Justiciability of scientific questions

Discovery Institute attorney Casey Luskin wrote,

In order to encourage the judge to understand that it was not appropriate for a court to enter a discussion of whether ID is science, we wrote in Discovery’s legal amicus brief:

"While Amicus believes that there are good reasons to regard intelligent design as scientific, Amicus recognizes that the question itself may be non-justiciable. Questions are non-justiciable when there is “a lack of judicially discoverable and manageable standards.” Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004). Even expert philosophers of science have been unable to settle the question, “What is science?” Still less is this question subject to “judicially discoverable and manageable standards.” Insofar as plaintiffs base their argument on the claim that design is inherently unscientific, and thus inherently religious, finding the scientific status of intelligent design non-justiciable would undermine plaintiffs’ case."

Also, you might want to re-read the 85 Scientist Amicus Brief we filed. It states nearly the same thing as the DI amicus, specifically stating that the Judge should not rule on whether ID is science:

The plaintiffs have invited this Court to determine the status of intelligent design as science. Because the definition of science and the boundaries of science should be left to scientists to debate, this Court should reject the relief requested by the plaintiffs, and affirm the freedom of scientists to pursue scientific evidence wherever it may lead.

In fact the very 1-sentence summary we give of this brief states, “The Nature of Science is not a Question to be Decided by Courts.”

As Casey Luskin pointed out, the issue of the justiciability of scientific questions did not actually have to be addressed in the Kitzmiller v. Dover decision because under the Lemon test the religious motivation of the school board members was sufficient to decide the case. Another way of avoiding scientific questions in Kitzmiller would have been to rule that -- under the endorsement test's "political insider/outsider" principle -- the evolution disclaimer served the purpose of reducing Darwinism's offense to the fundies and thus making them feel less like "political outsiders" (indeed, such reasoning was used in the Selman v. Cobb County opinion but the judge eventually ruled against the school district). However, it is possible that an evolution education case may arise where it would be necessary to decide scientific questions in order to decide the case on the merits. I was not aware that such a case could be dismissed on the grounds that the scientific questions are nonjusticiable.

There are various reasons why a scientific claim may be nonjusticiable, e.g., the claim may be unanswerable, imponderable, unfathomable, unprovable, unfalsifiable, contentious, a matter of opinion, beyond the expertise of judges, or the science may be subject to change. Judicial decisions on the merits of scientific claims can have profound and far-ranging consequences, e.g., such decisions can affect the reputations and careers of scientists, affect funding for research, and affect the direction of scientific research. For example, some physicists consider string theory to be unscientific, but a lot of physicists are doing research on it. Considering how the Darwinists have been crowing over a badly flawed anti-ID decision of a single judge, one can only imagine what they would do with, say, an anti-ID decision from the Supreme Court -- conversely, one can only imagine what the fundies would do with a pro-ID decision from the Supreme Court. What is worse, under Judge Jones' "contrived dualism" principle where the only two possibilities are Darwinism and ID, a ruling against ID could be interpreted as a ruling against all criticisms of Darwinism. Forcing the courts to decide a nonjusticiable scientific question just because such a decision is necessary to decide a case on the merits can have disastrous consequences. Darwinists who are applauding Judge Jones' ID-as-science decision are playing with fire.

Before now, I thought that the only judicial standard for deciding scientific questions in the courts was Daubert v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579 (1993). But Daubert never mentions the possibility that a case could be dismissed on the grounds that a scientific question is nonjusticiable.

Anti-ID law scholar Jay Wexler said of Kitzmiller,

The opinion's main problem lies in the conclusion that most evolution supporters were particularly pleased with -- namely, the judge's finding that ID is not science. The problem is not that ID is science. Maybe it is science, and maybe it isn't. The question is whether judges should be deciding in their written opinions that ID is or is not science -- a question that sounds in philosophy of science -- as a matter of law. On this question, the answer is "no," particularly when the overall question posed to the Court is whether teaching ID endorses religion, not whether it is or is not science. The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous to both science and freedom of religion. The judge's determination that ID endorses religion should have been sufficient to rule the policy unconstitutional.

