Another legal scholar says that Dover decision was too broad
The court's decision in Kitzmiller to strike down the Dover School Board's policy seems correct, especially in light of the Dover board members' attempts to inject religion into their public school. The scope of the court's decision wrongly exceeded the board members' actions, however, and it placed the courts further into the center of a larger scientific and philosophical debate about the legitimacy of intelligent design . . . . . .
When comparing this court's analysis of the Dover Board's policy with other courts' dispositions of statutes and policies affecting the teaching of evolution in public schools, it is evident that Dover's policy would have been struck down on different grounds than those used by the Middle District of Pennsylvania. In fact, under the cases that previously dealt with this issue, the scientific basis of intelligent design most likely would have escaped judicial evaluation.
BTW, the above article has a fairly long discussion (pages 10-12) of the little-known Freiler v. Tangipahoa Parish Board of Education evolution disclaimer case (the case is also mentioned elsewhere in the article).
I have noted that another legal scholar, Jay Wexler, also said that Judge Jones should not have ruled on the scientific merits of ID. BTW, Wexler is a contributor to a book titled "Not In Our Classrooms -- Why Intelligent Design is Wrong for Our Schools" (he is not the book's sole author as previously incorrectly indicated). Also, 85 scientists submitted an amicus brief urging Judge Jones to not rule on the scientific merits of ID -- he ignored the brief, of course.
Judge Jones himself was the first to suggest that he is an "activist judge" -- he self-consciously wrote in the Kitzmiller opinion,
Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. (page 137)
Of course, as the saying goes, Jones was protesting too much. He made himself look even more foolish by later saying, "people term 'activist judges' judges they don't agree with."
Other articles that argue that Judge Jones should not have ruled on the scientific merits of ID are here, here, and here (on this blog).
The reluctance of some judges or justices to rule on scientific questions is illustrated by the following exchange between Justice Antonin Scalia and an attorney at a Supreme Court hearing (pages 22-23):
JUSTICE SCALIA: -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.
MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.
JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist.
JUSTICE SCALIA: That's why I don't want to have to deal with global warming, to tell you the truth.