Scalia Dissents On Molecular Biology

by Stuart Shapiro

The Supreme Court issued a decision today forbidding the patenting of genes. The most interesting aspect however may have been the concurrence by Justice Scalia.

While he “joins the judgment of the court,” Scalia wrote, he won’t sign on to “Part I–A and some portions of the rest of the opinion going into fine details of molecular biology.” Why? Because he can’t “affirm those details on [his] own knowledge or even [his] own belief.”

So what is Part I-A? Sounds like some pretty out-there stuff. It begins: “Genes form the basis for hereditary traits in living organisms.” It holds that genes are “encoded as DNA, which takes the shape of the familiar ‘double helix,'” and describes the chemical structures of DNA. It tells, in basic terms, what DNA is and how it works, ending with: “the study of genetics can lead to valuable medical breakthroughs.” It literally makes no other claims—it is a dry recitation of genetic science. High-school-level stuff.

Scalia can’t fully join his fellow justices because he doesn’t believe in genes.

I wonder when he is going to dissent on a decision because he is not convinced the earth is round.

By: Stuart Shapiro

Stuart is a professor and the Director of the Public Policy
program at the Bloustein School of Planning and Public Policy at Rutgers
University. He teaches economics and cost-benefit analysis and studies
regulation in the United States at both the federal and state levels.
Prior to coming to Rutgers, Stuart worked for five years at the Office
of Management and Budget in Washington under Presidents Clinton and
George W. Bush.