A recent article at The Blaze, “Elena Kagan gave bogus science a blind endorsement,” says Supreme Court Justice Elena Kagan’s glowing forward endorsing the Federal Judicial Center’s (FJC) “Reference Manual on Scientific Evidence (RMSE)” was inappropriate and careless, since she has subsequently said she hadn’t read the document. The RMSE is biased, giving undo weight to so-called “scientific consensus” over empirical data. At least one of the chapters was written in large part by plaintiffs’ advocates and supporters in ongoing climate litigation, including a case soon to be argued before the Supreme Court. The Blaze’s recommended fixes, rewriting the document to restore neutrality and restoring an emphasis on data and evidence, as well as its suggestion that judges be cautious in relying on such manuals, are on the mark. In addition, Kagan should recuse herself from the pending climate case, since her claimed uninformed endorsement of one side of the argument in advance gives the appearance of impropriety.
The post, written by the CO2 Coalition’s executive director Angela Wheeler, describes how at a recent Senate hearing Supreme Court Justice Elena Kagan admitted that she never actually read the FJC manual that she wrote a forward for. Her forward, troublingly, describes the manual as objective and neutral, and suggests that it would be a reliable resource “for judges handling cases involving complex scientific evidence,” including climate related litigation.
Wheeler examined previous editions of the manual, finding them scientifically rigorous. Those earlier editions stressed the need to rely on hard science, data, and the scientific method. By contrast, the recent edition that Kagan signed off on had multiple chapters that placed emphasis on “social considerations and consensus among experts while giving less attention to the rigorous testing that separates science from assertion.”
This is an issue previously raised at Climate Realism and discussed here and here. Climate Change Weekly raised concerns about problems with the RMSE here, here, and here. The fourth edition of the FJC manual originally had an entire chapter devoted to climate change, which alarmingly was penned by activists and climate-plaintiff lawyers who were involved in ongoing climate lawsuits filed against energy companies. Those authors and contributors have clear interests in the science being interpreted their way to produce the outcomes they desire. Objective discussion of climate data had no place in the manual.
Attribution studies claiming that individual weather events could be attributed at least in part to specific emissions are unscientific, based on notably flawed and inadequate computer models that have consistently produced inaccurate forecasts. Climate Realism has discussed the myriad problems with attribution “science” here.
Models, of course, aren’t data, and neither is scientific consensus. Wheeler explains that consensus and collaboration matter and can lead to useful evidence, “[b]ut ‘widespread agreement’ cannot substitute for disciplined scrutiny, especially in court.”
In the case of the so-called “climate consensus,” there is a lot less consensus than activists would have us believe. The actual areas of scientific agreement are much more nuanced. Few scientists believe in anything like a “climate catastrophe,” or that individual storms can be blamed on any particular oil and gas company.
The most egregious chapter of the FJC manual was removed after public outcry, but the consensus narrative and subtle pushes towards activist-driven science remain.
Wheeler suggests that it is not too late for FJC to restore trust. To do so, the manual needs to emphasize data and “empirical verification, seek broader input from experts without policy entanglements, and reaffirm the manual’s limited role as a procedural guide rather than an arbiter of scientific truth.” She goes on to say that manuals like this shouldn’t be used as shortcuts or substitutes for research, but as mere “starting points.”
These steps are likely to help FJC look more trustworthy. However, it is still a problem that Justice Kagan was so negligent in praising a manual she now claims to have not read, especially when it addressed how to interpret science matters pending to a case before the Supreme Court.
With a major climate litigation case coming up in October, it is more important than ever that judges are not tricked into accepting overstated and politicized climate attribution studies, among other theoretical model-based presentations, as evidence. The standard for science, whether inside or outside the courtroom, should never be mere speculation, but solid proof.
