SCOTUS BRCA Gene Ruling: Justice Scalia Reveals Ignorance in Gene Patent Decision


On Thursday morning, June 13, the United States Supreme Court ruled 9-0 that isolated human genes are not patentable. Despite the one-sided ruling, however, Justice Antonin Scalia once again took the opportunity to showcase his rejection of otherwise undisputed knowledge, which brings into question his own authority as a Supreme Court justice.

The case, Association for Molecular Pathology v. Myriad Genetics, Inc., dealt with patents held by Myriad Genetics for the BRCA1 and BRCA2 genes, which have connections to risk for breast and ovarian cancer. The ruling seems fairly straightforward: in the opinion written by Justice Clarence Thomas, the Court ruled that "[a] natural occurring DNA segment is a product of nature and not patent eligible." Not much to talk about, right?

Yet, despite the Court's unanimous ruling, not every justice signed Thomas's opinion. Scalia chose to write his own concurrent opinion, so as to set the record straight on a few matters. What matters, exactly? Well, basic facts of science, it appears. Scalia wished to distance himself from the rest of the Court concerning the "fine details of molecular biology," citing that he is "unable to affirm those details on [his] own knowledge or even [his] own belief."

If Scalia wants to admit his lack of understanding on the subject of molecular biology, fine. He's a Supreme Court Justice, not a molecular biologist. But it's the second part of that sentence that is irksome. With his concurrence, Scalia isn’t simply acknowledging his ignorance on the subject; he’s asserting that, perhaps, he doesn't even believe in it ... "it" being scientific fact, the kind of information written in textbooks. One of the highest nine justices in the country questions his own belief in science.

And this isn't the first time Scalia’s had a run in with well-regarded information grounded in science. As recent as March, when the Supreme Court heard arguments on gay marriage, Scalia noted that "there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not." But that isn't true. There is a "growing consensus" that parental sexual orientation doesn't have much of an impact. The American Sociological Association, the group that would know if there was indeed disagreement among sociologists, wrote, "The clear and consistent consensus in the social science profession is that … children fare just as well when they are raised by same-sex parents." It isn't biology, but it's still science, and another example of Scalia coming down on the wrong side of the evidence.

The Supreme Court's gene patent case should have been an uncontroversial ruling. The American Civil Liberties Union was vocal in their support for the Court's unanimous decision. Yet Scalia, with his concurrence, makes an issue not over the matters of the case, but over his own beliefs in science. When a Supreme Court Justice is on shaky ground when it comes to scientific evidence, it undermines his authority on matters that are far less clear-cut than fact. If one can't appeal to Scalia on matters that are unquestionably true, there isn't anything keeping him from ruling on cases however he pleases, regardless of evidence.