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"The Most Scientifically Irresponsible Passage":
What is "the most scientifically irresponsible passage in United States Reports"? According to Jim Chen it is "Justice Scalia’s gratuitous swipe at evolutionary biology" in his dissent from denial of certiorari in Tangipahoa Parish Board of Education v. Freiler. Drawing upon his article "Legal Mythmaking in a Time of Mass Extinctions: Reconciling Stories of Origins with Human Destiny" from the Harvard Environmental Law Review, Chen lambastes Scalia in this Jurisdynamics post: In Tangipahoa Parish, a Louisiana school board had declared that lessons on "the Scientific Theory of Evolution" would "be presented to inform students of the scientific concept and not . . . to influence or dissuade the Biblical version of Creation or any other concept." The U.S. Court of Appeals for the Fifth Circuit duly invalidated the school board’s disclaimer. Public expressions challenging the scientific validity of evolution have no chance of withstanding the Supreme Court’s leading decisions regarding legal efforts to restrict the teaching of evolution. This is routine, settled law, a straightforward application of Epperson v. Arkansas, 393 U.S. 97 (1968), and Edwards v. Aguillard, 482 U.S. 578 (1987).
Justice Antonin Scalia, however, took extreme pains to dissent from this decision. He derided the appeals court’s reasoning — and, by extension, that of his colleagues who voted to deny urther review — as "quite simply absurd." He found no reasonable prospect of treating the school board’s "reference to . . . a reality of religious literature" as an unconstitutional "establishment of religion." After expressing seeming disapproval of Epperson and Edwards, Justice Scalia berated his colleagues for advancing further "the much beloved secular legend of the Monkey Trial."
Justice Scalia’s allusion to the 1925 prosecution of John Scopes for teaching evolution in a Tennessee high school represented a transparent political appeal to the shockingly powerful lobby that opposes the teaching of evolution in American public schools.Justice Scalia’s dissent in Tangipahoa Parish deserves condemnation because no other legal authority comes as close to supporting the teaching of creationism. The creationist lobby goes by the name "intelligent design" these days, but the enemy deserves to be called by its proper name: creationism. Justice Scalia’s shameless pandering gives judicial aid and comfort of the highest order to the creationist lobby. Here is the relevant portion of Justice Scalia's opinion: The only aspect of the disclaimer that could conceivably be regarded as going beyond what the rehearing statement purports to approve is the explicit mention–as an example–of “the Biblical version of Creation.” To think that this reference to (and plainly not endorsement of) a reality of religious literature–and this use of an example that is not a contrived one, but to the contrary the example most likely to come into play–somehow converts the otherwise innocuous disclaimer into an establishment of religion is quite simply absurd.
In Epperson v. Arkansas, 393 U.S. 97 (1968), we invalidated a statute that forbade the teaching of evolution in public schools; in Edwards v. Aguillard, 482 U.S. 578 (1987), we invalidated a statute that required the teaching of creationism whenever evolution was also taught; today we permit a Court of Appeals to push the much beloved secular legend of the Monkey Trial one step further. We stand by in silence while a deeply divided Fifth Circuit bars a school district from even suggesting to students that other theories besides evolution–including, but not limited to, the Biblical theory of creation–are worthy of their consideration. I dissent. I don't know if Scalia's opinion qualifies as the most scientifically irresponsible passage ever — I am not sure that the scientific soundness of a school board policy is the proper measure of its constitutionality — but I see no defense of the reference to the Scopes trial. At best, it was an ill-considered rhetorical flourish. At worst, it reflected a shocking level of scientific illiteracy for such an esteemed and intelligent jurist.
If Justice Scalia's Tangipahoa Parish opinion is not the source of "the most scientifically irresponsible passage" ever to appear in a Supreme Court opinion, what is? Are there any nominations?
UPDATE: Several commenters have suggested that Justice Scalia's reference to "the much beloved secular legend of the Monkey Trial" was disparaging the historically inaccurate conventional narrative of what occurred at the Scopes trial. As Hans Bader notes in the comments, the trial was the product of a "collusive arrangement" to challenge a rarely enforced state statute. Moreover, as Jim Lindgren has noted, the pro-evolution textbook in question was horribly racist and tied evolutionary theory to eugenics and social darwinism.
