Judge Jones, March of Slimes "activist judge" poster boy

Ed "It's My Way or the Highway" Brayton, who has long claimed that the term "judicial activism" is meaningless, has posted on his blog an article titled "The Varieties of Judicial Activism" which cites a long treatise titled "The Origin and Current Meanings of 'Judicial Activism'". He also discusses the meaning of "judicial activism" here.

Those who have tried to define "judicial activism" have apparently never explained why judicial activism should be defined as being fundamentally different from any other kind of activism. In general usage, the term "activist" usually describes a person with an agenda who will stop at nothing in pursuit of that agenda. I feel that there is a need for a general catch-all term to describe the machinations of judges with agendas, and I feel that now there is no such general term. I think that there should be a catch-all term that covers all bad judicial practices, including arbitrariness, capriciousness, overreaching, abuse of discretion, violation of the absence of discretion, deciding issues that are not before the court, etc.. So for my purposes, I will define "judicial activism" as being such a catch-all term. Because "judicial activism" has no agreed-upon definition, people may define the term to mean anything they like.

Here specifically are some bad things that Judge "I am not a lousy judge" Jones did that fit my own definition of "judicial activism":

1. Deciding issues that are not before the court

Judge Jones banned all criticisms of Darwinism from Dover classrooms, even though only intelligent design was before the court -- in the conclusion section of the opinion, Jones said, inter alia, "we will enter an order permanently enjoining Defendants . . . . from requiring teachers to denigrate or disparage the scientific theory of evolution."

2. Violation of absence of discretion

In his denial of book publisher Foundation for Thought and Ethics' motion to intervene, Judge Jones asserted that having a "purely economic" interest in the case was an unfavorable factor :

Plaintiffs accuractely submit that the United States District Courts for the Middle and Eastern Districts of Pennsylvania have denied motions to intervene for lack of a sufficiently protectable legal interest in several instances where the proposed intervenors' only interest was an uncertain and purely economic one.(page 12, emphasis added)

Rule 24 (a) Intervention of Right of the Federal Rules of Civil Procedure says, inter alia,

Upon timely application anyone shall be permitted to intervene in an action . . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

"[A}n interest relating to the property or transaction which is the subject of the action" sure sounds like an economic interest to me. Though Rule 24(a)(2) did not require Jones to treat an economic interest as a sufficient reason to allow intervention, the rule did require him to treat it as a supporting reason for intervention, and he did not do so.

3. Interpreting authorities in ways that are not even suggested by -- and are even contrary to what is suggested by -- those authorities.

In interpreting the First Amendment's establishment clause, Jones said in a commencement speech at Dickinson College,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state. (emphasis added)

There is nothing in the establishment clause that suggests such an interpretation -- in fact, such an interpretation of the establishment clause is absurd. Jones was making the self-contradictory claim that the Founders' purpose behind the establishment clause was to establish their own "true religion" -- as defined by Judge Jones -- as the official state religion! Jones' statement also shows hostility towards organized religion. Jones dared not put such a statement in the Kitzmiller opinion, but I think that a public statement made by a judge outside of court should be given the same weight as any statement that a judge makes inside the courtroom or in a written ruling.

4. Abuse of discretion

On pages 5-9 of his denial of FTE's motion to intervene, Judge Jones abused his discretion by ruling that the motion was "untimely." He emphasized the single negative factor, that several months had elapsed since the lawsuit was filed, while ignoring or dismissing the several major extenuating and mitigating factors: (1) - a huge 3-4 months before the start of courtroom testimony, (2) - the recently received plaintiffs' subpoena was the first indication to FTE that FTE's book "Of Pandas and People" would be central to the case, (3) - no new issues -- the book had already become central to the case, (4) - no new expert witnesses -- FTE apparently just wanted to bring back expert witnesses who had withdrawn, and (5) - FTE had been depending on expert witness William Dembski for representation and Dembski then withdrew. The claim that the parties already in the case would have had to start over from scratch if FTE had been admitted as an intervenor is utterly without foundation.

The above stuff is just the tip of the iceberg.

Under my reasonable definition of "activism," Judge Jones is the March of Slimes "activist judge" poster boy. It seems that all he can do to try to defend himself is say "I am not an activist judge" and "people term 'activist judges' judges they don't agree with" and accuse his critics of attacking the principle of judicial independence.

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Question for Judge Jones and other worshippers of the founding fathers: If the founding fathers were so smart, then why was there a civil war over disagreements in interpretations of the Constitution? Looks to me like the founding fathers really screwed up big time. And these are the guys who we are supposed to let tell us how to live our lives?