With science, justice is blind and ignorant
Courts like to build on precedent, but scientific knowledge shifts fast
Attorneys like to joke that they went to law school to avoid math and science. But those disciplines are getting harder to ignore, as any patent litigant or fan of "CSI" can attest.
University of California law professor David Faigman is one attorney who hasn't shied away from insisting that judges stay up to speed with scientific knowledge.
In his second book, "Laboratory of Justice," he sets out to chart how poorly the US Supreme Court has struggled to integrate science and the law. The nation's highest court, he charges, is at best uncomfortable and at worst "slap dash sloppy" in its dealings with science.
Admittedly, science has played an ignominious role in Supreme Court cases dating as far back as the 1857 Dred Scott decision that affirmed slavery before the Civil War. And in cases regarding race, sterilization, and the internment of Japanese-Americans, the court relied on primitive and misguided theories.
Even when the nation's high court reaches the "right" conclusion, the evidence the judges rely on can be surprisingly thin, as was the case in its Brown desegregation decision 50 years ago. That decision was the first in which social science played an important role, but five decades later, you might cringe at the weaknesses of Prof. Kenneth Clark's research, using dolls, on the psychological effects of segregation on black children.
The problem isn't just ignorance or intellectual laziness. By their very nature, courts are supposed to be conservative institutions - tethered to precedent and uncomfortable with novel approaches. Faigman rightly asks, How should the court rely on scientific facts in building precedents if those facts may change as scientific knowledge advances?
Unfortunately, that theme, set forth so neatly on the book jacket, is often missing inside as we wade through chapter after meandering chapter of Faigman's ambitious history of jurisprudence of the US Constitution that starts before the document was even signed. Here in one volume are all the subjects you'd find in a semester of constitutional law: equal protection, privacy, religion, free speech. But this isn't really what we're after.
Readers are introduced to the lions of the bench, from Oliver Wendell Holmes to Louis Brandeis and Felix Frankfurter, as well as justices that history has been less kind to, such as Roger Brooke Taney, author of the Dred Scott decision. But too much space is eaten up by irrelevant, albeit interesting, asides such as Taney's personal misfortunes.
It's not until about a third of the way into the book that the thread of science emerges. And not until the last chapter does Faigman look forward by raising the prospect of future cases about new reproductive technologies and the use of DNA to predict a person's potential for committing a crime.
Almost as an aside, Faigman mentions having interviewed three of the nine sitting Supreme Court justices - John Paul Stevens, Sandra Day O'Connor, and Stephen Breyer. They offer no bombshells, but their candid answers about how the court should look for scientific facts are enlightening nonetheless. It's too bad Faigman didn't give more space to their insights rather than to historical trivia.
• Seth Stern is a legal affairs reporter at Congressional Quarterly in Washington.