Interpretation

Judges have long been called to hear conflicting reports from medical and scientific experts (for instance on issues of causation and injury), and then to determine the parties' legal rights and obligations in light of all the facts presented by the opposing parties.

However, there is always a risk - and particularly with the U.S. Supreme Court - that judges will go "too far" in issuing policy decisions based on their understanding of the medicine or science that has been presented to them in an adversarial manner. At what point does a court improperly start weighing in on the science itself, rather than the law?

This point is made much more forcefully by a Dr. Zweig in his letter to the New York Times:

To the Editor:

Re “A Sharp Turn for the Supreme Court on Abortion”
(letters, April 20):

I am a rheumatologist caring for a patient whose lupus
nephritis is flaring. Her creatinine is rising as her
platelet count falls, and she has failed to improve
with pulse methylprednisolone and intravenous
cyclophosphamide. I am contemplating using rituximab.
I would like to refer this case to the United States
Supreme Court for its guidance.

Richard Zweig, M.D.
Santa Rosa, Calif., April 20, 2007

The phenomenon started in earnest with the Warren Court, which issued decisions like Brown (sociology) and Roe v. Wade, but it continues to the present day, with the Supreme Court opining on environmental issues such as global climate change and medical issues such as viability of a fetus.

Those who cheered on the results in the earlier cases, not worrying about the methodology that was used to achieve those results, may realize with a shock that the same expansive methods can be used for other ends. That's the strongest argument I know for a judiciary to try to keep its focus narrow and its aspirations modest.