Under this reading, the "secular legend of the Monkey Trial" to which Scalia refers is the myth that Creationists are (in Hans Bader's words) "a mortal threat to education and a free society," and the legend is "push[ed] . . . one step further" by excluding any reference to creationism from public schools. This is a reasonable interpretation of the reference, but I don't think it gets Justice Scalia off the hook. In the next sentence he suggests that evolution is simply one among many competing theories, "including, but not limited to, the Biblical theory of creation." This suggestion is certainly scientifically irresponsible, and was not necessary for Justice Scalia to make his doctrinal point. When placed in this context, I unconvinced that Justice Scalia's reference to the Scopes Trial was as benign as some suggest, though I open to being persuaded on this point.
A Contender for "Most Scientifically Irresponsible Passage":
In his post below, Jonathan asks, "What is the most scientifically irresponsible passage in the United States Reports?" There are lots of contenders, but one nominee might be another contribution by Justice Scalia, footnote 2 in Kyllo v. United States. Kyllo considered whether pointing an infrared thermal imaging device at a home constitutes a "search" under the Fourth Amendment. Justice Scalia concluded that it did, it part because the device allowed the police to gather information about the interior of the home, namely, its temperature. In dissent, Justice Stevens argued that using the device was not a "search," in part because the device only revealed information about the exterior of the home. Justice Scalia responded to Stevens in footnote 2: The dissent’s repeated assertion that the thermal imaging did not obtain information regarding the interior of the home, post, at 3, 4 (opinion of Stevens, J.), is simply inaccurate. A thermal imager reveals the relative heat of various rooms in the home. The dissent may not find that information particularly private or important, see post, at 4, 5, 10, but there is no basis for saying it is not information regarding the interior of the home. Whether Scalia or Stevens had the better legal argument is debatable. But my understanding is that as a matter of physics, Scalia was wrong and Stevens was right. My research into this suggests that infrared radition is surface radiation: it emanates from surfaces, down to a depth of about 1/1,000 of an inch. See MIKE LLOYD, THERMAL IMAGING SYSTEMS 2-5 (1997). As a result, an infrared image only reveals the temperature of a surface, not the temperature of the space behind the surface. So the device really did reveal only the exterior temperature of the home, not the interior of the home. Of course, it is possible to draw reasonable inferences about the likely interior temperature of a home from the home's exterior temperature profile. Assuming a steady state system, we can make reasonable assumptions about how houses are usually built (for example, that there are no heat sources in the walls themselves) to find out information about the interior temperatures. But that information is only as good as the assumptions themselves. For example, if someone made a wall that had an good insulator and then a heat source on the exterior, the exterior would be hot even though that temperature would tell us nothing about the interior of the home. None of this necessarily means that Scalia was wrong as matter of law, of course, but I believe he was wrong as a matter of physics. That's my best sense, at least; I hope readers will let me know if I'm the one who is wrong here. (Of course, if it turns out that Scalia was right, I suppose I'll have to designate this "the most scientifically irresponsible blog post at the Volokh Conspiracy"...)
Most Scientifically Irresponsible Passage in U.S. Reports:
How about this one, from Plessy v. Ferguson: "Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation." Here you have three incorrect, and quite damaging, "scientific" propositions: (1) That there are "racial instincts"; (2) That "physical differences" account for policies like segregation; (3) and that overturning a law that requires segregation will somehow inevitably result in exacerbated racial tensions. Note that the latter view was consistent with the view of many "Progressive" southerners of the late 19th century, who believed that by separating the races, government-ordered segregation would reduce racial tensions and ultimately benefit African Americans. Of course they were wrong, and the Supreme Court was even more wrong to make this into a scientific proposition. The Court could have, for example, simply state "some people believe this, so we'll defer to legislative judgment." The outcome would have been just as bad, but the Court would not have been endorsing a fallacious "scientific" proposition.
