In the NYT "Lives They Lived" annual feature, Emily Bazelon writes about Antonin Scalia as a "skeptic about science."

The grand year-end summary of those who have died commemorates Justice Scalia with the thesis statement: "He claimed objectivity when it came to originalism, but he was a skeptic about science."

That sounds so wrong to me. I don't think Scalia "claimed objectivity when it came to originalism." I think he aspired to neutrality and thought originalism at least imposed a standard that would make it possible to call out a judge who'd lapsed into deciding that the Constitution means what he'd like it to mean.

And I don't know what is the basis for calling him "a skeptic about science" unless you just mean he was skeptical of a judge's ability to know science well enough to use it in a neutral way or that he thought that unscientific cultural beliefs could be a rational basis for democratic choices.

So far I've only read the title of Bazelon's piece. Let's see what she's come up with — whether it makes sense and is fair and whether it has an appropriate attitude to belong in the set of year-end tributes that is the the NYT's traditional "Lives They Lived" feature.

Bazelon begins with Edwards v. Aguillard (1987), which is about teaching evolution, a subject that has distressed many religious parents for a long time. There was a Louisiana law that attempted to accommodate these people by requiring that — if evolution were taught — the alternative theory of "creation science" would also be taught.

The Supreme Court majority said this was a violation of the Establishment Clause because there was no secular purpose for the law. As Bazelon puts is:

For seven justices, the decision involved a simple constitutional question. They saw the law as an effort to force religious belief into the science curriculum, and they struck it down.

Justice Scalia dissented because there had not been a trial on the question whether "creation science" could be considered a legitimate, alternative scientific theory.

He 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.”

But the uncontradicted testimony that "creation science" is science had to do with whether those who challenged the law were entitled to summary judgment — getting a court to strike down the law without going to trial. Justice Scalia wasn't saying "What can we really know for sure?," but what do we know before going to trial and judging the credibility of the witnesses. And, beyond that: what's a scientific enough question to be permissibly included in a science class? As Justice Scalia wrote:

The people of Louisiana... 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.

Bazelon treats Scalia's Aguillard, written in his first term on the Court, as revealing the pattern his decisionmaking would take. She does get around to something close to what I sketched out in the second paragraph of this pose:

“History is a rock-solid science compared to moral philosophy,” Scalia said at the University of Virginia School of Law in 2010. In other words, he saw his project as stripping the law of judicial ideology. When his colleagues reached results that matched their politics, he derided them with the phrase “any stick to beat a dog,” according to another former clerk, Bruce Hay, now a law professor at Harvard. To prove the impartiality of originalism, Scalia often pointed to the occasional votes he cast against his preferences, like his support for a 5-to-4 ruling in 1989 that found a right to burn the flag in the First Amendment.

Fair enough. But why, if he liked history as a check on judicial activism did he also not show more interest in science? Again, Bazelon quotes a law professor:

And so it’s striking, observes Justin Driver, a law professor at the University of Chicago, “that the justice who more conspicuously than any other was invested in trying to make legal interpretation objective sometimes seemed to be skeptical of science itself, the best means we have of pursuing objectivity.” 

But was he skeptical of science or skeptical of the ability of lawyers and judges to slot science into their legal reasoning? I think Bazelon sees that it is the latter:

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.”

Bazelon says: "But the court had to deal." Actually, no. The case in question was about standing to sue, and the Court — on the existing doctrine — could very easily have said that Massachusetts did not meet the 3-part injury-in-fact test (which required finding that Massachusetts had a concrete and particularized threatened injury that was fairly traceable to the EPA's decision not to regulate new car emissions and that would likely be redressed by requiring that regulation). I was very surprised — and this was after teaching standing doctrine for more than 20 years — that the Court found standing. Scalia's dissent applied the doctrine in what was the conventional way I'd expected. His approach, finding no standing, really would have kept the Court out of the scientific matter. It would have left the question of how government should respond to global warming in the hands of Congress and the EPA.

