It’s official: President Donald Trump’s long-awaited pick for the Supreme Court has seen staunch conservative Judge Brett Kavanaugh nominated as the next Supreme Court Justice. And it’s an appointment that doesn’t bode well when it comes to the way our justice system handles scientific evidence. Indeed, Kavanaugh’s lackluster record in paying heed to science in critical rulings sets a dangerous precedent that will only further ensure the marginalization of facts in favor of shoddy science.
Kavanaugh previously served on the D.C. Circuit Court of Appeals for 12 years following his appointment by then-President George Bush, and his track record there leaves scant hope for his upcoming tenure. “Global warming isn’t a blank check” for the regulation of carbon emissions, Kavanaugh has steadfastly claimed, justifying a now longstanding propensity for elevating legalities over the responsibilities and expertise of government agencies. “He writes as if he knows better than [government agencies]”, says Ken Kimmel, president of the Union of Concerned Scientists.
Indeed, he’s had a special bone to pick with the Environmental Protection Agency. In 2012, the EPA called for 28 states to reduce their smog emissions where pollutant fumes containing sulfur dioxide and nitrous oxides were seen to cause widespread health problems by drifting across state lines. Kavanaugh struck down the rule, siding instead with polluting states and industry representatives. Other emissions restriction plans by the EPA have similarly fallen victim to Kavanaugh’s pen, with the judge apparently unmoved by the devastating evidence presented each time.
But Kavanaugh’s nomination goes beyond emission rules, with the capacity to influence the way not only the Supreme Court, but even the entire justice system, handles scientific evidence. After all, Kavanaugh’s ascent comes at a time when science is becoming more and more a deciding factor in trials. With subject matters becoming increasingly complex, judges must now regularly develop an informed, if admittedly approximate, understanding of scientific issues in the specific contexts of each case. Failing to do so means that expert testimonies would have to be taken at face value without mitigation – a determination that is hardly a good basis for fair judgement.
Being presented with complex and conflicting messages, judges’ ability to comprehend science-based evidence cannot be overstated. But as scientific findings are fast taking a central theme in court cases, the role of scientists is becoming more prominent as well. However, this makes the quality of a scientific assessment and presentation of the facts a key factor and raises the question: what if the scientists called to the stand are of limited credibility?
This question is at the center of an ongoing lawsuit in US District Court in San Francisco, arguing that glyphosate, a widely-used herbicide, causes cancer. The case was given the green light to be heard on July 10th after years of litigation and hearings, in the wake of a study that assessed the herbicide to be probably carcinogenic. The authors of the study include scientists Dr. Christopher Portier and others at the International Agency for Research on Cancer (IARC), a branch of the World Health Organization.
The defendants in the case at hand have called Portier and several of his colleagues to testify, but their trustworthiness has been called into question by a number of issues. For instance, a Reuters report from 2017 revealed that Portier and his colleagues had edited out evidence contradicting the findings of their glyphosate study, going so far as to remove entire sections from a draft version that were never published. Most recently, emails overturned by Politico show that while working at IARC as an invited specialist, Portier endeavored to minimize reputational damage to the agency’s glyphosate review by criticizing contradictory assessments, such as one by Germany’s Federal Institute for Risk Assessment.
With these sorts of developments casting doubt on the integrity of both the IARC study and the researchers that carried it out, the presiding judge Vince Chhabria has called the evidence that glyphosate causes cancer “rather weak”. Nevertheless, they will have the ear of a judge in what is set to be a landmark ruling for the agricultural industry.
If the glyphosate case is a testing ground for science in law, then an even bigger arena is climate change. A prime example of the ever-converging spheres of science and the law, recent years have seen an upsurge in the number of legal disputes over actions, or lack thereof, related to climate change mitigation. Some 1,200 climate change laws are now in place globally, and the coming years are likely to bring sustained efforts to strengthen existing laws and fill remaining gaps. Thus far, litigation strategies have been a double-edged sword for those seeking action on climate change, pitting civil society and governments against corporations that are seeking to limit climate laws as much as possible.
At the same time, the conclusions drawn from science and their implications for justice are not always inherently uncontroversial. The 2006 Bradley Waldroup murder case is a prime example. During his trial for murdering his wife and her friend, Waldroup’s defense attorney presented evidence from a blood sample that determined Waldroup to possess a genetic variant linked to aggression. The scientists involved in the case, forensic psychiatrist William Bernet and molecular geneticist Cindy Vnencak-Jones, suggested the gene contributed to an inability to control his behavior.
The argument that Walgroup’s genetic propensities played a crucial part in his behavior was a success: initially charged with first- and second-degree murder for the two deaths, Waldroup was convicted in 2009 of voluntary manslaughter and attempted second-degree murder, dodging the death penalty in the process. The complexity of the scientific element in Waldroup’s case has given scientists an ever-more prominent position in the courtroom, even if moral questions surrounding the validity of genetic make-up as a factor diminishing guilt remain unsolved.
For the Supreme Court, the rulings of lower courts, relating to climate change, carcinogenicity or murder, establish important precedents for its own decisions where the adequate treatment of science is pivotal. But through Kavanaugh’s appointment, the Supreme Court will acquire an anti-science tilt. With Kavanaugh on board, chances are that shoddy science and those that pursue it will be given a pass at the US’s highest judiciary body.