Law.com has an interesting article about the Dover ruling that makes me wish the case would be appealed:
The declaratory judgment is unlikely to be appealed by the new school board elected last month to replace those who instituted the divisive policy, the board president said Tuesday.
If it is appealed, "I can't think of any panel on the moderate 3rd Circuit (U.S. Court of Appeals) who would think about overturning this thing," said Gregory P. Magarian, who teaches constitutional law at Villanova University School of Law.
- Log in to post comments
Personally, I don't want this case (or, for that matter, any other case on religion in the public schools) within reach of the Supreme Court. And that's where a Third Circuit decision puts it. Stated differently, the Third Circuit might be a favorable venue, but the Supreme Court is not. Do you really want to give Scalia, Thomas, Roberts, and Alito a shot at this case? Those four grant cert. Kennedy's the swing vote. His preferred Establishment Clause test is coercion. Does he find this policy to be coercive? If Lee is the model, maybe so -- but I wouldn't want to stake the case on it. The single thing that worries me the most about this litigation (not just this case, but creationism in the science (or other) classroom generally) is that it might get to the Supreme Court. Clearly, I'm speculating about how Roberts and Alito might approach such a case but I see bad things happening in front of the Gang of Nine. If I'm the DI or an organization of similar ilk, my goal is to get a case up there as quickly as possible. One that's better than Dover for ID, to be sure -- without all the overt religious purpose, and perhaps where the creationism is watered down even more. I don't think the creationists are likely to get a much more favorable venue in D.C. than the one they'll have once Alito is confirmed, unless they're betting that Justice Stevens can't hold out until the end of Bush's term. If that happens, friends of science will want to run, screaming, from the Supreme Court.
I disagree with Dan. This is the best ID case possible to take to the Supreme Court. The findings of fact by Judge Jones are devastating to the school board, and give an appellate court no good way to reverse the decision. At most, a court could remand the case back to the trial court with instructions to apply a different legal standard. The result will end up the same, however.
There's not going to be a better ID case than this one, so if the issue is going to a higher court, I'd like Kitzmiller to be the vehicle.
(I strongly doubt the school board will appeal, however.)
I disagree with Dan. This is the best ID case possible to take to the Supreme Court. The findings of fact by Judge Jones are devastating to the school board, and give an appellate court no good way to reverse the decision. At most, a court could remand the case back to the trial court with instructions to apply a different legal standard. The result will end up the same, however.
There's not going to be a better ID case than this one, so if the issue is going to a higher court, I'd like Kitzmiller to be the vehicle.
(I strongly doubt the school board will appeal, however.)
One might fairly accuse me of being a "glass half empty" sort (my wife would agree) but I don't share maurile's optomism.
This is the best ID case possible to take to the Supreme Court.
I'll assume, for the sake of argument, that this is true. It misses the point. My point is that this Court is simply much more friendly to religious establishments. That's why McCreary came as such a surprise to me. I suspect that Van Orden more accurately captures the doctinal mindset of the current Court. In any case, we can argue the facts and the law all day to no avail. Yes, the Kitzmiller facts are great. Yes, I think it is a legally correct decision -- at least as the law stands now. Give this Court a crack at it, though, and the law may substantially change.
...and give an appellate court no good way to reverse the decision.
First, you'll need to define "good way." Via an application of existing doctrine? Have a look at Justice Scalia's dissent in Edwards and his dissent from the denial of certiorari in Freiler. Or some of the more recent school funding cases. What if the Court changes course altogether? Perhaps Justice Scalia gets his wish, and Lemon goes away. What then of the endorsement test? And then what's left? Coercion? Have a look at what Justices Scalia and Thomas think is coercive (hint: it would take a lot more than the Dover ID policy). As I said above, it all pretty much rests with Justice Kennedy. I'm encouraged by Lee but I'm not sure I want to bet the farm on it.
...if the issue is going to a higher court...
It will, eventually. That's my fear. I'm inclined to agree that if its going to go, we want it to go on a Kitzmiller-type case. But its a moot point in all likelihood; the School Board doesn't want to appeal and it won't, unless it gets backed into a corner somehow.