Scientific American duped by Wickedpedia

A report of a roundtable discussion between Scientific American magazine editors and Mark Mathis, associate producer of the movie "Expelled," said,

One point requires response here. Mathis charged that some 92 percent of the judge’s decision in the Dover intelligent design trial was copied directly from papers filed by the American Civil Liberties Union (ACLU). We said we would follow up and find out the truth. We did. In fact, Mathis was wrong in three ways. One, even the Discovery Institute’s own charge is that the judge copied 90.9 percent of ACLU material for one specific section in the judge’s decision. Second, a correct statistical workup finds that the number is as low as 35 percent, depending on whether you include material filed that is not included in the decision and the length of word strings. But the most important point is one that I guessed at in the conversation. We spoke to actual legal experts who told us that when the sides in a trial file their facts, it is with the hope that they make the case strongly enough for the judge to incorporate their texts into the finding of fact section of the decision. Therefore the charges that Mathis makes against Judge Jones are both incorrect in detail and spurious in spirit. For more information, you can go to footnote 88 in the Wikipedia entry on the Discovery Institute. There’s more info on the permissibility of using filed facts in a decision at The Panda’s Thumb Web site, pandasthumb.org. It’s an entry called "Weekend at Behe’s" dated December 12, 2006.

Regarding the Discovery Institute's charge that 90.9 percent of the Dover opinion's ID-as-science section was copied from an ACLU brief (the DI report that originally made the charge is here) --
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(1) The Wickedpedian control-freak administrators refused to post a link to the DI's defense of the charge.

(2) The Wickedpedian adiminstrators refused to post criticism or a link to criticism of the computer method used to obtain much lower estimates of the extent of copying.

Wickedpedia has no credibility. The smoking gun is in the following Wickedpedia discussion pages for the article titled "Discovery Institute" -- "Casey Luskin", "Text Comparison", and "Appeals Court opinion". These are archived discussion pages -- some of the comments in them have since been censored by the Wickedpedian control-freak administrators.

Here is an excerpt from these discussion pages:

The text comparison cited in the court opinion required only a simple word-finding function, which even the simplest word-processing programs possess (i.e., the program counted the number of times "creation" or "creationism" appeared and the number of times that "intelligent design" was substituted). A simple word-finding function is trivial in comparison to your program's attempt to compare ideas of the opinion's ID-as-science section and the ACLU's "proposed findings of fact and conclusions of law " brief (a discussion of Elsberry's computerized comparison of the opinion and the ACLU brief is here). Using a computer program to compare ideas in two different texts is unreliable -- particularly when the program shows a low correlation -- because ideas can remain unchanged while substituting synonyms, inserting or deleting superfluous or non-essential words, paraphrasing text, and scrambling sentences and paragraphs. The only reliable way to compare the ideas in two different texts is by a side-by-side visual comparison of the two texts, and the Discovery Institute's report showed the two texts side by side for a visual comparison. The similarity of ideas in the opinion and the ACLU brief is readily apparent in this side-by-side comparison. BTW, I don't accept the DI's 90.9% text correlation figure either.

Your statement here that your program is "approved for use and considered authoritative in Federal court" is a gross misrepresentation. You failed to show that even a single judge ever accepted the results of your program for the purpose that you claimed here: a comparison of the ideas in two different texts as opposed to mere word-finding, which virtually any word-processing program can do. Furthermore, your statement "approved for use and considered authoritative in Federal court" implies approval by the entire federal court system whereas you have not shown approval by even a single federal judge.

And here is another quote --

You folks are really making a mountain out of a molehill by making such a big stink about adding a rebuttal from the Discovery Institute. You are contributing to Wikipedia's already bad reputation as an unreliable source.

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Sleazy PZ falsely accuses Casey Luskin of quote-mining

Sleazy PZ Myers posted an article charging that the following statement from an op-ed by the Discovery Institute's Casey Luskin contains quote mines from a U.S. National Academy of Sciences booklet titled Science, Evolution, and Creationism:

In January, the U.S. National Academy of Sciences weighed in on this debate, declaring that "[t]here is no scientific controversy about the basic facts of evolution," because neo-Darwinism is "so well established that no new evidence is likely to alter" it.

