How would the Supreme Court rule on embryonic stem cells?

It seems reasonably likely that in the end, the final say on the embryonic stem cell case one way or another will be decided by the U.S. Supreme Court.

While yesterday brought a victory for science and patients and logic, this was just one battle, not the war. The war that opponents of ES cell research are waging against hope and against science continues. The plaintiffs in the case have many legal options available to them to continue their fight to force feed their extreme vision of morality on everyone else. The final option is to try to bring the case before the Supreme Court.

It is possible that the Supreme Court might refuse to hear the case, but if they did hear it, how would they rule?

An important determinant in how the Supreme Court might rule is whether they focus on legal precedent or politics. It is not always easy to predict which path they will take. The current Supreme Court has a track record of conservatism. You can read short biographies of each Supreme Court justice here. It is a very interesting read.

The current Supreme Court is split 5-4 with a conservative, Republican-appointed majority. It seems also a certainty that the most extreme Justices on the court–Roberts, Alito, Thomas, and Scalia–would vote against federal funding of ES cell research. They would vote this way not because of legal precedent or logic, but rather because of their ideology.  It also seems very likely that Justices Ginsburg, Breyer, Sotomayer, and Kagan would vote in favor of ES cell research.

This leaves a 4-4 tie.

As has happened so often in the past, this would leave Justice Kennedy (originally from here in Sacramento) to break the tie one way or another, leading to a 5-4 ruling in favor or against ES cell research.

How would Justice Kennedy (you can read more about him here) vote?

Kennedy, a Catholic, has surprisingly at times voted in favor (even if just implicitly) of upholding Roe vs. Wade. However, Kennedy may well view embryonic stem cell research as morally unacceptable. The question is whether, if that is the case, he would let that influence his vote. Although Kennedy has at times infuriated extreme right wing conservatives with his swing votes, most of the time he has voted along with Roberts group of 4 conservative judges.

Opponents of ES cell research call Kennedy “weak” on “life” issues such as abortion and ES cell research (which they always tie together even though they have nothing to do with each other), but they are just as worried that Kennedy might vote against the plaintiffs suing the government as are supporters of ES cell research worried that Kennedy might vote in support of the plaintiffs.

The bottom line is that only Justice Kennedy can be at all sure how he might vote.

I can find absolutely no public statement by him on the issue.

However, my prediction is that Kennedy would vote against the plaintiffs and in support of ES cell research.  I am by no means sure, but I think that is the most likely outcome.

Perhaps even more likely is that Supreme Court might decide not to hear the case at all.

In the mean time, let’s see what activist Judge Lamberth does, now that the D.C. Appeals Court (a higher court than his own) has said that his injunction ruling was full of baloney. Don’t be surprised if Lamberth rules against ES cell research anyway, but hopefully he might respect the higher court. I wouldn’t count on it though.

3 Comments


  1. Paul,

    Impressed with the rate you’re throwing out these blogs, and following them with great interest.
    You’ll no doubt be pleased to know that the recent outcome of the Appeals Court has filtered over to us in the UK – on the BBC website: http://www.bbc.co.uk/news/world-us-canada-13246775

    I note that this is very positively written story – missing the caveats you mention about the Supreme Court. Lets hope that doesn’t happen.

    However, I am wondering if you knew of this: http://www.bbc.co.uk/news/health-13214036

    I find this worrying. It seems the information is STILL not getting through about science addressing the hESC concern of the ridiculous “killing babies” rhetoric. Surely with recent advances such as “Scientists Create Stable, Self-Renewing Neural Stem Cells” http://www.sciencedaily.com/releases/2011/04/110425153554.htm – this so called “moral” problem is rapidly becoming a moot point. More than likely its possible it’s political not moral.

    Would be interested to hear your take on patents for stemcell research….

    Kind Regards,
    Dave.


  2. Thanks for the comments, Dave.
    I was thinking of doing a post on the patent situation.
    The current case is up in the air still and could go to the Supreme Court.


  3. I think it’s worth noting that the Appeals Court also held a conservative majority, and even so they judged against the plaintiffs. I think it’s a good sign: even among conservative circles the necessity of embryonic stem cell research is understood.

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