Education Icon Education
Intelligent Design Icon Intelligent Design

Judge Jones’ Overreaching Diminishes Impact of Kitzmiller Ruling Upon Future Courts

Casey Luskin

As noted recently, anti-ID legal scholar Jay Wexler believes that Judge Jones went too far when he tried to address whether ID is science in the Kitzmiller ruling. Wexler also complains that “The Judge Did Not Explain Why He Addressed the “Is it Science?” Issue” and argues that Judge Jones gives “no coherent answer” to that question: “If there is no coherent answer, then Judge Jones’ explanation that consideration of the science issue will be useful to other courts likewise falters.” (Jay D. Wexler, “Kitzmiller and the ‘Is It Science?’ Question,” 5 First Amendment Law Review 90, 108, 109 (2006).) The implication is that Judge Jones’ ruling on whether ID is science, which was largely copied from the ACLU, is hardly the final word on these issues. But what reason has Judge Jones given publicly as to why he tried to determine whether ID is science?

Last year Judge Jones twice explained to reporters why he decided whether ID is science. Speaking to Dickinson Magazine he declared:

“I thought it was incumbent upon me to make that call as part of my decision so that we wouldn’t have this litigation replicated someplace else and another school board wouldn’t be exposed to the high fees that this school board exposed itself to.”

Later, speaking to a Pennsylvania legal news journal, Judge Jones stated:

“I had a fervent hope that although some people would likely disagree with the opinion, it could serve as a primer for school boards and other people who were considering this.”

(Judge Jones quoted in Lisa L. Granite, One for the History Books, 28-Aug. Pa. Law. 17, 22 (2006).)

So Judge Jones’ justification for deciding whether ID is science seems clear: he wants his ruling to have an impact upon school boards and parties outside of those involved in the Kitzmiller case. In fact, such a justification matches the exact definition of judicial activism from legal scholars:

“[P]olicymaking is inherent in the work of the courts, but judges have some control over the extent of their involvement in policymaking. In deciding cases, judges often face a choice between alternatives that would enhance their court’s role in policymaking and those that would limit its role. . . . When judges choose to increase their impact as policymakers, they can be said to engage in activism; choices to limit that impact can be labeled judicial restraint.” (Lawrence Baum, American Courts: Process and Policy 316 (4th ed., Houghton Mifflin Co. 1998).)

“A common thread [in judicial activism is] a refusal by the court deciding a particular case to defer to other sorts of authority at the expense of its own independent judgment about the correct legal outcome. [This] sort of behavior, then, tends to increase the significance of the court’s own institutional role vis-à-vis the political branches, the Framers and Ratifiers of the Constitution, or other courts deciding cases in the past or in the future.” (Ernest A. Young, Judicial Activism and Conservative Politics, 73 U. Colo. L. Rev. 1139, 1145 (2002) (internal citations omitted).)

Not wanting to see himself or others get caught up in defending Judge Jones’s vacuous justification for trying to decide whether ID is science, Jay Wexler gives his fellow Darwinists some corrective advice on how they should behave until the next ruling is issued:

It is understandably easy to celebrate when a court reaches a decision that comports with one’s own view of a controversial issue. … … Today’s victory can easily become tomorrow’s defeat. ID opponents would be wise to downplay this controversial portion of the Kitzmiller decision and to protect vigilantly against its future abuse. (Wexler, pg. 110-111.)

Will the Darwinists heed Wexler’s advice? They certainly haven’t in the past. Only time will tell.


Casey Luskin

Associate Director, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



Judge JonesKitzmiller v. Dover Area School District