Parsing How High Court Nominees Might Engage With Science And The Law

Earlier today the President announced his nominee for the vacancy on the U.S. Supreme Court, D.C. Circuit Court Judge Merrick Garland.  As several Senate Republicans are on the record indicating a lack of interest in meeting the nominee, much less holding a confirmation hearing, it’s unclear when or if Garland might sit on the court.  Even so, the nomination raised the question for me about how to assess potential jurists on how they would use science and technology in the court.

It strikes me as a tricky bit of business, but one worth engaging with regardless.  Especially since whomever joins the Court next is replacing a Justice who felt it necessary to note in the Myriad Genetics opinion (page 22) that

“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.”

Often the disputes that come before the Supreme Court and lower courts may involve decisions and agencies that deal with science on a regular basis, but are contested on grounds that deal with matters of law and authority for which science and technology are context but not the crux of the decision.  So while issues related to science and technology have become more important to society and have appeared more often in court matters beyond the specialized cases you might expect to see them (intellectual property chief among them), they don’t drive decisions so much as force the legal disputes.

When you review assessments of judges such as this one about Judge Garland from SCOTUSBlog in 2010 (the first time he was considered for a Supreme Court nomination) you don’t see any mention of science or technology.  It’s hard to say if that’s because he didn’t deal with cases that engaged with those topics or not.  The Circuit Court Garland serves on deals primarily with regulatory actions, so it stands to reason that science and technology factors into those cases in terms of informing policy choices.  But that doesn’t automatically mean that Garland had to have significant technological or scientific literacy in order to rule in those cases.

Again, Senate Republicans may make discussing a future Justice Garland moot.  But they won’t stop me from thinking of how difficult it could be to assess if the next Supreme Court Justice will feel the need to commit their lack of science and technology knowledge (or interest in same) to the public record.  Pointers and suggestions (as always) welcome.


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