Science and the Law: Why Antonin Scalia is not just wrong, but incapable
Update: I’ve corrected the number of dissenters in this case from 3 to two, Scalia and Thomas, per Jason’s comment; Justice Sotomayor, newly arrived at the court, did not take part in this case.
Upfront: I’m not a lawyer, nor a regular student of legal matters, Supreme Court jurisprudence or Constitutional scholarship.
But such inconvenient facts should never stop a doughty blogger, so here goes.
Lee Kovarsky, a law professor at NYU, has a very smart guest post up at Obsidian Wings on the meaning of Justice Scalia’s dissent in the Troy Davis decision. In that decision a 6-23 majority of the Court sent Davis’s murder conviction back to Federal District Court to determine whether new evidence confirms Davis’s actual innocence. This outcome was genuinely new, the first time in 80 years that the Supremes have granted an original habeas petition, and the decision to pursue this particular line of court authority is itself entangled in Constitutional issues that Kovarsky touches on.
But I’m not here to talk about such legal issues — remember, I don’t know anything about them. Go read the link as a starting point into the pure law side of the matter if you are interested.
What caught my eye within Kovarsky’s gloss of and response to Scalia’s argument were at least a couple of levels on which science and law intersect in the controversy that Scalia’s claims have evoked.
In brief as Kovarsky tells it, Scalia follows the line of argument laid down by Professor Paul Bator who held that knowing “truth” is in essence impossible, at least within a legal context. Rather, the best one can ask of a judicial system is that a determination of guilt or innocence emerge from a recognizably consistent procedure.
That is not, as Kovarsky writes, a crazy position. It even has an echo of sciencey-ness. (What is blogging for if not to attempt stillborn neologisms?)
Think of the popular plain-language version of the interpretation of quantum mechanics that holds that what it is possible to know about a quantum system is not the behavior of the system itself. Rather, you know the what your instruments tell you. We can state the measurement to the limit of precision of a given experimental apparatus, but not the “real” nature of a wave/particle or whatever.*
But it is, as Kovarsky goes on to argue, an untenable one in light of the impact of modern science on criminal law. He cites specifically the impact of DNA evidence, though he notes that this is not the only technique that bears on determinations of guilt or innocence, and that it does not in fact apply in the Davis case.
His point, and it’s correct IMHO, is that it is no longer tenable to say that given the imperfection of human knowledge it is impossible for one court to come to a reliable determination of actual innocence, the “he-didn’t-do-it-for-sure” level of knowledge needed for a federal court to overturn a state court determination of fact (as long as there were no fatal defects in procedure).
Turn that convoluted sentence around: Kovarsky says that Scalia and Bator behind him fail to recognize that we now have ways of really knowing certain kinds of facts. Scientific advances allow us to state with great (not perfect, but great) authority that, e.g., if the relevant DNA at the scene does not belong to John Doe, then John did not commit that particular crime.
Given the existence of scientific procedures of such relevance to criminal justice, then the old view that human knowledge is so inevitably imperfect as to restrict the concern of appelate courts to procedure rather than matters of fact cannot be accepted.
The tricky part in the argument, at least from where I sit, is the ceding to scientific methods this level of authority. I don’t disagree — but the claim leads to the second level at which science intertwines with this case.
There is an argument within science — or at least, if not among scientists so much as within the broad area of science studies– about the quality of different kinds of scientific knowledge.
Within science studies there have been the radical views of the contingency of scientific knowledge, of course, which seem to me to be basically a red herring.** There have been a lot of much more persuasive (to me) work done on the impact of the sociology of scientific life and the economics or political economy of scientific research that do show how the making of scientific understanding is a human activity, prey to all the ills that may attach to our endeavors. And finally, scientists themselves are deeply aware of the issue of interpreting measurements. The question of what it is that a given procedure actually tells you is one that comes up in every single experiment.
The point for the court is that for all the sources of uncertainty in science that scientists themselves talk about and guard against in individual experiments and observations, there are, as Kovarsky points out, things you actually know to a satisfactory level of “truth.” And the use of DNA and other biochemical markers as exculpatory (or incriminating) evidence is one of them.
So, to buy Kovarsky’s argument, as I do, you need to buy the fact that when a scientific procedure returns a result, that result has meaning, one that is determined by a specific context of procedure and, in a sense, community standards of proper scientific process.
And one thing that interests me is that this is not part of the legal culture of knowing. In an advocacy based system, the quality of your facts is determined by the quality of the argument you can build to defend or destroy claims of “truth.” That’s a model followed in a lot of pseudo-scientific debates — see the strategies of argument advanced by ID/Creationist types (among whom I don’t think it accidental that one founding inspiration, Paul Johnson, was himself a lawyer), and those offered by climate change deniers. But its not the core of scientific argument, which has much more of “did you do it right” quality rather than “you have conceived of this procedure wrongly.” (Much more, I say, not “exclusively.”)
To wrap up: one of the trickiest things for a court has to be accomodating itself to real changes in human experience. Scalia’s position was always, I think, wrong in justice terms. It hasn’t taken DNA evidence to produce instances of people genuinely wrongly, and as Kovarsky also notes, there is no doubt that on the subsidiary question (perhaps primary to lawyers), state courts are not always reliable repositories of proper procedure. Deference to the actual flawed courts on the ground is granted on the basis of an image of the ideal courts of law school textbooks — but in practice one of the central premises of the Bator/Scalia position is false as a matter of empirical observation. In sum: it is a poor excuse for a judicial system if as a matter of formal principle there is no possible judicial way for a condemned prisoner to establish actual innocence.
But whether or not you agree with that view, it is observably true that human skill at learning facts and patterns of facts about the world has changed enormously over the last four centuries, and at an extraordinarily rapid pace in the last several decades. That transformation makes Scalia’s position wrong in essential terms as well — we can know things that his view asserts we cannot. That is an error that I believe his age, his education and his experience will make it vanishingly difficult for him to correct within himself.
And that leads to the twin editorial points of this story: scientific advance is not the only but it is a big reason why the premises of Constitutional originalism are shaky to the core. And Justice Scalia is a man past his time.
*Leave aside here the question of whether any such plain-language descriptions of the “meaning” of quantum mechanics help very much. I like them, and they help me think about some matters, but I’m sympathetic to a kind of schizophrenic view that we know the quantum world operationally, through experiences that include typing this on a device riddled with quantum physics, and mathematically, in a symbolic language that translates only imperfectly into the kind of statements like the one above. But here we enter an endless loop of late night dormitory discussions, in which this deponent falls silent.
**I think that studies of, for example, the contingency of class and knowledge do help in historical interpretation — no one, I think, doubts that it is valuable to understand Charles Darwin’s positioning in English and British society in grasping what he did and did not accomplish. But Darwin’s status as a member of a family clearly lodged within the industrial gentry does not alter the fact that his finches provide a powerful case study of evolution by natural selection in action. Again, a much longer discussion starts here, and here I get off, at least for now.
Image: William Hogarth, 1758.