Justiciability of Scientific Questions III: inherent and prudential nonjusticiability
I have not yet provided definitions of the terms "justiciable" and "justiciability." IMO a fairly good definition of justiciable is --
Of a claim or controversy, the condition of being suitable for adjudication by a particular court.
Some definitions use the term "capable" instead of "suitable," e.g. "capable of being decided by a court ." and "referring to a matter which is capable of being decided by a court". However, I prefer the term "suitable" because anything is "capable" of being decided -- the questions of how many angels can dance on the head of a pin and whether bears shit in the woods are "capable" of being decided by a court. IMO the best definition would be, "constitutionally, legally, and practically suitable for adjudication by a particular court" (the word "particular" is important because different courts and court systems have different rules).
By way of review, I gave the following reasons why a scientific claim may be considered to be nonjusticiable:
. . . the claim may be unanswerable, imponderable, unfathomable, unprovable, unfalsifiable, contentious, a matter of opinion, or beyond the expertise of judges, or the science may be subject to change. Judicial decisions on the merits of scientific claims can have profound and far-ranging consequences, e.g., such decisions can affect the reputations and careers of scientists, affect funding for research, and affect the direction of scientific research.
Unfortunately, articles on justiciability generally do not give any reasons why some scientific questions should be considered to be non-justiciable and generally do not provide categories into which scientific questions might fall. For example, one article on justiciability has the following topics:
Article III case or controversy; advisory opinions; mootness and ripeness; standing; and judicial restraint (though this topic might be applicable, its discussion in this article is not).
And another article says,
To be heard by the federal courts cases must meet certain standards (they must be"justiciable)" (sic):
They must: Not seek an advisory opinion; Be brought by people who have standing; Not be moot; Be ripe for decision; Not be barred by the 11th Amendment; Not involve a political question.
This article about justiciability discusses the topics of standing, ripeness, mootness, advisory opinions, political questions, and Article III (which would include the "cases and controversies" issue).
Practically all of the reasons for nonjusticiability that are given by the above references are arbitrary and artificial reasons -- i.e., reasons that are based on the Constitution, laws, court rules, case law, custom, or whatever -- as opposed to reasons that are inherent in particular questions that are before the courts. In contrast, the preceding reasons for nonjusticiability of scientific questions are likely to be inherent in the questions themselves. So maybe there should be a new category of nonjusticiability -- to be called "inherent," "intrinsic," or "absolute" nonjusticiability -- meaning that the courts would have no basis for making a decision -- or that a decision would be improper -- even in the absence of artificial restraints on making a decision. It some ways this new category of nonjusticiability would be like the idea of insufficient evidence.
Also, I would like to introduce another nonjusticiability concept -- "prudential" nonjusticiability. In some court cases, it may be possible to make a rational decision about some question but it may be unwise to issue that decision because of potential bad consequences -- i.e., potential harm or the potential that the harm would outweigh the benefits. Of course, it is normal for court decisions to "harm" the losing litigants and others, so can "harm" be an argument against issuing decisions? Quite often the prospect of harm is used as an argument in court -- for example, it is commonly argued that a strict literal interpretation of the 2nd Amendment's right to keep and bear arms would result in harm to society. And a lot depends on the nature of the decision's harmful effects and the nature of whatever wrongs are redressed by the decision -- whether those things are intangible, financial, physical, reversible, irreversible, etc.. Jay Wexler's following comments about the Kitzmiller v. Dover decision involve prudential considerations:
The opinion's main problem lies in the conclusion that most evolution supporters were particularly pleased with -- namely, the judge's finding that ID is not science. The problem is not that ID is science. Maybe it is science, and maybe it isn't. The question is whether judges should be deciding in their written opinions that ID is or is not science -- a question that sounds in philosophy of science -- as a matter of law. On this question, the answer is "no," particularly when the overall question posed to the Court is whether teaching ID endorses religion, not whether it is or is not science. The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous to both science and freedom of religion. The judge's determination that ID endorses religion should have been sufficient to rule the policy unconstitutional.
. . . if one judge can practice philosophy of science, what is to stop others from doing the same? Perhaps the next judge to hear an ID case will decide that science simply means "the process of searching for the best logical explanations for observed data." In that case, schools might be allowed to teach … ID… Is this really a can of worms that ID opponents want to open?
However, even just a ruling that "teaching ID endorses religion" can harm the careers and reputations of scientists and adversely affect scientific research.
In summary, I have proposed the following two new kinds of nonjusticiability:
(1) Inherent (or intrinsic or absolute) nonjusticiability. Some reasons in the area of scientific questions are: the claim may be unanswerable, imponderable, unfathomable, unprovable, unfalsifiable, contentious, a matter of opinion, or beyond the expertise of judges, or the science may be subject to change.
(2) Prudential nonjusticiability. Because a rational decision is possible, this is not true nonjusticiability, but it is like nonjusticiability in the sense that it is a reason to show judicial restraint by refraining from issuing a decision. Some reasons in the area of scientific questions are: decisions can affect the reputations and careers of scientists, affect funding for scientific research, and affect the direction of scientific research.