As Gawker.com reports, Justice Antonin Scalia agrees with his fellow Supreme Court justices that naturally occurring genes can’t be patented. Where he appears to differ: The existence of genes, the basic science of genetics, molecular biology, and evolution. He just dissented from all of the above.

Last week, the court found in favor of the Association for Molecular Pathology in a case about the legality of patenting genes, ruling 9-0 that while synthetic genes may be patented, those extracted from the human body may not.

Clarence Thomas wrote the opinion, which was joined by Justices Roberts, Kennedy, Ginsberg, Breyer, Alito, Sotomayor, and Kagan. But not Scalia. While he voted with the majority, he wrote his own concurrence to make abundantly clear that he did not agree with the parts of Thomas’ opinion that recited the basic, sound, and undeniable fundamentals of molecular biology.

While he “joins the judgment of the court,” Scalia wrote, he won’t sign on to “Part I–A and some portions of the rest of the opinion going into fine details of molecular biology.” Why? Because he can’t “affirm those details on [his] own knowledge or even [his] own belief.”

So what is Part I-A? Sounds like some pretty out-there stuff. It begins: “Genes form the basis for hereditary traits in living organisms.” It holds that genes are “encoded as DNA, which takes the shape of the familiar ‘double helix,'” and describes the chemical structures of DNA. It tells, in basic terms, what DNA is and how it works, ending with: “the study of genetics can lead to valuable medical breakthroughs.” It literally makes no other claims—it is a dry recitation of genetic science. High-school-level stuff.

Scalia can’t fully join his fellow justices because he doesn’t believe in genes.

Here’s the text of Scalia’s concurrence:

I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.

Here’s the text of part I-A:

Genes form the basis for hereditary traits in living organisms. See generally Association for Molecular Pathology v. United States Patent and Trademark Office, 702 F. Supp. 2d 181, 192–211 (SDNY 2010). The human genome consists of approximately 22,000 genes packed into 23 pairs of chromosomes. Each gene is encoded as DNA, which takes the shape of the familiar “double helix” that Doctors James Watson and Francis Crick first described in 1953. Each “cross-bar” in the DNA helix consists of two chemically joined nucleotides. The possible nucleotides are adenine (A), thymine (T), cytosine (C), and guanine (G), each of which binds naturally with another nucleotide: A pairs with T; C pairs with G. The nucleotide cross-bars are chemically connected to a sugar-phosphate backbone that forms the outside framework of the DNA helix. Sequences of DNA nucleotides contain the information necessary to create strings of amino acids, which in turn are used in the body to build proteins. Only some DNA nucleotides, however, code for amino acids; these nucleotides are known as “exons.” Nucleotides that do not code for amino acids, in contrast, are known as “introns.”

Creation of proteins from DNA involves two principal steps, known as transcription and translation. In transcription, the bonds between DNA nucleotides separate, and the DNA helix unwinds into two single strands. A single strand is used as a template to create a complementary ribonucleic acid (RNA) strand. The nucleotides on the DNA strand pair naturally with their counterparts, with the exception that RNA uses the nucleotide base uracil (U) instead of thymine (T). Transcription results in a single strand RNA molecule, known as pre-RNA, whose nucleotides form an inverse image of the DNA strand from which it was created. Pre-RNA still contains nucleotides corresponding to both the exons and introns in the DNA molecule. The pre-RNA is then naturally “spliced” by the physical removal of the introns. The resulting product is a strand of RNA that contains nucleotides corresponding only to the exons from the original DNA strand. The exons-only strand is known as messenger RNA (mRNA), which creates amino acids through translation. In translation, cellular structures known as ribosomes read each set of three nucleotides, known as codons, in the mRNA. Each codon either tells the ribosomes which of the 20 possible amino acids to synthesize or provides a stop signal that ends amino acid production.

DNA’s informational sequences and the processes that create mRNA, amino acids, and proteins occur naturally within cells. Scientists can, however, extract DNA from cells using well known laboratory methods. These methods allow scientists to isolate specific segments of DNA— for instance, a particular gene or part of a gene—which can then be further studied, manipulated, or used. It is also possible to create DNA synthetically through processes similarly well known in the field of genetics. One such method begins with an mRNA molecule and uses the natural bonding properties of nucleotides to create a new, synthetic DNA molecule. The result is the inverse of the mRNA’s inverse image of the original DNA, with one important distinction: Because the natural creation of mRNA involves splicing that removes introns, the synthetic DNA created from mRNA also contains only the exon sequences. This synthetic DNA created in the laboratory from mRNA is known as complementary DNA (cDNA).

Changes in the genetic sequence are called mutations. Mutations can be as small as the alteration of a single nucleotide—a change affecting only one letter in the genetic code. Such small-scale changes can produce an entirely different amino acid or can end protein production altogether. Large changes, involving the deletion, rearrangement, or duplication of hundreds or even millions of nucleotides, can result in the elimination, misplacement, or duplication of entire genes. Some mutations are harmless, but others can cause disease or increase the risk of disease. As a result, the study of genetics can lead to valuable medical breakthroughs.

In it’s January 8, 2013 story, CNN reports that the state of North Carolina filed an appeal Friday to a judge’s ruling that license plates with the words “Choose Life” on them are unconstitutional because the state does not offer an alternative for supporters of abortion rights.

The state filed its appeal without comment through the U.S. Court of Appeals for the Fourth Circuit, according to court documents.

