” He also pointed out (among other things) that the law itself defined “creation science” as “the scientific evidences for creation and inferences from those scientific evidences” and thus that the Court, in the current procedural posture of the case, “must assume” that the law does not “require the presentation of religious doctrine.”

Here’s the full passage (emphasis added) from which Bazelon clips her two quotes:

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.

When Bazelon says that Scalia was “pointing to ‘ample uncontradicted testimony …,’” she conveniently leaves out that he was referring only to “the evidence before us in this summary judgment context.” And he did not “chide his colleagues for treating the evidence for evolution as ‘conclusive’” but rather—and, again, based on the limited summary-judgment record—“for treating “the scientific evidence for evolution [as] so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary.”

Bazelon invokes Harvard biologist Stephen Jay Gould on her side. I’m a longtime admirer of much of Gould’s work. (I particularly like his persuasive explanation for the demise of the .400 hitter.) But in his critique Gould makes the same mistake of not understanding that Scalia is discussing the evidence in the summary-judgment record.

Bazelon specifically cites Gould as scolding Scalia for thinking that evolution aims to discover the “origin of life.” But Scalia was summarizing the testimony of witnesses in the legislature. Plus, it would seem that Gould is using the phrase “origin of life” and “ultimate origin” much more narrowly than those witnesses were (and much more narrowly than Bazelon seems to realize). Take, for example, the statement of one witness (as summarized by Scalia) that “Evolution posits that life arose out of inanimate chemical compounds.” As I understand his essay, Gould would say that statement isn’t really about the ultimate origin of life since it starts with the given of inanimate chemical compounds.

What’s more, Justice Brennan’s majority opinion itself treats evolution as addressing the “origin of life”: “The Act does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life.” (Emphasis added.) So why the one-sided bashing of Scalia?

More in Part 2.


Smearing Justice Scalia on Science—Part 2

December 21, 2016

I’ll continue (and number serially) my examination of Emily Bazelon’s claim that Justice Scalia was a “skeptic about science.” But if you’re short on time, please skip to item 5.

2. Bazelon quotes one former Scalia clerk as not remembering Scalia ever “talking about science.” So what? Should we expect Scalia and other justices to be staying current with the latest advances in biochemistry? Again, I would suggest that Scalia, rather than being skeptical of science, was appropriately modest about his own knowledge of it and skeptical that other laymen (including his law clerks) would have much valuable to say on the topic.

3. Bazelon writes:

At an argument before the Supreme Court in 2006, in a case about climate change, a lawyer for Massachusetts gently corrected Scalia for referring to the stratosphere instead of the troposphere. “Whatever,” Scalia responded. “I told you before I’m not a scientist. That’s why I don’t want to have to deal with global warming, to tell you the truth.”

To say that the case was “about climate change” is to suggest that the justices needed to bring their scientific knowledge to bear in deciding it. But the questions in the case were legal ones. Bazelonfaults Scalia for “doubt[ing]” what the majority presented as the “harms associated with climate change.” But Scalia, rather than doubting those, took no position on them. His point (which Bazelonobscures by cutting off the last half of his sentence) was instead that that scientific question was irrelevant to the legal ones: “The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation.”

4. In an amusing move, Bazelon complains that Scalia “also refused to treat social-science research as settled.” So after treating the material sciences as a venerable source of knowledge, Bazelonsuddenly expects the same respect to be accorded to “social-science research”?

Bazelon faults Scalia for stating at oral argument that “There’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family [are].” “In fact,” she says, “at that point there was a strong body of evidence showing that children fare as well with gay parents as they do with straight ones.” I won’t bother addressing here what Bazelon calls a “strong body of evidence.” It suffices to point out that a “strong body of evidence” still allows plenty of room for “considerable disagreement”—and also falls far short of having “settled” the matter.

5. Bazelon says that Scalia “contradicted scientific consensus when he declared it ‘very likely’ that the death penalty deters murder.” (Note that she again conflates social science with science.) Here’s the passage from his separate opinion in Glossip v. Gross that she objects to:

Justice Breyer speculates that it does not “seem likely” that the death penalty has a “significant” deterrent effect. It seems very likely to me, and there are statistical studies that say so. [Followed by citations.]

So Scalia’s “seems very likely to me”—which is poking at Breyer’s own “seem likely”—is what Bazelon presents as Scalia “declared.”

Much worse, Bazelon invents the “scientific consensus” that she says Scalia contradicts. The National Research Council report that she links to and touts actually “concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.” (Emphasis added.)

Summarizing this same report, Breyer accurately stated that it “reviewed 30 years of empirical evidence and concluded that it was insufficient to establish a deterrent effect.” In a gaffe that should disqualify her from writing about science, Bazelon flubs Breyer’s warning that “‘lack of evidence’ for a proposition does not prove the contrary.”

Perhaps it would have been better if Scalia had added that the “statistical studies that say so” had been disputed. But Breyer and Scalia both have unclear scientific support for their intuitions. Why is one, but not the other, the supposed enemy of science?

6. Finally, Bazelon faults Scalia “for refusing to join part of a 2013 opinion … that laid out basic principles of genetics in textbook fashion.”

But as Scalia explained in his three-sentence concurrence in the judgment in the case, he believed that the case could be resolved on the “expert” accounts 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.” In short, Scalia voted to decide the case based on “textbook” molecular biology.

For that reason, Scalia found it unnecessary for the majority opinion to go “into fine details of molecular biology” that he “was unable to affirm … on [his] own knowledge or even [his] own belief.”  From the majority opinion, here’s a representative proposition that Scalia regarded himself as unqualified to embrace: “The nucleotides on the DNA strand pair naturally with their counterparts, with the exception that RNA uses the nucleotide base uracil (U) instead of thymine (T).”

