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Friday, March 02, 2007

Judge Jones' lame excuses for deciding to rule on ID-as-science issue

An article by Casey Luskin said,

As noted recently, anti-ID legal scholar Jay Wexler believes that Judge Jones went too far when he tried to address whether ID is science in the Kitzmiller ruling. Wexler also complains that “The Judge Did Not Explain Why He Addressed the "Is it Science?" Issue” and argues that Judge Jones gives “no coherent answer” to that question: “If there is no coherent answer, then Judge Jones' explanation that consideration of the science issue will be useful to other courts likewise falters.” (Jay D. Wexler, “Kitzimller and the ‘Is It Science?’ Question,” 5 First Amendment Law Review 90, 108, 109 (2006).)

I don't understand exactly what Wexler is saying here. Judge Jones did explain why he addressed the "Is it Science?" issue, but his explanations are not good ones and are not supported by legal authorities. And Jones did not explain why "consideration of the science issue will be useful to other courts." I am aware of the following explanations that Jones gave as to why he decided to address the "Is it Science?" issue:

(1) As stated in the Kitzmiller opinion, the ruling on ID-as-science was made "in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us." This reason was given both in the opinion and in post-decision statements made by Judge Jones.

(2) In the opinion, he said that he found "it incumbent upon the Court to further address an additional issue raised by Plaintiffs." He gave no legal reason as to why it was "incumbent." He stated that the defendants had already failed the endorsement test, so there was no need for him to address the issue of whether ID is science.

(3) In post-decision statements, he said that he ruled on the issue because both sides asked him to -- an example is here.

Jones gave no legal basis for any of the above reasons. I think that all three reasons are lame excuses.

Here is the complete statement from the Kitzmiller opinion (pages 63-64):

We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants' conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science. To be sure, our answer to this question can likely be predicted based upon the foregoing analysis. While answering this question compels us to revisit evidence that is entirely complex, if not obtuse, after a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us. (emphasis added)

BTW, it is especially disturbing that Judge Jones said that his answer to the question of whether ID is science "can likely be predicted based on the foregoing analysis," the "foregoing analysis" being the analysis of the question of whether the Dover community "would perceive Defendants' conduct to be a strong endorsement of religion pursuant to the endorsement test." Jones implied that his answer to the question of whether ID is science was prejudiced by his answer to the question about the perception of the Defendants' conduct.

Casey said,

. . .what reason has Judge Jones given publicly as to why he tried to determine whether ID is science?

The answer to that question may be interesting, but it should not be necessary to resort to citing a judge's out-of-court statements in order to explain that judge's reasoning in a particular decision. Anyway, I would be delighted if Judge Jones' remarks about "true religion" in his Dickinson College speech were cited in a future court case. Jones showed great hostility towards organized religions by essentially saying that they are not "true" religions.

Casey continued,
Last year Judge Jones twice explained to reporters why he decided whether ID is science. Speaking to Dickinson Magazine he declared:
“I thought it was incumbent upon me to make that call as part of my decision so that we wouldn’t have this litigation replicated someplace else and another school board wouldn’t be exposed to the high fees that this school board exposed itself to.”

Later, speaking to a Pennsylvania legal news journal, Judge Jones stated:
“I had a fervent hope that although some people would likely disagree with the opinion, it could serve as a primer for school boards and other people who were considering this.”

(Judge Jones quoted in Lisa L. Granite, One for the History Books, 28-Aug. Pa. Law. 17, 22 (2006).)

So Judge Jones’ justification for deciding whether ID is science seems clear: he wants his ruling to have an impact upon school boards and parties outside of those involved in the Kitzmiller case.

However, as I pointed out above, that was only one of the justifications that Jones gave -- the other justifications were that the plaintiffs or both the plaintiffs and the defendants asked him to rule on the question.

Casey continued,

In fact, such a justification matches the exact definition of judicial activism from legal scholars:

“[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.”

(Lawrence Baum, American Courts: Process and Policy 316 (4th ed., Houghton Mifflin Co. 1998).)

"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-à-vis the political branches, the Framers and Ratifiers of the Constitution, or other courts deciding cases in the past or in the future.”

(Ernest A. Young, Judicial Activism and Conservative Politics, 73 U. Colo. L. Rev. 1139, 1145 (2002) (internal citations omitted).)

IMO courts have sometimes bent over too far backwards in trying to avoid policymaking -- I think this happened in the DeFunis v. Odegaard reverse discrimination case and the suit against "under god" in the Pledge of Allegiance. However, IMO judges cannot go too far in trying to avoid judging controversial scientific issues -- there are several reasons why the courts should try to avoid judging controversial scientific issues.

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