. . . if one judge can practice philosophy of science, what is to stop others from doing the same? Perhaps the next judge to hear an ID case will decide that science simply means "the process of searching for the best logical explanations for observed data." In that case, schools might be allowed to teach … ID… Is this really a can of worms that ID opponents want to open?

Biology professor J. Scott Turner said of Kitzmiller,

My blood chills ... when these essentially harmless hypocrisies are joined with the all-American tradition of litigiousness, for it is in the hand of courts and lawyers that real damage to cherished academic ideas is likely to be done . . . courts are where many of my colleagues seem determined to go with the ID issue. . . I believe we will ultimately come to regret this.

Although there was general jubilation at the ruling, I think the joy will be short-lived, for we have affirmed the principle that a federal judge, not scientists or teachers, can dictate what is and what is not science, and what may or may not be taught in the classroom. Forgive me if I do not feel more free.

So in addition to the "political insider/outsider principle" of the endorsement test, there is another basis for avoiding ruling on scientific issues in court cases on evolution education: the scientific issues are nonjusticiable. Judge Jones, by calling the decisions of judges "workmanlike," tries to give the false impression that his decision was the only reasonable outcome of the Kitzmiller case. I have never heard anyone else describe the work of judges as "workmanlike," as though judges were following a set of instructions in a manual.

However, I disagree with some of Casey's statements in the article I cited. Casey said,

Some Darwinists are presently making the false assertion that Discovery Institute wanted Judge Jones to rule broadly on whether ID is science in the Kitzmiller case. All this comes in the wake of Judge Jones’ recent admissions regarding the activist nature of the Kitzmiller ruling. The Darwinist response to Judge Jones's admissions is revealing: Rather than defending the Judge Jones activist behavior in the Kitzmller ruling, Darwinists have implicitly conceded the activism by changing the subject, and attacking us for allegedly encouraging its activism.

The Darwinists were not conceding, implicitly or otherwise, that Judge Jones is an activist -- they were (1) criticizing the Discovery Institute for accusing Judge Jones of activism and (2) claiming that the DI had been inconsistent by encouraging him to rule on ID-as-science and then condemning him as an activist for doing so. However, as Casey shows, the charge of inconsistency is false.

Also, Casey said,

Whether ID is science goes to the "effect" prong of the Lemon test. But here's the important point to answer your question: if you find evidence for religious motives, the Supreme Court ruled in Edwards v. Aguillard that no inquiry into the effect prong (i.e. whether ID is science) is necessary: "[i]f the law was enacted for the purpose of endorsing religion, ‘no consideration of the second or third criteria [of Lemon] is necessary.’" Thus it wasn't even necessary for Judge Jones to look at the effect of teaching ID (i.e. asking "is ID science?") if he found religious motives.

That was not the official reason the Supreme Court gave for not inquiring into the effect prong in Edwards v. Aguillard -- the official reason the Supreme Court gave was that the experts offered by the government did not participate in the enactment or implementation of the law in question:

. . . the postenactment testimony of outside experts is of little use in determining the Louisiana Legislature's purpose in enacting this statute. The Louisiana Legislature did hear and rely on scientific experts in passing the bill, but none of the persons making the affidavits produced by the appellants [p596] participated in or contributed to the enactment of the law or its implementation. The District Court, in its discretion, properly concluded that a Monday morning "battle of the experts" over possible technical meanings of terms in the statute would not illuminate the contemporaneous purpose of the Louisiana Legislature when it made the law

This reason for refusing to hear expert scientific testimony applies to the Kitzmiller case. Anyway, the conclusion is the same as Casey Luskin reached -- Judge Jones' decision to hear expert scientific testimony did not follow the precedent of Edwards v. Aguillard.
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