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Ten Myths About Dover: #6, “Judge Jones, No Activist, Stayed Strictly Within His Authority”

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Editor’s note: The Kitzmiller v. Dover decision has been the subject of much media attention and many misinterpretations from pro-Darwin lobby groups. With the tenth anniversary of Kitzmiller approaching on December 20, Evolution News offers a series of ten articles debunking common myths about the case. Look here for Myths 123456789, and 10.

Judge John E. Jones III’s holding on whether intelligent design is science is probably the most celebrated part of the Kitzmiller v. Dover decision.

PBS produced a two-hour television show, Judgment Day: Intelligent Design on Trial, documenting the Kitzmiller v. Dover proceedings and praising Jones’s ruling. Time Magazine called him a “Thinker of the Year” in 2006. And Scientific American writer John Rennie called the Kitzmiller v. Dover ruling “an encyclopedic refutation of ID.” But the section on whether ID is science does not display sound legal reasoning. On the contrary, Judge Jones overstepped his authority.

To be sure, he claimed that his decision was not that of a judicial activist:

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.”

But what constitutes going outside of judicial authority? Judicial activism is defined by Black’s Law Dictionary, seventh edition, as “A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”

Jones’s ruling meets this definition of judicial activism. First, there was no need to determine whether or not ID is science. As Casey Luskin notes, the main judicial test relevant to this case was the Lemon test:

When Judge Jones mentions “precedents” and “tests” that he’s bound to follow, he’s primarily talking about the Lemon test. That is the main judicial test used by courts in determining whether a government policy satisfies the Establishment Clause. It’s a three-part test, and each part (or “prong”) must be passed successfully if a government policy is to be constitutional. Here it is, as the U.S. Supreme Court originally formulated it:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an excessive government entanglement with religion.

(Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971) (internal citations and quotations omitted)

Here are the three prongs, slightly paraphrased:

  • Prong 1 (the “purpose” prong): The policy must have a secular legislative purpose.
  • Prong 2 (the “effect” prong): The principal or primary effect of a policy must neither advance nor inhibit religion.
  • Prong 3 (the “entanglement” prong): The policy must not foster excessive government entanglement with religion.

According to court precedent, Jones only had to determine if the Dover school board’s policy met the first prong of the Lemon test — that is, did the policy have a secular purpose?As the Edwards v. Aguillard ruling stated:

If the law was enacted for the purpose of endorsing religion, no consideration of the second or third criteria [of Lemon] is necessary.

If so, an Establishment clause violation had occurred, the policy was unconstitutional, and no further legal analysis would be necessary or appropriate. In his ruling, Judge Jones found a predominantly religious purpose for the policy — and went on to rule on numerous other issues. Yet as the Supreme Court’s holding in Village of Euclid v. Ambler Realty Co. shows, he should have stopped his analysis there:

In the realm of constitutional law especially, this Court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted.

If Judge Jones had followed precedent, he would not have included an analysis of whether ID is science.

Second, a ruling on the nature of science is outside the realm of judicial authority. As <href=”#sthash.IeBFT3CP.dpuf”>anti-ID scholar Jay Wexler has written:

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.

Federal judges are to decide constitutional questions. Deciding what is and is not science is a matter for philosophers of science.

Indeed, we can see Judge Jones playing the role of philosopher of science in his ruling. He wrote: “Since ID is not science, the conclusion is inescapable that the only real effect of the ID Policy is the advancement of religion.” This reasoning sets up a false dichotomy between science and religion, where Jones assumes that if something is not science then it must be religion. But of course there are many academic fields that are not science, and also not religion. History and philosophy are good examples. Of course we think that ID is indeed science, but this is poor philosophy of science, and a good example of why we do not want federal judges trying to delineate science.

Along these same lines, Judge Jones found that ID is not science because it supposedly “failed to gain acceptance in the scientific community.” Not only is this false — there are highly credible scientists who support ID — it is also irrelevant to whether ID is science. The history of science is littered with scientific theories that have been rejected by most scientists. Philosophers of science would generally agree that whether something is “science” is not determined by its level of acceptance in the scientific community. In fact, this very point was part of the central holding in the 1993 Supreme Court case Daubert v. Merrell Dow Pharmaceuticals where the Court explicitly rejected the “general acceptance” test as a requirement for science:

Nothing in the text of this Rule establishes “general acceptance” as an absolute prerequisite to admissibility.

(Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 , 588 (1993).)

