A Disconnect: Science and the Supreme Court

By Rachel Pomerantz

Rachel Pomerantz is a rising freshman at the University of Pennsylvania.

Monumental judicial decisions aside, perhaps the most entertaining news coming out of the final days of the Supreme Court’s session was the annual spectacle of the running of the interns. [1] The Supreme Court does not allow audio recording while the justices read their opinions, so even though the decisions are eventually posted online, the quickest way for networks to break the news is to have their interns race paper copies of the opinions from the Supreme Court’s press office to the area where the networks are allowed to broadcast. While this event does result in some delightful pictures, it is also indicative of a larger problem in the Supreme Court: its struggle to keep up with the rapidly evolving scientific understanding of the world and technological advancements.

Now, to be clear, it is not the Supreme Court’s job to determine what is or is not scientific fact. In civil and criminal matters, juries answer disputed questions of fact, such as whether or not a suspect was present at the time of the crime, while judges and bodies such as the Supreme Court resolve questions of law, such as whether or not a police search of a suspect’s car is constitutional. Even though theoretically the Supreme Court’s only purview is the Constitution and other laws, it needs a thorough understanding of the scientific and technical issues at hand to accurately interpret those laws.

This has always been a burden placed on the Supreme Court, but recent rulings suggest that the justices have only partially absorbed the requisite body of knowledge.

The Court’s dearth of information is neatly summed up in Justice Antonin Scalia’s assertion at his granddaughter’s high school graduation that “humanity has been around for at least some 5,000 years or so.” [2] In case there is any confusion, humans were around over 6 million years ago, and even by more conservative standards, Homo sapiens appeared around 200,000 years ago. Of course, a factual error during a high school graduation speech is not the core of this problem, though the degree of inaccuracy is not that far off from those in actual Supreme Court cases.

In 2013, the Supreme Court ruled against Myriad Genetics, which had discovered the “precise location and sequence of” two genes, BRCA1 and BRCA2, “mutations of which can substantially increase the risks of breast and ovarian cancer.” [3] The Court’s 9-0 decision found that naturally occurring segments of DNA are not eligible for patents because they violate the Patent Act’s stipulation that eligible material cannot be “products of nature.” However, the court also found that complementary DNA (cDNA), a derivative of DNA that can be used to grow in bacteria, is patentable.

This case was important, not only due to its immediate consequences for those hoping to run tests related to the BRCA genes but also for the broader field of genetics, which impacts everything from medical treatments to our understanding of human behavior. For such a significant undertaking, it is worrisome that the Court displayed a “sketchy understanding of molecular biology.” [4] This led to the judicial opinion trying to draw technical distinctions between DNA and cDNA while missing the larger picture that the information that these types of DNA convey should be the primary focus.

A more recent case literally put lives at stake. On June 29th, the Court announced a 5-4 decision in favor of Oklahoma and its use of midazolam as the first part of a three-drug cocktail in a death penalty execution by lethal injection. Midazolam is a sedative that Oklahoma uses as a substitute for barbiturates such as thiopental and pentobarbital, since drug manufacturers will no longer sell the barbiturates to states. [5] The purpose of midazolam is to make the person unable to feel the pain of the next two drugs, which actually paralyze and then kill him or her.

In the majority opinion, Justice Alito wrote, “Testimony from both sides supports the District Court’s conclusion that midazolam can render a person insensate to pain.” [6] While midazolam can act as an anesthetic, it is markedly different than the barbiturates that it is supposed to replace, which calls into question the constitutionality of the drug. A neutral amicus brief filed by sixteen professors of pharmacology explains that while the barbiturates are capable of inducing a deep unconscious state, midazolam will not work for long enough, regardless of the dose, or produce a deep enough depression of the central nervous system to be an effective first drug in the lethal injection cocktail. [7] There is a huge difference between a drug being able to accomplish the generic task of stopping someone from feeling pain and rendering that person unable to feel the pain of two lethal injection drugs. While this distinction should play into the Court’s determination of whether or not the use of midazolam is cruel and unusual under the 8th Amendment, it apparently did not. As a result, a drug that experts in the field believe will fail to stop someone from feeling excruciating pain will now continue to be used in lethal injections.

Unfortunately, there is no simple fix to this issue. Still, it deserves acknowledgment and at least the beginning of a public discussion about the Supreme Court’s disconnections from science and technology that are far more serious than its insistence that network interns act as carrier pigeons.



[1] Dooley, Erin. "Running of the Interns: This Is What a Mad Dash Outside the Supreme Court Looks Like." ABC News. June 25, 2015. Accessed June 26, 2015. http://abcnews.go.com/Politics/running-interns-mad-dash-supreme-court/story?id=32024853.
[2] King, Barbara. "Justice Scalia And The Age Of Humanity." NPR. June 19, 2015. Accessed June 28, 2015. http://www.npr.org/sections/13.7/2015/06/19/415701069/justice-scalia-and-the-age-of-humanity.
[3] Liptak, Adam. "Justices, 9-0, Bar Patenting Human Genes." The New York Times. June 13, 2013. Accessed June 28, 2015. http://www.nytimes.com/2013/06/14/us/supreme-court-rules-human-genes-may-not-be-patented.html?_r=0.
[4] Prywes, Noam. "The Supreme Court Has a Disturbingly Sketchy Understanding of Molecular Biology." Slate Magazine. June 14, 2013. Accessed June 24, 2015. http://www.slate.com/articles/health_and_science/science/2013/06/supreme_court_patent_case_science_the_justices_misunderstand_molecular_biology.htm
[5] Cara, Ed. "Why Do Doctors Want Midazolam To Stop Being Used For Lethal Injections?" Medical Daily. June 29, 2015. Accessed June 29, 2015. http://www.medicaldaily.com/what-midazolam-why-are-doctors-worried-lethal-injection-drug-wont-sedate-death-row-340468.
[6] Caspari, Sarah. "Supreme Court Allows Controversial Lethal Injection Drug." The Christian Science Monitor. June 29, 2015. Accessed June 29, 2015. http://www.csmonitor.com/USA/USA-Update/2015/0629/Supreme-Court-allows-controversial-lethal-injection-drug-video.
[7] Cara, Ed. "Why Do Doctors Want Midazolam To Stop Being Used For Lethal Injections?" Medical Daily. June 29, 2015. Accessed June 29, 2015. http://www.medicaldaily.com/what-midazolam-why-are-doctors-worried-lethal-injection-drug-wont-sedate-death-row-340468.

Photo Credit: Flickr User Randi Duero 

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.