A Side Note on AMP v. Myriad Genetics: The Curious Concurrence of Justice Antonin Scalia

Jake Sherkow has posted an excellent discussion of the majority opinion in Myriad and its likely implication. Not being a patent lawyer, I’m happy to defer to his expertise (especially since I almost entirely agree with his analysis).  But there is one odd little aspect to the case I do want to comment on, and that does not a patent’s lawyer’s expertise:  Justice Scalia’s concurrence in part and concurrence in the judgment.

JUSTICE SCALIA, concurring in part and concurring in the judgment .

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.

Some (I’m talking to you, Mark Joseph Stern in Slate) have argued that this is a nice, light example of judicial humility from Justice Scalia, to be chuckled over, if not applauded. I disgree.

For one thing, Justice Scalia has joined, or written, opinions with scientific facts without making similar disclaimers.  In his important majority opinion in Kyllo v. United States, he wrote

Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner’s home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth–black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images.

So does he know from personal experience that “virtually all objects emit” infrared radiation? (Or, for that matter, that “indoor marijuana growth typically requires high-intensity lamps”)?  If not, does he believe either of those statements?  And if so, on what basis does he believe those comments about infrared radiation, but not the discussion of DNA by Justice Thomas in Myriad?

Part of it is Scalia being a ham (something easy for me to recognize).  But, to the extent he is saying “the Court shouldn’t pretend it knows about the science,” I think what he says is both wrong and harmful.

First, the opinion doesn’t make sense without that discussion.  The Court approves patents, at least as far as the entry-level question of patentability under Section 101 for cDNA. Well, what IS cDNA?  Scalia’s paragraph-long opinion ends

“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.”

How can he even affirm that without believing something about DNA?  Is he telling us that he is just taking it on faith?  I’m willing to accept that he doesn’t, and doesn’t have to, “understand” it, but it seems to me that he has to believe it to reach his conclusion, and the “it” he has to believe encompasses a lot of the Court’s discussion of DNA, which he so airily dismisses.

But what REALLY bothers me about the opinion is the, both explicit and implicit, endorsement of the idea that

Hey, we’re judges – we don’t need no stinkin’ science. We don’t have to worry our heads about this science stuff. That’s what those other, different [and perhaps implicitly “lesser,” because, after all, they aren’t announcing The Law] breeds are for.

This idea reinforces the worst form of the divide between ”The Two Cultures.”  British novelist – and scientist – C.P. Snow delivered an influential lecture by the title in 1959 and wrote up his idea about the humanistic and scientific cultures several times.  In one form of the essay he wrote

A good many times I have been present at gatherings of people who, by the standards of the traditional culture, are thought highly educated and who have with considerable gusto been expressing their incredulity at the illiteracy of scientists. Once or twice I have been provoked and have asked the company how many of them could describe the Second Law of Thermodynamics.   The response was cold: it was also negative. Yet I was asking something which is the scientific equivalent of: Have you read a work of Shakespeare’s?


I now believe that if I had asked an even simpler question — such as, What do you mean by mass, or acceleration, which is the scientific equivalent of saying, Can you read? — not more than one in ten of the highly educated would have felt that I was speaking the same language. So the great edifice of modern physics goes up, and the majority of the cleverest people in the western world have about as much insight into it as their Neolithic ancestors would have had.

(Snow’s examples, by the way, provide some interesting support for the idea that physics was the queen of the 20th century sciences – biology seems to be gaining in the 21st.)

Besides, I believe Supreme Court justices should be able to understand issues around DNA to the depth of Justice Thomas’s opinion (about the depth of a good high school biology course), just as they should be able to understand how early Louisiana courts interpreted the Napoleonic Code should that be necessary or how what market concentration means should those be important to their cases. Judges are generalists who are supposed to be quick learners so they don’t have to decide cases without understanding, at least to some minimum level, facts crucial to their resolution.  Justice Scalia should be embarrassed by, and ashamed of, his confession of ignorance – though I’m guessing he’s not.

And that may be what bothers me the most – the sense, possibly unfair, that Scalia is actually proud that he doesn’t understand (or necessarily believe) high school biology.

Maybe I’m just feeling grumbly, but Scalia’s concurrence seems to reflect a smug nonchalance about science that no one making important decisions in, or for, our society can afford.

Hank Greely