Casey's two above quotes came from pages 52 and 16 of the booklet. Sleazy PZ charged that Casey's above statement misrepresents the NAS's position.

Here is the full context of the 2nd quote, from a comment by John Pieret on the Panda's Thumb blog:
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Many scientific theories are so well established that no new evidence is likely to alter them substantially. For example, no new evidence will demonstrate that the Earth does not orbit around the Sun (heliocentric theory), or that living things are not made of cells (cell theory), that matter is not composed of atoms, or that the surface of the Earth is not divided into solid plates that have moved over geological timescales (the theory of plate tectonics). Like these other foundational scientific theories, the theory of evolution is supported by so many observations and confirming experiments that scientists are confident that the basic components of the theory will not be overturned by new evidence. However, like all scientific theories, the theory of evolution is subject to continuing refinement as new areas of science emerge or as new technologies enable observations and experiments that were not possible previously. (emphasis added)

If the word 'it" at the end of Luskin's statement is changed to "them" so that the reference is to "basic facts of evolution" rather than "neo-Darwinism" (possibly including the details of evolution as well as the basic facts of evolution), then Luskin's statement is essentially the same as the second bolded statement above:

In January, the U.S. National Academy of Sciences weighed in on this debate, declaring that “[t]here is no scientific controversy about the basic facts of evolution,“ because neo-Darwinism is “so well established that no new evidence is likely to alter” [them].

So it appears that Luskin is at worst just guilty of a poor word choice. IMO any misrepresentation of the NAS's position was too subtle to have been deliberate.

In contrast to Luskin's innocent poor choice of a word, Judge Jones did some real quote-mining. Jones said in his Dickinson College commencement speech,

. . . this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry." * At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, "to secure their idea of religious freedom by barring any alliance between church and state." * (quote mines are shown in bold)

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* Quotations from The Founding Fathers and the Place of Religion in America by Frank Lambert (Princeton University Press, 2003).

The book that Jones quote-mined says,

How did the Puritan Fathers erecting their "City upon a Hill" transform into the Founding Fathers drawing a distinct line between church and state? The answer lies in the changing meaning of freedom in the concept of freedom of religion. To the Puritans who fled persecution, Massachusetts Bay represented the freedom to practice without interference the one true faith, which they based solely on the Bible, correctly interpreted. Thus religious freedom in the "City upon a Hill" meant freedom from error, with church and state, though separate, working together to support and protect the one true faith. Those who believed differently were free to go elsewhere and sometimes compelled to do so. The Founding Fathers had a radically different conception of religious freedom. Influenced by the Enlightenment, they had great confidence in the individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason. To them, true religion was not something handed down by a church or contained in the Bible but rather was to be found through free rational inquiry. Drawing on radical Whig ideology, a body of thought whose principal concern was expanded liberties, the framers sought to secure their idea of religious freedom by barring any alliance between church and state. (Quote mines are again shown in bold. Sorry for the long quote, but I wanted to give the quote mines some more context)

By failing to mention the "radical Whig ideology" that was mentioned in the book, Jones gave this alleged "true religion" of the Founders more credit for the establishment clause than the book gave -- the "radical Whig ideology" may have even been essential for the creation of the establishment clause. Even the book gave this "true religion" too much credit -- in establishment clause histories given in two Supreme Court decisions, Everson v. Board of Education (1947) and Engel v. Vitale (1962), this "true religion" is not even given honorable mention as a contributing factor (so much for Jones' emphasis on the importance of judicial precedent). In contrast to Casey Luskin, Judge Jones obviously deliberately misrepresented his source. Furthermore, Jones did not credit his source when he gave his speech. And most importantly of all, Judge Jones was supposed to show neutrality towards organized religion and he did not.
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Views about Judge Jones' "true religion" speech

Judge Jones blowing smoke -- and hot air.







I have often been accused of "misinterpreting" the following plain statements of Judge Jones' Dickinson College commencement speech:

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

John West, a Discovery Institute senior fellow, said,
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In the area of religion, Judge Jones is a long-time member of a Lutheran church in Pottsville, Pennsylvania. But his views on religion seem to be of the decidedly liberal variety and rather inhospitable to the views of more traditional believers. In a graduation speech to the students of Dickinson College in 2006, for example, he praised America's Founders for supposedly believing that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry."

