More breathtaking inanity from Judge Jones
Too bad that Judge Jones was not interviewed by someone who knew the right questions to ask, like questions about the following:
(1) -- Jones' statement in his Dickinson College commencement speech that his Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions.
(2) -- in the ID-as-science section of the opinion, Jones' one-sided nearly verbatim copying of the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs.
(3) -- his denial of the book publisher's motion to intervene.
Many other good questions are in this blog's numerous articles in this blog's post-label groups -- listed in the sidebar of the home page -- about Judge Jones and the Kitzmiller v. Dover case.
Judge Jones has dropped his previous policy of not commenting about the specifics of the Dover case.
Here are my responses to Judge Jones' responses in the interview:
Jones: by the '50s in the US, with Sputnik and the Cold War, there was a belief that we were falling drastically behind in science education and in other things, and you began to see a much more dedicated science component of education.
Yes, but I can't remember any emphasis on evolution education. I don't even remember studying evolution at all in high school biology in the early '60's.
Jones: However, in certain pockets of the United States, particularly the South, there were anti-evolution statutes still on the books, and starting in the late 1960s, there was a progression of cases…
Jones is exaggerating here. Though bills to ban the teaching of evolution were introduced in many states, only four states ever had laws banning the teaching of evolution (Oklahoma's law was repealed in the 1920's) and only two state legislatures passed resolutions against the teaching of evolution -- see this post for details.
Jones: . . .the [Supreme] Court [in Edwards v. Aguillard] said, “No, a studied examination of creation science indicates that it is nothing more than creationism labeled in a different way.”
Wrong -- the Supreme Court didn't say that. In Edwards v. Aguillard, the courts never ruled on the scientific merits of creation science. The district court refused to hear expert testimony on the scientific merits of creation science and that refusal was approved by the Supreme Court, which said,
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.
Back to the interview:
Jones: I think laypersons apprehend that when we get a case, it's incumbent upon us to go into an intensive study mode to learn everything about it. Actually that is the wrong thing to do. The analogy is that when I have a jury trial in front of me, I always instruct jurors, particularly in this day and age when you can Google anything, not to do that. I don't want you to do any research or investigation. Everything you need to decide this case you'll get within the corners of this courtroom.
That policy of avoiding outside influences is OK in regard to facts that pertain only to a specific case, but I see no reason for avoiding outside influences regarding a broad general subject. After all, Jones admitted that he had already been influenced before the trial by the movie Inherit the Wind, and he even joked about watching the movie again during the trial to attempt to get additional historical perspective (though the movie is not a historically accurate depiction of the 1925 Scopes trial).
Gitschier: Regarding the Memorandum Opinion itself, I found parts of it astonishing. You used words like “mendacity,” “sham,” “breath-taking inanity of the board's decision.”
Jones: You should have been there.
Judges should avoid taking potshots at the parties.
Gitschier: It's almost like a command performance! There's no jury, it's not televised. All of these knowledgeable people…
Jones: Playing to an audience of one. Which was fascinating.
"Playing to an audience of one"? What conceit -- that statement shows Jones' lack of humility.
Gitschier: I want to address a very specific part of your Memorandum Opinion, which is defining science. What were you trying to do here?
Jones: First of all, both sides presented ample scientific testimony, and they asked me to decide that.
Again, Jones repeats his mistaken notion that he was obligated to rule on the scientific questions just because both sides asked him to.
Jones: the first test that the Court came up with is the Lemon test, Lemon v. Kurtzman [another Pennsylvania case regarding the reimbursement of Catholic schools by the state superintendent of schools].
What came out of Lemon were three prongs that judges have to look at. The first is: what is the purpose of the enactment? The second is: what is the effect of the enactment? And the third is: is there an excessive entanglement between religion and government?
A minor point: the third prong, excessive entanglement, is now often combined with the second prong, so the Lemon test is now often just a two-prong test. But an important fact about the Lemon test is that courts are no longer required to use it.
The endorsement test, boiled down to its essence, takes the first two prongs—the purpose and the effect prongs—and collapses them together, and just makes it easier to apply, although it is always hard to judge these cases.
Wrong -- the endorsement test is a completely separate test. Justice O'Connor's summary of what was to become known as the endorsement test was as follows, in her concurring opinion in Lynch v. Donnelly:
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive [p688] entanglement with religious institutions . . . . . The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.
Back to the interview:
Jones: Remember, the opinion doesn't have precedential effect outside of Pennsylvania. In other words, I am a Federal District court with jurisdiction over this big middle of Pennsylvania, but I'm not the Supreme Court of the United States.
The opinion does not have precedential effect anywhere outside the Dover Area school district.
I have been speaking all around the US, but I don't go and try to say what I did in the opinion.
Wrong -- you just did go and try to say what you did in the opinion. You very thoroughly discussed specifics of the case.
What I developed was a passion for the concept known as “judicial independence,” meaning that concomitantly with the science education issue that I just raised, I don't think Americans understand how judges operate.
Wrong -- Americans do understand how judges operate. Judge Jones has been using the "judicial independence" idea to duck legitimate criticism of his Dover decision.
Recommended reading from the Judge:
Summer for the Gods by Edward J. Larson;
The Devil in Dover by Lauri Lebo;
40 Days and 40 Nights by Matthew Chapman.
Additional recommended reading: "Traipsing Into Evolution" by the Discovery Institute.