Sandefur wrong about Judge Jones' "judicial activism"

I wish that I could post this comment on the Panda's Thumb blog, but I have been banned there. If I try posting comments there under a false name, then self-appointed blogosphere goons like Kevin Vicklund, seeing the obvious intelligence and knowledgeability of the comments, will shout "hey -- it's Larry again" and demand that the comments be censored immediately. And the PT bloggers often comply. Some of the PT bloggers -- Brayton, Myers, and Elsberry -- also censor comments on their personal blogs (to their credit, some PT bloggers have not censored my comments on their personal blogs). Bloggers who arbitrarily censor comments are afraid of open debate. I am not afraid of open debate -- that is why this blog has a no-censorship policy (no, Voice in the Wilderness, my no-censorship policy does not obligate me to allow gossip about my private affairs).

In a Panda's Thumb post responding to pages 14-17 (pages 8-11 of the pdf file) of the Montana Law Review's main Discovery Institute article about the Kitzmiller v. Dover, Timothy Sandefur says,
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. . .De Wolf, et al., contend that Judge Jones acted in an “activist” manner because he “tried to settle a controversial social issue by deciding matters far beyond the necessary legal questions he had to address.” (p. 17)[p. 11 of pdf file]. That is, by concluding that ID is not science, in addition to concluding that ID is religion, Judge Jones went farther than necessary. But that’s not activism—that’s orbiter dicta. Dicta is a legal term meaning “words in a judicial decision that aren’t necessary to the particular holding in a case” (or, literally, “words around (the subject)”). (emphasis added)

But as the Discovery Institute article noted, Judge Jones himself claimed that the ID-as-science section of the Kitzmiller opinion was necessary:

. . 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)

Also, the ID-as-science section is seen by many as the centerpiece of the opinion because this section applies to Intelligent Design in general whereas the rest of the opinion just applies specifically to the Dover Area school district and its school board. So the ID-as-science section can hardly be considered to be just "words around the subject."

Two reasons why dicta are generally not considered to be binding precedent are: (1) the issues in dicta might not have been contested by the litigants and (2) dicta are often not carefully considered by the judges who write them. Neither of those two reasons apply to Kitzmiller v. Dover.

Also, the term dictum usually refers to a brief remark whereas the ID-as-science section is about 6,000 words long.

Also, Judge Jones has been inconsistent in his use of the term "activist judge." In the Kitzmiller opinion, he claimed that he is not an activist judge, then in out-of-court statements he defined "activist judge" as a judge "whose decision you disagree with." So he was essentially claiming that he is a judge whose decisions nobody disagrees with. Also, his speaking in the voice of the court -- "this is manifestly not an activist Court" -- sounds like he was speaking for his entire federal district court whereas he was just speaking for himself. IMO judges should sometimes just cut the high-falutin imperial "we" and "us" malarkey and just use a candid "I" or "me."

Actually, Judge Jones' definition of "activist judge" as a judge "whose decision you disagree with" is not a definition at all because in any specific instance the term would mean different things to different people, depending on whether or not one disagrees with the judge's decision.

I tend to agree, though, that the terms "activist judge" and "judicial activism" have become almost meaningless because so many ideological groups have tried to hijack these terms for their own exclusive use. I discuss these terms in this blog article.

Also, the Discovery Institute's article in the Montana Law Review said,

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. (page 16 of Montana Law Review, page 10 of pdf file)

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