This amazing statement is worthy of further analysis. First, it falsely suggests that people must choose between believing in religious authority (such as the Bible) and "free, rational inquiry." Second, the statement implies that those who believe in the Bible or the teachings of their church are somehow anti-American because they reject the ideals of America's Founders.

In reality, and contrary to Judge Jones, most of America's Founders did not believe that the teachings of the Bible or churches were in conflict with the teachings of "free, rational inquiry." Indeed, as I argue in my book, The Politics of Revelation and Reason, the Founders generally believed that revelation and reason converged on same truths, especially in the area of morality. The Founders' belief in the agreement of revelation and reason supplied the basis for all citizens to enter the public square on an equal basis, regardless of their religious beliefs. In the Founders' system, so long as religious believers could offer secular reasons for their public policy proposals in addition to whatever religious reasons they might have, they had the right to be heard.

However, by insisting that belief in religious authority and belief in (secular) "rational inquiry" are opposed to each other, Judge Jones sets the stage for depriving traditional religious believers of their equal rights as citizens. If public policies must be justified in terms of secular reason, and if religious traditionalists are by definition opposed to this sort of "free, rational inquiry," then anything religious traditionalists propose must be constitutionally suspect according to Judge Jones.

Hence, if certain intelligent design proponents happen to be traditional religious believers, their policy ideas must be disqualified no matter what the secular reasons they offer for them -- because by definition those secular reasons cannot be genuine. This false dichotomy between faith and reason owes more to the French Enlightenment than the American Founding. And it explains far more about the inspiration behind Judge Jones' faulty ruling than the fact that he is a "church-going Republican."

West actually criticized Jones' speech more harshly than I did. My interpretation of Jones' speech was more literal than West's -- for example, I did not claim that Jones implied that "those who believe in the Bible or the teachings of their church are somehow anti-American because they reject the ideals of America's Founders" (though I would not be surprised if Jones believes that).

In contrast to John West and myself, William Dembski and Fatheaded Ed Brayton appeared to be concerned only with whether Judge Jones' statements about the Founders' religious beliefs were accurate or not, and did not appear to be concerned about the obvious fact that Jones showed extreme prejudice against Intelligent Design and the Dover defendants. Dembski said,

In his 139-page decision, Judge Jones revealed his deficiencies in science. In his commencement address described below, he reveals his deficiencies in history. Note the passage in bold (i.e., “The founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry.") Who among our nation’s founding fathers believed that the essence of religion is an Enlightenment rationalism that eschews design? None of them. Even Jefferson would be on the ID side in the current debate (inalienable rights conferred on us by a creator is not the language of the French philosophes).

Fatheaded Ed Brayton said,

The more I see from this guy, the more I like him. Over the weekend, he gave the commencement address at his alma mater, Dickinson College. I like much of what he had to say (here Brayton quotes a York Daily Record news article -- the same article quoted by Dembski -- that is no longer available) --

“The founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry,” said Jones, who was thrust into the national spotlight by last year’s court fight over the teaching of evolution in the Dover school district.

The founding fathers - from school namesake John Dickinson to Alexander Hamilton and Thomas Jefferson - were products of the Enlightenment, Jones said.

“They possessed a great confidence in an individual’s ability to understand the world and its most fundamental laws through the exercise of his or her reason,” he said.

“This core set of beliefs led the founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.”

This fits very well with the notion that Jon Rowe and I have been advocating for a couple years now, that the leading lights among the founders (the first four presidents, plus Ben Franklin, Thomas Paine and a few others) were primarily “theistic rationalists”. All believed firmly in God, of course, but rejected most claims of revelation, believing that we could ascertain the truth about God and the universe through the use of our reason alone.

Fatheaded Ed also said,

. . .whether a given founding father was a Christian or not doesn't tell us anything about his position on separation of church and state. I pointed out that many of the most outspoken advocates of strict separation were Christians, particularly Baptists, who often found themselves jailed by Puritans and Anglicans in those colonies they controlled.

