I recall shaking my head in law school when one of my professors said that a benefit to becoming a lawyer is the opportunity to become an expert in the subject matter of the cases you argue. Maybe it was the first sign that I was entering a profession where the value and use of expert evidence in judicial decision-making was on a sharp decline. As someone who is a professional in another field, it is difficult to understand how those in the legal profession believe knowledge acquired solely via legal challenges is superior to data and actual expert testimony. Yet, in the last few years, judges have proven they are more than willing to ignore rules of evidence, ignore case law, and impose their will on all subjects argued.
The editors of Scientific American wrote an editorial this summer decrying that “Evidence Shouldn’t Be Optional.” The piece emphasizes what we at the Freedom From Religion Foundation have been saying: The Supreme Court is putting special interests above facts and expert testimony in their decisions. Specifically, the editorial calls foul on the decisions on abortion, gun rights, and the authority of the EPA to regulate carbon emissions. In such cases, the court ignored evidence that abortion is safer than pregnancy, that unrestricted access to guns causes more murders and suicides, and decided that limiting agency power was more important than curbing the harmful effects of greenhouse gases. “The justices in the majority show that ignoring science and evidence is their modus operandi,” the editorial states. It ends with a plea: “Let evidence rule judgment.”
Judges do have an important role in deciding what evidence is allowed in trials; this is referred to as judicial gatekeeping. For evidence to be allowed into a trial, it must comply with the Rules of Evidence. The goal of these rules is to ensure admitted evidence is relevant to the issue argued, reliable and helpful. In a very important case, Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court set guidelines for what factors should be weighed to determine if scientific evidence is admissible. In Justice William Rehnquist’s opinion in the case (concurring in part and dissenting in part), he agreed that judges should have some gatekeeping responsibility, but cautioned this role does not give them “the authority to become amateur scientists.” Black robes, not white coats.
The pandemic provided ample opportunities for judges to veer out of their lanes and flex their (lack of) scientific expertise. The Supreme Court decided some Covid-related cases on its shadow docket, which means the court made its decision without a full briefing. But the court had no need to acquire more information when it was more than willing to ignore what was already in the record. As Justice Elena Kagan noted in her dissent in Tandon v. Newsom, the court had no right to ignore the uncontested testimony of public health experts in a case that was based on public health risks. Yet the majority did just that in deciding that attending church services during the pandemic posed no greater health risk than going to a grocery store.
I was particularly annoyed by Justice Neil Gorsuch wielding his (lack of) newly acquired knowledge of herd immunity in his angry dissent to the denial of an injunction for Dr. A v. Hochul, more commonly known as the New York health care worker vaccine mandate case. Gorsuch admitted that herd immunity might be a compelling state interest to justify a mandate, but, even if that was the case, religious exemptions must be allowed in equal numbers to secular exemptions. In his scenario, the “particular number” required to achieve herd immunity would have to be divided equally between those who would suffer a spiritual injury and those whose actual health could be at risk with a vaccine. I think it is likely Gorsuch never heard the term herd immunity prior to the pandemic. The “particular number” he cites cannot be defined to a precise digit any more than ETA is a precise time. Gorsuch’s requirement for a “one-to-one comparison” of exemptions would also defeat another important component to achieving herd immunity: time. Fortunately, his (lack of) scientific expertise was limited to a dissent.
Courts also weighed in on using ivermectin to treat Covid in hospitalized patients. Licensed medical professionals willing to prescribe ivermectin to patients exist, even with the paucity of evidence to support its use; conspiracy theorists and opportunists come in all shapes and sizes. Legal challenges arose when hospitals did not allow treatment with ivermectin because it did not satisfy the standard of care at the hospital — or the medical field generally. The hospitals also would not allow medical professionals who did not have privileges at their hospitals to administer the drug. Even though these restrictions protect patients, patients — or, more frequently, a person with a legal right to make health decisions for the patient who was incapacitated by Covid — insisted that the hospitals administer ivermectin or grant privileges to someone who would. Unfortunately, some lower courts decided that a patient has a right to force a hospital to treat as the patient dictates.
Some of these bad lower court decisions made their way through the appeals process and have been reversed. Even when the patients in question were released or deceased, which would usually result in dismissal of the case, the legal question of whether patients have the right they asserted is an important question that courts recognized needs an answer for future guidance. Generally, the appeals courts have been quick to point out that there is no legal right for patients to compel a treatment. In such a case in Pennsylvania, Shoemaker v. UPMC, the court stated it well: “There is no precedent or applicable law to support the proposition that a patient has a legal right to demand a particular medical treatment against the advice of their treating physicians, to compel a hospital to allow the administration of a medical treatment that contravenes its own hospital policy, or to force a hospital to issue credentials to a physician to administer such a treatment.” The court quoted a similar case in Texas in which the court advised: “The judiciary is called upon to serve in black robes, not white coats. And it must be vigilant to stay in its lane and remember its role.”
The Pennsylvania ivermectin case cites a legal challenge in FFRF’s home state of Wisconsin. The situations were very similar and Wisconsin’s lower court also ordered the hospital to allow the treatment. The appeals court stopped the injunction and, like the court in Pennsylvania, found that the petition did not cite to any legal claim or right that would support the patient’s assertion that he could force the hospital to administer the treatment or admit someone who would. But — hold the presses — Wisconsin’s Supreme Court has decided to weigh in on this case. Will the justices be wearing black robes or white coats?
The attorneys at FFRF have been frustrated by the Supreme Court’s supplanting of constitutional law principles with its heightened emphasis on historical practices and understandings. OK then, let’s hop on the history train and return to the time when courts practiced legal analysis and decisions were limited to the legal questions presented — a time when judges understood their roles and their personal agendas were irrelevant, and their robes were not gray.