This is another of a long line of cases dealing with slogans on license plates.  Law students read about “Live Free or Die” —  the State of New Hampshire’s slogan which was adopted by its legislature in 1971 to replace “scenic.”  The U.S. Supreme Court ruled in 1977 that the State of New Hampshire could not prosecute motorists who chose to hide part or all of the motto.  The Court decided in Wooley v. Maynard (430 U.S. 705) that the Jehovah’s Witness plaintiff could not be forced to choose between his religion’s “Kingdom” and his State.  The Court concluded that the state’s interests paled in comparison to individuals’ free-expression rights.

A related and interesting issue concerns vanity plates chosen by individual vehicle owners.  It is sort of the reverse: does a state have the right to disallow chosen vanity plates?  The courts have said “yes.”  While common decency suggests that nobody should be able to have a plate that promotes killing or war, for example, but how and when should a state decide to veto a person’s First Amendment right of free speech?  David L. Hudson, Jr.’s article on License Plates (First Amendment Center) is a good read.

The North Carolina appeal comes shortly after U.S. District Court Judge James Fox ruled: “The State’s offering a Choose Life license plate in the absence of a pro-choice alternative constitutes viewpoint discrimination in violation of the First Amendment.”

The American Civil Liberties Union had filed a lawsuit in 2011 to stop the specialty plates and called Friday’s appeal “unfortunate.”  “…The state has chosen to prolong what is really a very clear-cut First Amendment issue,” said Chris Brook, legal director of the ACLU’s North Carolina Legal Foundation. “The Fourth Circuit Court of Appeals has consistently ruled that any time the government creates an avenue for private speech, it cannot restrict that avenue to only one side of a contentious debate.“

The bill for the license plates passed in 2011. The legislation also mandated that money raised from the sale of the specialty plates would go to a nonprofit group that supports crisis pregnancy centers, CNN affiliate WRAL reported.

During the fight to get the bill passed, North Carolina lawmakers voted down amendments that would have created alternatives for abortion-rights supporters such as “Trust Women. Respect Choice,” the affiliate reported.

The “Choose Life” plates are available in 29 states, according to Choose Life Inc., a nonprofit that helps states that want to sell these specialty plates.

Under Roe v. Wade, 410 U.S. 113, the law of the land since 1971 has been that abortion is legal.  I can think of many other issues that could use the added publicity of a license slogan and I think the legislature in North Carolina should have turn and run from such a hotly debated issue.  Given the history of the U.S. Supreme Court rulings, North Carolina is going to lose this suit.

Chicago attorney Evan Brown wrote in his blog about an interesting 4th Amendment case, Schlossberg v. Solesbee, 2012 WL 141741 (D.Or. January 18, 2012).

Plaintiff was being questioned by defendant police officer when defendant noticed plaintiff was using a digital camera to capture the exchange. The cop got enraged and took the camera away. He arrested plaintiff and looked through the files on the camera without getting a warrant.

So plaintiff filed a civil rights lawsuit. Before trial, the court asked the parties to file briefs on whether plaintiff’s Fourth Amendment rights were violated. The court found that the warrantless search of the camera was an unlawful search incident to an arrest, thereby violating the Fourth Amendment.

In its decision, the court noted that cases which have allowed warrantless searches of electronic devices incident to arrest established a dangerous new rule, namely, that any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer. The court recounted the case of some cops who, in a warrantless search of a drunk driving suspect’s cell phone, found and shared some naked photos of the suspect’s girlfriend. See Newhard v. Borders, 649 F.Supp.2d 440 (W.D. Va 2009).

The court disagreed with the rationale of previous cases that held electronic devices such as phones and cameras were like “closed containers” and were thereby subject to warrantless searches. It found that warrantless searches of electronic devices are not reasonable when they are incident to a valid arrest absent a showing that the search is necessary to:

• prevent the destruction of evidence
• ensure officer safety, or
• address other exigent circumstances

The court further found that all electronic devices should be subject to this broad protection — police should not have to distinguish between laptops, traditional cell phones, smart phones and cameras before deciding whether to proceed with a search of the device incident to arrest.

In sum, the court found that because plaintiff had a high expectation of privacy in his camera’s contents, defendant should not have reviewed its contents in a search incident to the arrest. He should have gotten a warrant instead.

So what do you think? Did the court get this one right?

I read in CNN that today, Texas executed another person.  That (unfortunately) is not really “news” – Texas executed 13 men in 2011 (as far as I can tell, no women were executed).  Today’s execution was particularly troubling to me.  Marvin Wilson was convicted for the shooting death of a 21-year-old man in 1992.

The troubling part is that Wilson’s IQ had been measured at 61, according to the American Civil Liberties Union of Texas, which opposed the execution.

In an online posting, the ACLU said Wilson, 54, had been declared “intellectually disabled” by a court-appointed neuropsychologist.

“Despite all the signs of Mr. Wilson’s intellectual disabilities and the diagnosis of the court-appointed neuropsychologist, the District Court of Jefferson County (Texas) concluded that Mr. Wilson is not mentally retarded,” the ACLU posting said, with “not” italicized for emphasis.

Before he was put to death, Wilson made a final statement in which he said, “Ya’ll do understand that I came here a sinner and leaving a saint. Take me home, Jesus, take me home, Lord.”

Wilson was convicted in the shooting death of Jerry Robert Williams in Beaumont, Texas. According to the Texas Department of Criminal Justice, Williams was abducted and shot after a “physical confrontation” between the two men.

Some countries have histories of gruesome punishment of children and mentally ill.  The history in the USA has been to require those punished to actually know and understand their actions.

If you look at the bell-shaped curve of IQ such as one shown here, you will find that a 61 is just barely on the left edge of the bell.  In other words, barely even registering on the graphic of the range of intelligence in this country.  I believe it is shameful, as bad as a crime may be, to execute a man who is on par, mentally, with a small child.

What do you think?