Over the next week or so, I plan to file several posts analyzing issues relating to Judge Jones’ decision in the Dover case. I start today by revisiting the question of whether Judge Jones is an “activist” judge. Some Darwinists are livid that I’ve applied this label to the Judge. Although I’ve explained my reasons for regarding Jones as an activist in detail to many reporters, my full views haven’t really been reported. So I thought I would explain them here.
I regard Judge Jones as an activist in this case not because I disagree with the outcome of his decision (although I do), but because I disagree with the injudicious and overreaching manner in which he framed his decision.
It is a standard principle in good constitutional jurisprudence that a judge should only go as far as necessary to answer the issue before him. So if a judge can decide a case on narrow grounds, that’s what he ought to do. He shouldn’t try to to use his opinion to answer all possible questions. In the present case, Judge Jones found that the Dover board did not act for a legitimate secular purpose. Instead, he determined that board members acted for clearly religious reasons. Having made this determination, the specific policy adopted by the Dover board was plainly unconstitutional under existing Supreme Court precedents. End of story. There was no need for the Judge to launch an expansive discussion of whether intelligent design is science, whether there is scientific evidence for the concept, whether it is inherently religious, whether Darwinism has flaws, or whether Darwinian evolution is compatible with faith. A judge who actually adheres to the idea of judicial restraint would not have ventured into these other areas, because they were completely unnecessary for the disposition of the case.
Why, then, did Judge Jones venture so far afield from what was necessary to determine the case? From the comments he made to the newsmedia, it seems that he wanted his place in judicial history. He relished the idea that he could be the first judge to give a definitive pronouncement on ID, and he didn’t want to let go of that oppportunity just because good judicial craftsmanship wouldn’t allow it. Judge Jones also had no small estimate of his own importance in the scheme of things. Take the following remarkable passage from his opinion:
the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area.
Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us. [p. 63] (emphasis added)
This passage exhibits the height of presumption, and it’s why in my initial statement after the trial I referred to Judge Jones as having “delusions of grandeur.” First, and contrary to the Judge’s claim, a determination of whether ID is science was plainly NOT essential to the disposition of the case, as pointed out above. Even more troubling, however, is the Judge’s suggestion that he wanted to determine whether ID is science so that no other judge need investigate the facts for himself. Judge Jones is a federal district court judge in one particular district court in Pennsylvania. But he’s speaking as if he is more powerful than a majority on the United States Supreme Court! He is staking out the claim to have the right and duty to decide the question of whether inteligent design is science for all other judges in the entire United States in the future. Lower federal court judges are bound by Supreme Court precedents, but they certainly aren’t bound by the rulings of other lower court judges at the same level. Although other federal judges certainly can refer to Judge Jones’ decision (especially to his legal reasoning), every judge has a duty to reach an impartial and independent determination of the facts and law in the cases before him. Another federal district court judge can’t simply say, “Well, Judge Jones has already decided the matter, so there is no need for me to do anything in this case before me.” Nor can the judge tell the parties to a new case: “I’ve decided not to allow you to present any evidence, because Judge Jones already heard the evidence three years ago.” Judge Jones, no matter what he thinks, is not the entire federal judiciary. Nor does he have the right to speak for the entire federal judiciary.
Another thing: Judges who truly believe in judicial restraint are careful not to try to use judicial power to decide divisive cultural controversies unless it is legally necessary to do so. In this case, as pointed out previously, Judge Jones had narrow grounds on which to base his decision. But he chose not to do so because he wanted to issue a definitive ruling on the disputed questions of whether intelligent design is science and whether it could ever be taught constitutionally in science classes. He wanted to decide the larger public controversy for all future legislators, school boards, and judges. That is judicial activism with a vengeance. It’s the same type of activism that led the federal courts to try to decide the issue of slavery before the Civil War by judicial fiat in the case of Dred Scott. And it’s the same type of judicial activism that led the federal courts to inject themselves into a host of social conflicts (such as abortion) during the past few decades. Far from resolving controversial issues, such activism betrays the democratic process and often leads to further polarization. By giving everyone a stake in the discussion, the democratic process tends to promote incremental solutions and compromise, which cools tensions over the long term. That’s why judges who believe in judicial restraint are careful not to intervene on one side of a controversial debate unless absolutely necessary. It is the hallmark of activism for a judge to try to impose his view on a controversy when such a course of action is not absolutely necessary as a matter of law.
The main responses I’ve heard to the charge that Judge Jones is an activist are these: (1) he insists he’s not an activist; and (2) he’s a lifelong Republican.
Well, of course Judge Jones says he’s not an activist. But methinks he protests too much. In his decision he goes out of his way to announce that his opinion will surely be attacked as an activist one. Far from indicating that he isn’t an activist, I think that this self-serving disclaimer indicated that he plainly knew he was being an activist and wanted to cover himself.
Regarding the fact that he is a Republican appointed by a Republican President: So what? The most liberal activist member of the current United States Supreme Court (John Paul Stevens) was appointed not by Bill Clinton but by Republican President Gerald Ford. President Ronald Reagan, meanwhile, appointed a number of judges (at all levels) who turned out to be just as liberal as any Democratic appointees. Only someone with scant knowledge of judicial appointments over the past few decades would claim that the fact that a Republican president appointed a judge would mean that the judge could not be a judicial liberal or an activist.
Of course, the newsmedia are now fast spinning the tale that Judge Jones is not only a Republican, but he’s supposed to be a conservative and devoutly religious Republican. As I will blog about soon, those claims seem to be about as mythical as the view that Judge Jones isn’t an activist.