Judge Jones did not follow this precedent, and instead substituted his own poor philosophy of science for what philosophers (and the U.S. Supreme Court) have said. But the big danger of his endorsement of the “general acceptance” test is that it threatens to hinder the advancement of science. This point was made eloquently in an amicus brief filed in the Daubert case:

Judgments based on scientific evidence, whether made in a laboratory or a courtroom, are undermined by a categorical refusal even to consider research or views that contradict someone’s notion of the prevailing “consensus” of scientific opinion. . . . Automatically rejecting dissenting views that challenge the conventional wisdom is a dangerous fallacy, for almost every generally accepted view was once deemed eccentric or heretical. Perpetuating the reign of a supposed scientific orthodoxy in this way, whether in a research laboratory or in a courtroom, is profoundly inimical to the search for truth. … The quality of a scientific approach or opinion depends on the strength of its factual premises and on the depth and consistency of its reasoning, not on its appearance in a particular journal or on its popularity among other scientists.

(Brief Amici Curiae of Physicians, Scientists, and Historians of Science in Support of Petitioners, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).)

Judge Jones rejected this sound logic. If his view of science ruled, then any scientific revolution would be blocked. New scientific theories, almost by definition, start with a low level of acceptance in the scientific community.

Third, it is not the role of judges to determine whether a public school curriculum is adequate or accurate. After determining that intelligent design is not science, Jones went on: “Accepting for the sake of argument its proponents’, as well as Defendants’ argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum.” It’s true that one reason Judge Jones arrived at this conclusion is that he felt ID is religion. If that were true, it would be legitimate constitutional grounds for him to decide that ID does not belong in a curriculum. But he offers other reasons, and some of those stem from his finding that ID has not been established as good science. Judge Jones simply had no business deciding whether ID is solid enough science to be taught in a public school.

It is up to state boards of education and school administrations, not judges, to determine what belongs in the science classroom. This point is well explained in another ruling, Smith v. Board of School Commissioners of Mobile County:

[T]he wisdom of an educational policy or its efficiency from an educational point of view is not germane to the constitutional issue of whether that policy violates the establishment clause.

(Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684, 694 (11th Cir. 1987).)

Fourth, Jones’s reasoning shows that he wanted his ruling to have broad precedential value:

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.

Judge Jones’s ruling is binding precedent only for the Middle District of Pennsylvania. Yet as he noted in an interview in The Pennsylvania Lawyer, “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.” For a federal trial court judge to try answer legal questions for other parties in the future, outside of the case at hand, is a crystal clear instance of judicial activism.

Finally, Judge Jones made determinations regarding the compatibility or incompatibility of evolutionary theory with religion:

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs’ scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.

This clearly exceeds governmental authority. As the Supreme Court held in West Virginia State Board of Education v. Barnette, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Writing in the Montana Law Review, David DeWolf, John West, and Casey Luskin frame the question well:

Judge Jones suspected that his broad holdings would lead to accusations that he is “an activist judge.” He therefore inserted a pre-emptive defense to this charge by noting that “[t]hose who disagree with our holding will likely mark it as the product of an activist judge” but “they will have erred as this is manifestly not an activist Court.” In a post-decision interview, Judge Jones reiterated this point, accusing his critics of calling him an activist simply because “an activist judge is a judge whose decision you disagree with.”

Proclaiming that one is not an activist judge does not make it so. And claiming that those who charge “judicial activism” simply disagree with the ruling and have nothing better to say does not mean that reasonable arguments cannot be raised that Judge Jones’s ruling intruded into inappropriate territory or had factually incorrect findings. Judicial activism is not just a meaningless epithet; it is a term applied to judges who succumb to the temptation to “increase their impact as policymakers.”

Judicial activism has the tendency to displace other branches of government, or other institutions in society, that are arguably better equipped to resolve a dispute. When Judge Jones described the breadth of his opinion as being the result of a “fervent hope” that his opinion “could serve as a primer for school boards and other people who were considering this [issue],” he admitted (apparently without realizing it) that he was a judicial activist.

Not only did Jones eschew judicial economy, he attempted to act as a policymaker and wandered into the relationship between science and religion. If this is not a textbook case of “judicial activism,” the opposite of a judge staying within the boundaries of his proper authority, then the phrase has no meaning at all.

Image: � Jerry Sliwowski / Dollar Photo Club.

Sarah Chaffee

Now a teacher, Sarah Chaffee served as Program Officer in Education and Public Policy at Discovery Institute’s Center for Science and Culture. She earned her B.A. in Government. During college she interned at Representative Jaime Herrera Beutler’s office and for Prison Fellowship Ministries. Before coming to Discovery, she worked for a private land trust with holdings in the Southwest.



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