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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,1 and (2) the intent to make policy and influence parties outside of the case.2 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.”3 If it is really true that “[s]tates and local school boards are generally afforded considerable discretion in operating public schools,”4 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.”5 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.”6 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.7 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],”8 he admitted (apparently without realizing it) that he was a judicial activist.

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.”9 In doing so, again, he directly admitted the activist nature of his ruling, validating our criticisms of the ruling.

References Cited:
[1.] Lawrence Baum, American Courts: Process and Policy 316 (4th ed., Houghton Mifflin Co. 1998) (providing that “[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”). Ernest A. Young, Judicial Activism and Conservative Politics, 73 U. Colo. L. Rev. 1139, 1145 (2002) (“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- ` a-vis the political branches, the Framers and Ratifiers of the Constitution, or other courts deciding cases in the past or in the future.”) (citation omitted).
[2.] Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 376 (1926) (“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.”); Ernest A. Young, Judicial Activism and Conservative Politics, 73 U. Colo. L. Rev. 1139, 1152-53 (2002) (stating that “[a] court that tends to announce sweeping rules–thereby leaving less leeway for future judicial decisions–is refusing to defer to future courts in much the same way that courts departing from precedent have refused to defer to past tribunals”).
[3.] Smith v. Bd. of Sch. Commrs. of Mobile Co., 827 F.2d 684, 694 (11th Cir. 1987).
[4.] Edwards v. Aguillard, 482 U.S. 578, 583 (1987).
[5.] Lawrence Baum, American Courts: Process and Policy 316 (4th ed., Houghton Mifflin Co. 1998).
[6.] Ibid.
[7.] Lawrence Baum, American Courts: Process and Policy 316 (4th ed., Houghton Mifflin Co. 1998) (providing that “[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”). Ernest A. Young, Judicial Activism and Conservative Politics, 73 U. Colo. L. Rev. 1139, 1145 (2002) (“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- ` a-vis the political branches, the Framers and Ratifiers of the Constitution, or other courts deciding cases in the past or in the future.”) (citation omitted).
[8.] Judge John E. Jones III quoted in Lisa L. Granite, “One for the History Books,” Pa. Law. 17, 22 (July/Aug. 2006).
[9.] “Documentary Explores Key Case on ‘Intelligent Design,'” NewsHour with Jim Lehrer, PBS, November 13, 2007, http://www.pbs.org/newshour/bb/education-july-dec07-evolution_11-13/

 

Casey Luskin

Associate Director and Senior Fellow, 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.

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