Scalia's Assholery

by Paul Siciliano

Scalia relaxing at home.

Scalia relaxing at home.

With major Supreme Court decisions coming up on the Voters Rights Act, affirmative action, the Defense of Marriage Act and gay marriage, one expects Justice Scalia's desire to be an asshole to be in full gear.  Well, he started early with his concurrence in today's decision, Association for Molecular Pathology v Myriad Genetics .  The decision itself was non-controversial and a relief to many who feared that companies would be able to patent parts of human DNA which they are able to isolate and identify.  

For some reason, Justice Scalia decided that he was not going to agree with the Court when it came to a discussion of genetics and molecular biology.  Scalia writes:   

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 complementary DNA (cDNA) is a synthetic creation not normally present in nature.

There is no reason for Justice Scalia to make a point of this unless he is trying to make a point - which is that he really doesn't believe in the study of genetics.  (Go read Thomas's opinion at I-A and see to what Scalia is opposing).  

The Supreme Court, as an appellate court, is never sure of the facts of the case and take them as they are presented.  Read any criminal Supreme Court decision - the Justices just accept a certain set of facts, it is what they do.  But, they never go out of their way to say that they refuse to agree with the facts because they have no personal knowledge or belief in the case.  Besides, a summary of the facts is not law and has no real binding effect. 

This is Justice Scalia being what he is - an asshole, and it has only intensified since he has been on the bench.  Back in my days at law school, classmates always claimed how dangerous Scalia was because he was smart and made great arguments.  I didn't buy it back then, and I don't buy it today.  (I am sure they all read some article about it and just repeated it verbatim.)  Scalia is nothing more than a political hack who cloaks himself in some form of jurisprudence when it suits his purpose and will trash it when it does not reach the desired result.  (He is also responsible for the horrible line of cases following Crawford  about when hearsay evidence is admissible in a criminal case.  Sorry, I am digressing.)  

I am eagerly awaiting to see what Scalia has to say about the more controversial decisions coming up in this term.  If he decides to gut the Voter's Rights Act because he feels Congresspeople would never vote against a bill with that name I am going to puke!