Supreme Court Justice Takes a Micro View of Microbiology

As the Supreme Court’s term winds down, the Court has begun releasing its opinions in some of the term’s more controversial cases. Yesterday, it issued its unanimous opinion, authored by Justice Clarence Thomas, in Assoc. for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. ___ (2013), in which it held that naturally occurring DNA is a product of nature and cannot be patented, but that synthetic DNA is patent eligible.

While the Court’s decision was unanimous, Justice Antonin Scalia wrote separately, concurring in part and concurring in the judgment of the Court’s opinion, to add the following:

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. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complimentary DNA (cDNA) is a synthetic creation not normally present in nature.

Myriad Genetics, 569 U.S. at ___ (Scalia, J., concurring).

Part I-A of the Court’s opinion, which Scalia would not join, is an introductory section, which begins, “Genes form the basis for hereditary traits in living organisms.” Id. From there, it sets out, over the course of four paragraphs, some background facts about DNA and genetic science.

Many might consider Part I-A to be “high-school-level stuff,” leading to the Gawker headline, “Antonin Scalia Does Not Believe In Molecular Biology.” After all, he did write that he was “unable to affirm those details [contained in Part I-A] on my own knowledge or even my own belief.” But is that what he really meant?

The next sentence is telling: “It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that . . . .” The first clause, “It suffices for me to affirm,” evidences Scalia’s view that Part I-A is superfluous. “High-school-level stuff.” Not necessary to be included in the Court’s conclusion. Pointing out that the majority opinion contains some fluff does not seem like a reason to file a separate concurrence, however brief, though.

The second clause is more interesting: “. . . having studied the opinions below and the expert briefs presented here . . . .” It is that clause, I think, that illustrates the purpose of Scalia’s separate concurrence. His mission appears to be one of resisting the Court’s engaging in its own fact finding.

The general rule is that the determination of facts in a case is something that happens at trial; once a case goes up on appeal, there is no opportunity to introduce additional evidence. Further, and subject only to narrow exception, neither trial courts nor appellate courts should be conducting their own factual investigations or presenting evidence of their own determination in a case. What Scalia appears to be doing with his concurrence in Myriad Genetics is reminding the Court, sitting as an appellate court, that the material that it may consider in rendering its opinion generally is limited to “the opinions below and the expert briefs presented here.” The factual information contained in Part I-A of the majority opinion, however elementary, had not been previously introduced in the case (we can assume).

Scalia has made this same point as recently as the City of Arlington v. FCC case earlier this term. There, Scalia wrote the majority opinion. In the first footnote, after he introduced one of the parties, he wrote:

This is not a typographical error. CTIA–The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

City of Arlington, 569 U.S. ___, n. 1 (2013). Some called this footnote “really dumb” and “silly.” I think it is petty, but I also think it is getting at the same point he was pressing in his Myriad Genetics concurrence: the Court’s review of factual information pertinent to a case before it generally is limited to the information the parties present to it. The converse provides a basic lesson for litigants: be sure to present a court with all of the information it needs to reach a ruling.

Granted, neither Myriad Genetics nor City of Arlington raised an issue of judicial factfinding that affected the merits of those cases. Perhaps Scalia simply saw a safe opportunity to make a point of technical judicial minutiae. Perhaps he simply was being a stick in the mud. Both possibilities seem equally likely. A third possibility, suggested by a comment on the Gawker post, is that Scalia’s Myriad Genetics concurrence was an exercise in humility, “a confession that there are some things ol’ Antonin just doesn’t know.” To say the least, such a confession would seem out of character for Scalia.