[T]he really creative legal thinkers of the future will [. . .] more and more look behind the pretty array of “correct” cases to the actual facts of judicial behavior [and] will more and more look behind the traditionally accepted principles of “justice” and “reason” to appraise in ethical terms the social values at stake in any choice between two precedents.

— Felix S. Cohen

Justice Breyer wrote at the turn of the century, “[i]n this age of science, science should expect to find a warm welcome, perhaps a permanent home, in our courtrooms[,]” for the resolution of “basic questions of human liberty” often “demand[s] an understanding of scientific matters.” For example, in 1997, the justices needed to develop informed understandings of the relevant scientific arts while reviewing whether the U.S. Constitution confers a right to die with dignity and whether psychopathology could constitutionally justify indefinite, noncriminal confinement. As the justices learned and computed scientific consensus and facts of nature, their work reflected what Felix S. Cohen considered a “functionalist” approach to questions of constitutional fundamental rights. In contrast though, the 21st Century Supreme Court has moved more toward what Cohen termed in 1935 “transcendental nonsense”—the piecing together of rules abstracted from precedential rulings to resolve a new set of facts with neither “any consideration of the practical consequences” of the decision nor appraisal, in ethical terms, of the social values at stake in deciding which precedents to maintain.

This Note argues that both trial and appellate judges have an ethical duty to grapple with the medical impacts of their rulings and to defer to scientific experts for proper interpretations of scientific evidence before them. As we will see in the example of the recent mifepristone challenge in federal court, non-scientists can easily misinterpret and misapply scientific studies; this Note argues that judges have an ethical duty to guard against such abuse. On the other hand, as we will see in a discussion of lab techniques in a challenge against acetaminophen, judges also have a duty to listen to each side’s assessment of proffered scientific evidence to hear expert critiques of experimental methods. 

These ethical duties for judges can be considered as arising from the ABA’s Model Rules for Professional Conduct (MRPC) 8.4(c) and (d): a lawyer cannot “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” nor can a judge “engage in conduct that is prejudicial to the administration of justice.” To let “junk science” stand as evidence; to interpret a scientific study that was done without intention of being applied in court against the conclusions of scientists who conducted it; or to overlook scientific, medical, and statistical evidence presented to the court altogether could all be considered to be misrepresentative or unnecessarily prejudicial. Thus, in addition to grappling with evidence presented, judges must recognize their own limited experience and therefore defer to scientific expertise. This provides for a functional assessment of the matters at hand and informed, ethical application of case law—as opposed to more simply picking from an array of precedents available in the court record. 

The less functionalist choosing of precedents, including a mix of centuries-old traditions and more recent court opinions that are countervailed by others, effected the overturning of Roe v. Wade, which has placed many women in medical peril. A specific path through legal precedents provided for using the least scrutinous level of court review to evaluate a challenged abortion restriction. While a physician or layperson would likely see that being a pregnant woman bears a status uniquely affected by abortion-restricting laws, judges excessively focused on precedents and pre-Nineteenth Amendment history can find it prudent to exclude medical outcomes while resolving the legal question; this is what the Dobbs majority opinion did.

Thus, this Note proposes that in their efforts to make ethical rulings, judges and justices should weigh scientific and statistical evidence heavily in health-related cases and should have trusted neutral experts at the ready to apprise the court of scientific consensuses on predicted outcomes from certain changes in law. Given how amici often bear partisan valences that may bias a judge’s construction of their arguments, judges’ access to and consideration of trusted scientific interpreters from within the courthouse may effectuate both more accurate and more capacious reasoning; hearing the likely health-related effects of their decisions from closely trusted scientific interpreters may spark more frequent functionalism like that applied in many 20th Century landmark opinions. This could be especially helpful as the recent overturning of “Chevron deference” promises to bring many novel questions regarding modern medicine, environmental science, and technology to the bench. 

With this in mind, this Note will explore federal courts’ applications of science (or lack thereof) in controversies over medical matters. Part I will compare good science applied by district trial judges in a sample of FDA cases to dangerously poor science in one recent case. Parts II, III, and IV will then look at how the sidelining of science in the landmark Dobbs ruling contrasts with health science’s influence in past critical Supreme Court rulings, including Justice Harry Blackmun’s Roe opinion. Part IV will also probe problems arising when a justice erroneously infers a scientific conclusion themself. Finally, Part V will contemplate policy proposals for cultivating greater friendship between appellate judges and scientific experts, including the idea of requiring that some of the closest friends of the court—the law clerks—should have prior education in science or technology.

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