This article is adapted from an 8 August post on FYI, which reports on federal science policy. Both FYI and Physics Today are published by the American Institute of Physics.
A major decision from the US Supreme Court in June has judicial education organizations evaluating whether they need to offer more scientific resources to federal judges and their staffs.
In Loper Bright Enterprises v. Raimondo, the justices determined that courts no longer have to accept federal agencies’ interpretation of laws passed by Congress. The ruling overturned the 40-year-old deference doctrine established under Chevron USA v. Natural Resources Defense Council, in which courts had been instructed to defer to an agency’s interpretation of ambiguous statutes if the interpretation was reasonable. Now that the judiciary must decide whether the law should be interpreted as agencies say, judges in scientific cases will be responsible for understanding technical concepts that previously would have been the realm of subject-matter experts.
Judges will need to grapple with scientific evidence more directly in some cases, says Theresa Harris, director of the Center for Scientific Responsibility and Justice at the American Association for the Advancement of Science (AAAS). Such cases will also come up more frequently as regulated entities bring challenges to agency rules in hopes of overruling current interpretations, she adds.
Current and future resources
The primary source of educational materials for federal courts is the Federal Judicial Center, which researches topics on request and creates training materials. Its role is similar to that of the Congressional Research Service for Congress. The center’s main scientific resource is the Reference Manual on Scientific Evidence, last published in 2011 in collaboration with the National Research Council. Harris describes the manual as the “gold standard” of judicial science resources.
Julie Linkins, director of the Federal Judicial Center’s education division, says it is too soon to tell whether judges will need more scientific resources because of the Loper Bright ruling. “Over time, we’ll see whether the judiciary needs to enhance its scientific expertise or whether the mechanisms already in place are sufficient to address the need,” Linkins writes in an email. “It’s something we’ll be paying attention to as cases play out in the courts.”
The AAAS center directed by Harris has offered courses for judges on neuroscience, the science behind the opioid epidemic, and climate science. (The climate course is co-organized by the Environmental Law Institute.)
With the Chevron ruling spurring more interest in judicial education, the AAAS center is planning a new program that offers scientists a clear path for getting involved in judicial education. It would train them to teach judges effectively and to bring more scientists and judges together in conversation. “Creating a larger group of people who can navigate and straddle both science and law is really what we’re aiming for here,” Harris says.
Loper Bright is not the only reason why judges increasingly need deeper scientific understanding, according to Harris. “There are also emerging areas of science that are simply moving more quickly than legislation,” she says, citing artificial intelligence as an example. “And when that happens, the courts have the front line.”
Judges as journal editors
Many judges are not science experts and do not have experts on their staffs. Some may have the view that judges would be biased if they are “too specialized” and have a scientific background in the subject they are ruling on, says Shubha Ghosh, a law professor at Syracuse University who previously worked at the Federal Judicial Center as an AAAS Science and Technology Policy fellow.
“It’s great to have that knowledge, but to what extent will they use their own knowledge to supersede the evidence in the case?” Ghosh says. “Because judges are supposed to just look at the evidence of the cases presented by the parties and then make some sort of determination.”
At the same time, judges need to assess whether each side’s witnesses are indeed experts and whether the science they present is relevant to the case. “You can think of the plaintiff or the defendants as [people who] tried to submit peer-reviewed publications to a journal,” says Reshmina William, another former AAAS Science and Technology Policy fellow for the Federal Judicial Center. That makes the judge “analogous to a journal editor,” she adds.
William says that in the wake of the Loper Bright decision, she would like to see more discourse between judicial professional associations and scientific associations. Longer term, she says, judicial employees would benefit from stronger math and science requirements in their legal education.
“When you start putting scientists and prelaw students in two different tracks and say, ‘Okay, prelaw students, you no longer have to take a math class ever again,’ you’re setting yourself up for failure,” William says. “I think that this is a question of comprehensive curriculum reform.”