As one law professor has observed, Scalia’s refusal to pretend to a scientific understanding that he and his colleagues are unlikely to have might better be understood as intellectual humility, as respect for science. As another points out, his separate opinion can also be understood as involving the difficult and contested question of what qualifies as legislative fact. In no event does it support Bazelon’s claim that Scalia was “a kind of apostate” of science.

Addendum (12/22): I now see that scientists promptly identified errors in the majority opinion’s exposition of what Bazelon thought to be a “textbook” statement of “basic principles.” (H/t Ian Samuel.) Yet further evidence of the wisdom of Scalia’s position.


New York Times Is Beyond Parody and Beneath Contempt

January 11, 2017

I have very low expectations that the New York Times will correct the errors it makes that reflect and reinforce its ideological biases, but somehow the New York Times manages to sink even lower than I thought possible. Here is a case study in its irredeemably irresponsible—indeed, flagrantly know-nothing—smugness:

1. In an article in the year-end issue of the New York Times Magazine, Emily Bazelon smeared Justice Scalia for his supposed views on science. I spelled out in posts how Bazelon got just about everything wrong—citing a report for a proposition it rejects, mischaracterizing the reasoning in a Scalia dissent, conflating social science with the hard sciences, and confusing intellectual humility with disrespect for science. But if you’re disinclined to read through my posts or to take my word for it, I invite you to read law professor and former Scalia clerk (and self-described leftist) Ian Samuel’s absolutely devastating reply to Bazelon (which I excerpted here) on her culminating claim. Samuel concludes:

So, no, Justice Scalia was not wary of science. In fact, the cautious spirit he displayed in Myriad Genetics is in the best tradition of the scientific method.

2. A responsible reporter, on discovering how badly she had screwed up, would have worked hard to make amends—making sure, for example, that corrections were made to the online version of the article and were highlighted in a subsequent issue of the magazine. A responsible reporter would also have encouraged the magazine to publish letters pointing out her errors. (Any such steps, to be sure, would have been inadequate, for the article was beyond repair and should never have been published.)

Instead, Bazelon used a Facebook post to respond to a series of Samuel’s tweets (his fuller reply was to her post) and addressed part of one of my points in a three-sentence P.S. that didn’t even link to my posts. (Never trust someone who purports to respond to an argument but won’t link to it.) No corrections were ever made to the magazine article.

3. On December 22, in order to give the NYT Magazine the opportunity to act responsibly, I sent this letter to it for publication:

Dear Editor:

In her reflection on Justice Antonin Scalia (“The Lives They Lived,” Dec. 21), Emily Bazelon depicts Scalia as hostile to science. But she badly distorts all of her evidence.

Bazelon claims, for example, that Scalia dissented from the Supreme Court’s 1987 ruling striking down a Louisiana law on teaching “creation science” because he “saw the case as a question about certainty.” What Scalia actually said was that the limited evidence in the record of the case at the time did not support the majority’s conclusion that the law required the teaching of religious doctrine. He made clear that if the state proved unable to show scientific evidence against evolution—if “the scheme they have established will amount to no more than a presentation of the Book of Genesis”—then he would agree that the law is unconstitutional.

Bazelon also claims that Scalia “contradicted scientific consensus when he declared it ‘very likely’ that the death penalty deters murder.” But beyond her unscientific conflation of hard science and social science, she flatly misrepresents the National Research Council report that she cites for that supposed consensus. That report concludes that “research to date on the effect of capital punishment on homicide is not informative” on the deterrence question. In short, it denies the existence of any consensus.

Scalia was modest about his own scientific knowledge and doubtful of the mastery that his judicial colleagues and other non-scientists claimed to have. That displayed a respect for science, not a hostility to, or skepticism of, it.


Ed Whelan

P.S. disclosure: I am a former law clerk to Justice Scalia.

4. It’s bad enough, but not surprising to me, that the NYT Magazine did not publish my letter or a letter making similar points. But—hold on to your seats!—take a look at the single letter on Bazelon’s piece that it did publish:

Based on my reading of Emily Bazelon’s portrait of the late Justice Antonin Scalia of the Supreme Court, the world — and definitely the United States — would be a better place had Scalia reigned supreme as a court jester at the Vatican instead of as a court justice in Washington. David M. Lieberfarb, Edison, N.J.

That’s right: The one letter it chose to publish not only uncritically accepts Bazelon’s “portrait” but also exhibits rank anti-Catholic bigotry. (Yes, of the same sort that the Know-Nothings of 150 years ago displayed.) As Samuel has written to me:

Utterly bizarre. That they would publish that letter at all is bad enough, but given the choices it’s unconscionable.


It would be a good thing to have a “paper of record” (or, better yet, multiple papers) that were deserving of trust. But the New York Times has long since abandoned any claim to be trusted. To be clear, it has various reporters whom I like and respect. But it has a Stalinist culture of ideological conformity that prevents it from acknowledging and correcting errors that suit its ideological predilections.

For that reason, I will celebrate the day—perhaps not too far into the future?—that the New York Times goes out of business.

And to do my tiny bit to help expedite that event, I will highlight that there is no reason for anyone to pay a penny for online access to the New York Times. Here’s an article that presents different ways to get around NYT’s paywall. “Incognito mode”—which on Chrome simply involves clicking in the upper right to open a “New incognito window”—is very simple. (And, no, I don’t see anything remotely immoral in using lawful and non-invasive means to circumvent NYT’s efforts to restrict access to materials that it disseminates on the Internet.)

Ed Whelan is president of the Ethics and Public Policy Center.

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