More on Heat Transfer and Thermal Imagers:
A number of commenters took issue with my claims about Justice Scalia's discussion about thermal imaging devices in Kyllo, and I wanted to blog more about it. I realize that there may be only 4 or 5 readers who actually care about this, but please pardon my geeking out: I spent five years before law school studying mechanical engineering, specializing (near the end) in heat transfer and fluid mechanics, so I'm probably a lot more sensitive to what I take to be Scalia's misstatement. But for whatever reason, it strikes me as an interesting issue. A number of commenters agreed with Scalia's suggestion that a thermal imaging device tells you the relative heat of various rooms in a house, because hot rooms will mean hot walls, cool rooms will mean cool walls, etc. To be clear, I think that this is often true. That why police might want to use thermal imaging devices, of course; they may ultimately want to collect evidence that might help make a showing about what's hapening inside the the home. Certainly that was the subjective intent of the officers in Kyllo: they wanted to learn something about the inside temperature of the home. But the issue here is physics, not the intent of some narcotics investigators in a particular case, and as a matter of phsyics it seems to me that Scalia's statement is often untrue. The fact that it is often untrue is what I think makes the claim scientifically irresponsible. For example, imagine a simple two-room house that is being monitored on a very cold day. Imagine we're looking at the house side by side, with room 1 on the left and room 2 on the right. Further, imagine that the walls on the left side of the house (around room 1) are very well insulated, that the walls on the right side of the house (around room 2) are very poorly insulated, and that the house has central heating that pumps an equivalent anount of heat into each room. If the police direct a thermal imaging device at the house, the device will tell them that the exterior of room 1 is relatively cold, but the exterior of room 2 is relatively hot. Does this mean that the interior of room 1 is relatively cold, and the interior of room 2 is relatively hot? It seems to me that the answer is no — in fact, the opposite is true. In room 1, the well-insulated room, the heat is being kept inside; it is heating the room, not pumping lots of heat to the exterior of the walls. As a result, the room with the cooler exterior will be warmer inside. On the other hand, the poorly insulated room, room 2, will have hotter walls but be colder inside. Now imagine that the homeowner brings a space heater into the poorly-insulated room, room 2, to bring it to the same interior temperature as room 1. The space heater will heat the exterior of the walls around room 2 even more: the exterior walls around room 2 would be significantly warmer than the walls around room 1. But the interior temperature of the rooms would be the same. As a result, the thermal imaging device won't tell the police anything about the relative interior temperature of the rooms; in this case, it will just tell the police about the relative insulation of the walls. As I said earlier, none of this is necessarily relevant to the constitutional issue. But it seems to me that Scalia's statement about what the imaging device necessarily does is really about what it can often be used to do, subject to a set of assumptions, and he was wrong to dismiss Stevens' point as somehow factually incorrect. UDPATE: Commenter T. Gracchus has a very good point: "Scientifically irresponsible" seems a rather agressive dscription. Your case about inaccuracy does nothing to establish that Scalia was irresponsible. In neither post have you given a hint of what you intend by "irresponsible." Do you just mean inaccurate? Excellent point; the phrase "scientifically irresponsible" was Jim Chen's, and I was interpreting it to mean only "scientifically inaccurate" without the suggestion of a moral wrong that might be associated with the concept of irresponsibility. My apologies if that caused confision.
Chen's Genesis for the Rest of Us:
Jim Chen defends his characterization of Justice Scalia's dissent from denial of certiorari in Tangipahoa Parish Board of Education v. Freiler as "the most scientifically irresponsible passage in United States Reports."
The most serious efforts to defend Justice Scalia's performance in Tangipahoa invariably deflect attention toward the seamier aspects of the Scopes trial. In a comment posted at Jurisdynamics and an earlier post at the Volokh Conspiracy, Jim Lindgren has detailed the racist and eugenicist cant of the textbook at issue in the Scopes trial. Edward Larson's reconsideration of Scopes, likewise aimed at defusing the cultural power of the admittedly fanciful Inherit the Wind, was deemed worthy of a Pulitzer Prize.
Whether couched as serious condemnation of early twentieth century social Darwinism or as a thinly veiled apology for creationist politics, efforts to deflect the debate to the particulars of the Scopes trial are beside the point. It's one thing to rehabilitate the misunderstood William Jennings Bryan, as Michael Kazin has heroicallly attempted. It's affirmatively noble to set the record straight on a hotly contested episode in American history. But it is downright disgraceful to write, as Justice Scalia did in Tangipahoa, that a school has any business "suggesting to students that other theories besides evolution -– including, but not limited to, the Biblical theory of creation -– are worthy of their consideration." I stand by what I wrote in Tangipahoa (the Jurisdynamics post) and in my article, Legal Mythmaking in a Time of Mass Extinctions.
Jim recognizes this subject is unlikely to die — just look at the repeated debates over the scientific (in)validity of "intelligent design" in the relevant comment threads on the VC. So, he is planning to offer something of a Festivus Genesis:
I shall now undertake an extended series on evolution, natural history, and naturalism as a source of inspiration, even religious satisfaction, for a world all too ready to rip itself apart over minute, offensively irrelevant theological differences. In a spirit no less playful than Seinfeld, I'll call the series Genesis for the Rest of Us. Those who know me intimately understand how profoundly my life has been shaped by the question, ¿Respecte usted la Virgen?, and how I answered it. This is not about what I believe or what anyone else believes. This is about the beauty and the power and the glory of the story of life, told as we best understand it to be the truth.
I look forward to Jim's series, and any discussion it may provoke.
UPDATE: For those who would like to know more about the Scopes Trial, check out Orin Kerr's review of Summer for the Gods here.
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