David Opderbeck, Professor of law at Seton Hall University School of Law, has in the past offered some insightful criticisms of the Dover ruling, including the facts that Judge Jones:

• “misrepresents key ID arguments by stating that they are only negative arguments against evolution rather than positive evidence for design”
• “went far beyond the case / controversy at hand by giving his primer on whether ID is ‘science'”
• used “criteria for determining what constitutes ‘science'” that seemed “muddled and dangerous”
• “misrepresents the merits of key ID arguments, in particular irreducible complexity”

Now over at the pro-Darwin BioLogos blog, Professor Opderbeck writes “In Defense of Dover.” Well, only sort of. Professor Opderbeck qualifies his post’s pro-Judge Jones title, stating: “I still think Judge Jones’ opinion in Kitzmiller missed the mark in some important ways, even though I think (and have always thought) the end result was correct.” Truthfully, I don’t disagree with a word of Professor Opderbeck’s praise of the Dover ruling when he writes:

It seems clear from the trial record that the Dover, Pennsylvania school board officials who promoted the ID curriculum did so in an effort to support their belief in a particular form of direct creationism. Although ID is ostensibly a religiously neutral theory, the local pro-ID school board officials in Dover appeared to have specifically religious motives for introducing it into the curriculum. This was enough reason, I think for Judge Jones to have rejected their efforts.

Whether the BioLogos folks realize it or not, leading pro-ID legal scholars would say (and have said) essentially the same thing about the Dover ruling: the Dover School Board members showed clear evidence of religious motives, and thus deserved to have their ID-policy struck down under the “purpose prong” of the Lemon test given the specific facts of the Dover case.

That doesn’t mean that ID should have been declared unscientific and unconstitutional to teach under any circumstances under the “effect” prong of the Lemon test.

As I co-wrote in Montana Law Review with David DeWolf and John West:

Under the disjunctive Lemon test, all that was necessary to determine that an Establishment Clause violation had occurred was to find that the Dover school board members had predominantly religious motivations for enacting their ID policy. Longstanding U.S. Supreme Court precedent suggests that in resolving constitutional issues, a narrow holding (such as a finding that the school board had religious motives in adopting the policy) is preferable to a broad holding (concerning the definition of science, the motives of the “IDM,” or whether ID is science); in Village of Euclid v. Ambler RealtyCo. the Supreme Court pointed out that it is the “traditional policy of this Court” to decide only the legal question most directly at issue, not all possible legal questions raised by a particular controversy …

Judge Jones had no trouble finding extensive and unambiguous evidence for the religious motives of the Dover Area School Board, which would have disposed of the case under the Ambler Realty principle. Instead, he tried to settle an array of the broadest questions possible, including the proper definition of science, the motives of the “IDM,” the compatibility of Darwinian theory with religion, and even obscure scientific minutiae such as whether the Type-III Secretory System could be an evolutionary precursor to the bacterial flagellum, and whether inductive reasoning provides a quantitative argument for design.

(David DeWolf, John West, and Casey Luskin, “Intelligent Design Will Survive Kitzmiller v. Dover,” Montana Law Review, Vol. 68:7 (Winter, 2007), internal citations removed.)

As regards Judge Jones’ attempt to settle those broad questions, he not only engaged in judicial activism; he got a lot of things wrong. Thus, we would differ with Professor Opderbeck when he states: “I don’t think Judge Jones was playing the role of ‘activist judge’ in the Kitzmiller case.”

Even if Judge Jones wasn’t playing the “activist” judge by finding religious motives of the Dover School Board members, he was playing the activist when trying to settle far more expansive issues unnecessary for the holding in the case. Indeed, Judge Jones later expressed his “fervent hope” that his ruling “could serve as a primer for school boards and other people who were considering this [issue].” That’s pretty much the textbook definition of judicial activism, as we explain in Montana Law Review:

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. Nonetheless, because we have described Judge Jones’s “activism” in detail elsewhere, there is no need to do so here: readers can decide for themselves whether Judge Jones’s ruling tried to settle a controversial social issue by deciding matters far beyond the necessary legal questions he had to address.

Despite Judge Jones’s apparent desire to have the final word on ID for the judiciary, future jurists encountering efforts to address the topic of ID will have not only the right, but the obligation to think for themselves and determine whether the reasoning used by Judge Jones is accurate, necessary, or even relevant. Indeed, future courts may do well to read the balance of this article, which outlines the key errors of fact and law made by Judge Jones in his opinion.

(David DeWolf, John West, and Casey Luskin, “Intelligent Design Will Survive Kitzmiller v. Dover,” Montana Law Review, Vol. 68:7 (Winter, 2007), internal citations removed.)

Professor Opderbeck lets us know that he has more to say on this: “In a separate post, I’ll address Judge Jones’ ruling about whether ID is ‘science,’ which I believe reflects a number of problems in how the law handles the question of how to define ‘science.'” I look forward to that future post, as I can find many (almost too many to catalogue) problems with Judge Jones’ arguments that ID is not science. In fact, our Montana Law Review piece then spends about 40 pages detailing errors of fact and law that Judge Jones made in his ruling about whether ID is science, and whether teaching ID should fail the “effect” prong of the Lemon test.

But Professor Opderbeck’s current statement, “I don’t think Judge Jones was playing the role of ‘activist judge’ in the Kitzmiller case,” all but contradicts his original critique of the Kitzmiller ruling, which charged that Judge Jones “went far beyond the case / controversy at hand.”

Does Professor Opderbeck no longer feel that Judge Jones “went far beyond the case / controversy at hand”? If he does feel the judge went too far, what reason (apart from political concerns) is there to deny that Judge Jones’ ruling was “activist”?