Dispatches from the Culture Wars

Two hallmarks of judicial activism are (1) the tendency to resolve questions outside the scope of the judiciary, which are best left to other branches of government, and (2) the intent to make policy and influence parties outside of the case. Judge Jones' own admissions on the Lehrer Newshour demonstrate that both of these criticisms correctly apply to his Kitzmiller ruling.

It appears that Luskin is simply pulling these criteria out of his rectal cavity; they certainly do not exist in any of the scholarly literature that deals with the subject of judicial activism. Keenan Kmiec has written the definitive law review article on the history and meaning of that phrase and these criteria appear nowhere in it. The closest Luskin gets is that the first standard is perhaps a misstated version of Kmiec's third definition of the phrase - "judicial legislation."

But in fact, this ruling absolutely does not fit that definition. First of all, remember that Judge Jones is bound to follow Supreme Court precedent and the primary precedent for the subject of the case was Edwards v Aguillard. And by analyzing and answering the question of whether the alternative to evolution being taught was genuine science or religion masquerading as science, he followed exactly the analysis of the Court in Edwards. Precedent clearly was on the side of answering that question. Nonetheless, Luskin offers the same old argument:

First, Judge Jones admitted that a key question his ruling answered was whether intelligent design was "good science," and he states that "after six weeks of largely expert testimony, I came to the conclusion that it simply was not good science" (emphasis added). This proves his judicial activism because it shows that, in his mind, a key question was not the constitutionality of Dover's policy in particular, but rather a broad sweeping question about whether ID is "good science," something that is totally inappropriate and unnecessary for the federal judiciary to answer in such a case over the constitutionality of a science curriculum.

Predictably, Luskin takes this simple two word phrase entirely out of context. Here's what Judge Jones actually said (not in the ruling, but in an interview in conjunction with the NOVA program):

So when we have these cases, these establishment clause cases, we have to measure the purpose of the policy and the effect of the policy. The first thing we need to do is drill into whether or not the school board had a religious purpose in enacting the policy. The day it was done, after six weeks of testimony, it was quite clear that they did, in fact, have a religious purpose.

The effect went to: What is intelligent design? Is it science? How would the ninth-grade students receive it? And that's why, in particular, we had to tackle the question of whether or not it constituted good science. And again, after six weeks of largely expert testimony, I came to the conclusion that it simply was not good science.

He is discussing the Lemon test, which - again - he is bound to apply in the same manner that the Supreme Court has applied it in similar cases in the past. And when it comes to the effect prong of the Lemon test, he had to do the same thing the Supreme Court did in Edwards, determine whether the alternative being offered by defendants is "good science" - that is, genuine science - or whether it is an inherently religious idea being dressed up in the language of science.

The Court in Edwards determined that "creation science" was an inherently religious idea being presented with a thin veneer of scientific-sounding language in order to disguise its true nature. And remember the single most damning fact revealed during the Dover trial, that the very textbook the school board was using to promote ID used the same definition, literally word for word, for "creation science" that it used for "intelligent design." If A = B and B = C, then A = C as well.

Let's also remember one more key fact that Luskin and his colleagues refuse to acknowledge: both the plaintiffs and the defendants in this case explicitly asked him to rule on the question of whether ID was scientific or religious. It was the centerpiece of the defense case that ID was a genuine scientific theory and not a religious idea. There was no way Judge Jones could reasonably have ignored the defense's entire legal argument in making his ruling.

It is ironic that the Discovery Institute, after two of their own fellows took the stand to make that argument are now arguing that Judge Jones should never have even considered their arguments at all, that he should have ignored the question of the scientific or religious nature of ID completely in making his ruling. Do you suppose they'd be saying that if the ruling had gone in their favor? Not a chance in hell.

Luskin's second argument is that Judge Jones "admitted" to judicial activism by saying that he intended to write a comprehensive opinion so that it would be useful to future courts that would likely have to consider similar questions. Here is what Judge Jones said:

I wrote the opinion in a comprehensive way because I knew that the dispute was possibly going to be replicated someplace else. And what I wanted to do was make the opinion sort of a primer that people could read. You're absolutely correct. It's not precedential outside of the middle district of Pennsylvania, but I thought that if other school boards and other boards of education could read it, they would possibly be more enlightened about what the dispute was all about. And, in fact, in Ohio, in Kansas, in California, and some other places, it was reacted to in a positive way.

Luskin calls this a "striking admission" of judicial activism, but that relies upon his own absurd criterion - shared by no legal scholar that I know of - that if a judge intends to "influence parties outside the case" he is engaging in judicial activism. But this is quite silly. Here again, Judge Jones was following the precedent set by a previous court case, McLean v Arkansas.

In that 1982 case, Judge Overton did the same thing that Jones did in this case, allow both sides to present the full range of expert testimony so that the appeals courts and other district courts that had to deal with the issue would have the fullest possible factual record to review. That factual record is also available for legislators and school boards to read, of course, and that is also a very valuable thing. The notion that leaving such a comprehensive record behind is an undue influence on the other branches of government is simply absurd; who in their right mind would argue that school boards and legislatures having access to the strongest arguments made by both sides in a dispute would be a bad thing?

But the primary reason for writing such a thorough opinion is to avoid giving anyone grounds for appeal. Judge Jones has said elsewhere that he wanted to make sure that both sides could make the strongest possible case so that no one could say that they were unfairly hampered. The unspoken part of that is that this is also how a district court judge avoids having his rulings overturned, by making sure that he has examined the factual record as completely as possible and that he has evaluated that record according to all of the possible standards of review that the appeals court might apply. That's why Judge Jones had separate sections of his ruling applying two different standards of review, the Lemon test and the endorsement test. This is what good district judges do, leave the most comprehensive possible factual and analytical record for the higher courts to review if the case is appealed.

As usual, this is just another ridiculous attack on the Dover ruling. I can guarantee you one thing: if Judge Jones had ruled on their behalf and said that ID is science and not religion, there isn't a chance in hell that the ID crowd would be arguing that he should not have ruled on that issue. This argument is being made for one reason and one reason only: because they lost.