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Judge Jones Admits the Activist Nature of Kitzmiller Ruling on Lehrer Newshour

Federal judges don't ordinarily travel around the country speaking about their judicial rulings, but Judge Jones is no ordinary federal judge. While promoting the PBS-NOVA special on intelligent design, he recently appeared the Lehrer Newshour, where he made striking admissions that demonstrate the activist nature of the Kitzmiller ruling.

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.

Judge Jones' Expansive Intrusion into Legislative Questions
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. As I co-wrote with David DeWolf and John West in Montana Law Review, Judge Jones confused the proper question he was supposed to answer:

Unfortunately, Judge Jones appears to have confused the question of whether he finds ID personally convincing with the question of whether ID is a scientific theory. Because he was not convinced by the scientific arguments made by ID proponents, Judge Jones ruled that ID must not be science in principle. But it was not Judge Jones's place to determine the ultimate truth or falsity of ID's scientific arguments...
We are not the only people who feel this way. Anti-ID legal scholar Jay Wexler similarly writes, "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 both to science and to freedom of religion." The Kitzmiller ruling thus intrudes upon the separation of powers and the responsibility of the legislative branch, as our Montana Law Review article states:
Even if Judge Jones believed that ID is false, he should have remembered that "the 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." If it is really true that "[s]tates and local school boards are generally afforded considerable discretion in operating public schools," then what matters is that the school board sincerely believed that ID has scientific merit, not whether a federal judge is convinced of its ultimate scientific truth.
Judge Jones' Attempts at Judicial Policy-Making
Second, Judge Jones makes a striking admission that he intended his opinion to make policy by influencing legislators far outside of the parties in the case:
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.
In his book American Courts: Process and Policy, Lawrence Baum writes that "[w]hen 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." Judge Jones may have claimed in the Kitzmiller ruling that his "is manifestly not an activist Court," but according to his own admission, he wrote his opinion "in a comprehensive way" so that it would be "a primer" for people "someplace else." We wrote in Montana Law Review:
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.
Judge Jones even says, "I thought that if other school boards and other boards of education could read it, they would possibly be more enlightened." In doing so, he directly admitted the activist nature of his ruling, validating our criticisms of the ruling.