Bazelon continues to the subject of same-sex marriage. Is that a science topic? It's a social science subject, and Scalia gets chided for refusing to see the social science research "as settled." I'm extremely wary of this idea that a person is hostile to science if he doesn't readily accept the assertion that science is settled! Bazelon writes:

In 2013, the lawyer defending California’s ban on same-sex marriage gave no examples of how allowing gay couples to marry could be harmful. “I don’t know why you don’t mention some concrete things,” Scalia prodded him. “There’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.” In fact, 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'm sure there is. I would expect that from social scientists, but the question was whether the states that didn't have same-sex marriage had a rational basis to think there was a legitimate reason for their law. If you look at the transcript from that oral argument, you will see that Justice Scalia is referring to the power of state legislatures to have this law because these "states... believe it is harmful -- and I take no position on whether it's harmful or not, but it is certainly true that -- that there's no scientific answer to that question at this point in time." The lawyer for the state then aptly pointed out that it was the other side's burden to show "that it's beyond debate that there will be no harm." That is, Scalia was talking about legal doctrine and whether democratic choice should prevail, not whether he believed the stronger "body of evidence" showed no harm to children. The question of what harms children is subtle and not subject to easy or conclusive research. Human life is an ongoing experience. It's at least arguably more scientific to say we don't know.

Finally, Bazelon criticizes Scalia for not accepting what she calls a "scientific consensus" that the death penalty does not deter murder!

He dismissed the findings of a panel of the National Research Council, which surveyed the relevant studies and unanimously concluded in 2012 that the death penalty does not have a deterrent effect. To support his claim to the contrary, Scalia cited three articles. Two were statistical studies that the National Research Council had discredited. The lead author of the third (which was not an empirical evaluation) had previously stated that his paper did not claim the death penalty had a deterrent effect. “Scalia was willing to cite work that was thoroughly refuted by an accepted scholarly institution, without feeling any need to buttress his position,” says John Donohue, a Stanford economist and law professor who conducts empirical research on the death penalty.

I thought the deterrent value of the death penalty — long rejected — had become a serious subject in recent years. Look at this 2007 NYT article. It quotes Cass Sunstein: "The evidence on whether it has a significant deterrent effect seems sufficiently plausible that the moral issue becomes a difficult one... I did shift from being against the death penalty to thinking that if it has a significant deterrent effect it’s probably justified." It's not surprising that more research ensued, and I'm not surprised that a panel of the National Research Council voted unanimously in favor of the old article of faith.

Here's what Scalia wrote about it in 2015, in Glossip v. Gross:

And finally, 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. See, e.g., Zimmerman, State Executions, Deterrence, and the Incidence of Murder, 7 J. Applied Econ. 163, 166 (2004) (“[I]t is estimated that each state execution deters approximately fourteen murders per year on average”); Dezhbakhsh, Rubin, & Shepherd, Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, 5 Am. L. & Econ. Rev. 344 (2003) (“[E]ach execution results, on average, in eighteen fewer murders” per year); Sunstein & Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev. 703, 713 (2005) (“All in all, the recent evidence of a deterrent effect from capital punishment seems impressive, especially in light of its ‘apparent power and unanimity’”). But we federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem “significant” reflects, it seems to me, a let-them-eat- cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate.

Let the People decide. That is judicial restraint, not hostility to science.

I myself love science, but I'm skeptical of the work product of scientists — especially social scientists. The scientists are human beings with opinions and preferences.

I'm sure many of them hate the death penalty and some of them structure the studies and look at the data under the influence of their opposition to the gruesome old practice. I know I, a human animal, do.

The scientists are human beings, who like me and like the people they may study, have minds that we can only struggle to understand.

Why does a scientist make a conclusion about what helps and hurts children or what stops a person from committing murder?

Who can ever plumb the depths of even the scientist's mind let alone the minds of all the children and of the people who murder and — where do you find them? — refrain from committing murder?

What makes a judge decide a case one way and not another?

What makes a NYT writer — and a Truman Capote fellow at Yale Law School — write about a conservative Supreme Court Justice as a man who claimed objectivity in originalism but was a skeptic about science?

We scarcely know. We can search forever and still scarcely know. And I consider myself decently scientific, saying that. Decently. Humanly. Why am I writing this, really? Can I even know my own mind? Why do I defend Justice Scalia when I see him attacked? Why does that feel unfair to me and why, of all things, is that what I jump to spend my morning parsing?

Ah! It's a mystery!