Supreme Court Justice Elena Kagan’s admission at a July Senate hearing raises troubling questions about accountability in judicial education. Kagan confirmed she had written the foreword for the Federal Judicial Center’s Reference Manual on Scientific Evidence without reading a chapter on climate change that was eventually removed because of objectionable biases – and has yet to read it.

Her foreword vouches for the manual as an objective resource for judges handling cases involving complex science, ranging from epidemiology to emerging technologies. Yet her high-profile endorsement of material that later required major corrections jeopardizes the judiciary’s credibility.

Withdrawn

The fourth edition of the influential reference manual, used by thousands of federal judges, faced immediate pushback. The climate chapter was withdrawn in February following objections from state attorneys general citing imbalances and potential conflicts.

Sadly, remaining in the manual is a chapter that drifts into pseudoscience in describing the nature of science. Regrettably, also still intact is Kagan’s foreword attesting to the volume as a reliable aid grounded in impartiality.

The retained material with its skewed explanation of the scientific method is a noticeable pivot from earlier editions of the manual. They featured physicist David Goodstein’s concise discussion of empirical testing, falsifiable predictions, the primacy of reliable data, and other tenets of scientific inquiry.

In contrast to the Goodstein presentation, the new science chapter disregards traditional scientific rigor as it embraces social considerations and stresses achieving a consensus within expert groups. While scientific collaboration matters, elevating “widespread agreement” as a top indicator of reliability risks sidelining disciplined scrutiny that defines reliable evidence under the Supreme Court’s Daubert standard.

Daubert requires judges to assess whether expert testimony rests on testable methods, peer review, error rates, and general acceptance – always tethered to observable reality. Nobel laureate Richard Feynman captured the spirit plainly: “It doesn’t matter how beautiful your theory is, it doesn’t matter how smart you are. If it doesn’t agree with experiment, it’s wrong.”

Lysenko

History is littered with cases where dominant but erroneous views yielded to better evidence — or, in darker times, where political power enforced consensus. In Stalin’s Soviet Union, biologist Trofim Lysenko’s rejection of genetic science in favor of politically favored ideas about biological inheritance became official doctrine. Dissenting scientists were marginalized or worse, and Soviet agriculture suffered devastating setbacks that led to deaths by starvation. Recovery only began when evidence and empirical reality could no longer be suppressed. Such episodes underscore why judicial guides must prioritize falsifiability over sociological notions of consensus.

Concerns about the revised science chapter extend to authorship. Lead contributors include individuals with ties to climate policy negotiations about issues such as international financial mechanisms. In an era of sprawling climate litigation – with over a thousand active cases active and potential liabilities in the trillions – such backgrounds can create at least the appearance of imbalance, even if unintended.

Prominent scientists, including physicists with extensive publication records, have urged Chief Justice John Roberts and the FJC to revisit the science chapter. They argue that the manual should prioritize clear explanations of hypothesis testing over sociological descriptions, preserving its value as a nonpartisan tool.

With courts increasingly asked to adjudicate scientific disputes that carry the weight of policy affecting the lives of millions – even billions – reference materials must be able to withstand strict tests of objectivity. Kagan’s experience serves as a reminder that diligence is a matter of personal responsibility, no matter the rank of the individual, if the integrity of the judicial process is to be maintained.

Cross-check

The Federal Judicial Center has an opportunity to strengthen the manual by restoring emphasis on empirical verification, ensuring diverse input from experts free of policy entanglements, and reaffirming the manual’s role as a procedural guide. Judges, in turn, should cross-check such resources against primary studies and adversarial presentations.

Endorsing a manual without examining its most contentious sections compromises due diligence. Fortunately, it is not too late to correct course. The Federal Judicial Center should act now to restore the manual’s credibility by strengthening its commitment to empirical evidence, falsifiability, and viewpoint diversity. The integrity of judicial decision-making demands nothing less.