Of course, two-faced Fatheaded Ed sees no conflict between his above statement and Judge Jones' "true religion" speech.
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Judge Jones' "true religion" missing from Supreme Court precedents

Judge Jones said in a commencement speech at Dickinson College that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state. (emphasis added)

However, in establishment clause histories given in two Supreme Court decisions, Everson v. Board of Education (1947) and Engel v. Vitale (1962), Jones' above "true religion" is not mentioned at all, not even as a contributing factor. Everson does mention "true religion," but it is not the kind of "true religion" that Judge Jones described above -- Everson says (page 12) that Madison "eloquently argued that a true religion did not need the support of law."

The hypocritical Judge Jones ignored Supreme Court precedent himself while falsely accusing his critics of ignoring Supreme Court precedent. In a speech at Bennington College, Jones said about media criticisms of his decision,
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What all of them had in common -- all of these criticisms -- was that they omitted to note the role of precedent, how judges work, the Rule of Law. Trial judges carefully find the facts in a case and apply existing precedent as handed down by higher courts -- most notably, in this case, the Supreme Court of the United States. There was simply no attempt [in these media criticisms] to illuminate those issues or educate the public . . . .

To hear these critics tell it, we live in a world where judges make essentially ad hoc determinations. This is really a false world that they tend to propagate, where judges rule according to personal bias, particular whims or political philosophies, or in order to please political benefactors -- or, worse perhaps, respond to the perceived public will at any given time. . . . And that gets into a still larger issue that I think is of somewhat crisis proportions, which I call a crisis in judicial independence. Many judges across the country feel exceedingly threatened by a public, a punditry, and a political establishment that tends to launch ad hominem attacks against individual judges when they disagree with them.

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Quote mines in Judge Jones' Dickinson College commencement speech?

The copy of Judge Jones' commencement speech on the Dickinson College website has the following quote marks and footnote:
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. . . this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry." * At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, " to secure their idea of religious freedom by barring any alliance between church and state." *

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* Quotations from The Founding Fathers and the Place of Religion in America by Frank Lambert (Princeton University Press, 2003).

Note that the speech contains two disconnected quotations from the book. Are these two disconnected quotations actually quote mines? I know for a fact that those quote marks and the book-reference footnote were not added to the online copy of Judge Jones' Dickinson College commencement speech until some time after the speech was posted online. Were these quote marks and footnote added for the purpose of giving an appearance of legitimacy to Jones' remarks connecting "true religion" and the establishment clause (i.e., "barring any alliance between church and state"), even though the book itself might not have made such a connection? If the book itself made no such connection, then quote-mining can be added to Judge Jones' numerous other offenses.
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U.VA. and Judge Jones' "true religion" speech

I have many times noted that Judge Jones showed extreme prejudice against the Dover defendants by saying in a Dickinson College commencement speech that his Kitzmiller v. Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions -- and any religious beliefs not based on "free, rational inquiry" -- are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Judge Jones' above statement implies that he is inclined to go out of his way to attack anything that he could possibly conceive of as representing "false" religion -- e.g., intelligent design.

The phrases "free, rational inquiry" and "constantly engaged and questioned things" bring Thomas Jefferson to the minds of a lot of people. The early history of the University of Virginia, founded by Thomas Jefferson, gives insight into how Jefferson's thinking compared to the thinking of his contemporaries. A webpage of the University of Virginia's website says,

The University of Virginia was founded as a secular university, with no religious affiliation or denominational identity. In contrast, Georgia, UNC, South Carolina, Vermont, Blount College (which became the University of Tennessee), and others chartered as state universities had denominational sponsorship.

Chapel attendance was not required of students at the University of Virginia. Other universities, public and private, required their students to attend church services. In fact, Harvard did not do away with the chapel requirement until late in the 19th century.

Another webpage of the U.VA. website says,

For Jefferson, the college experience should take place within an "academical village," a place where shared learning infused daily life. Plans were developed for ten Pavilions—stately faculty homes with living quarters upstairs and classrooms downstairs—attached to two rows of student rooms and connected by an inward-facing colonnade.

At the head of the shared lawn would stand the library (not, as in most other colleges and universities of the time, a chapel), . . . .

Also, when Jones gave his "true" religion speech, he was standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which has a picture of an open bible and the college motto, "religion and learning, the bulwark of liberty," in Latin.

So even if Judge Jones' statement about "true" religion represents the views of Thomas Jefferson, it is doubtful that this statement represents the views of the Founders in general.

Anyway, IMO judges' establishment-clause decisions should be based on the plain meaning of that clause and not on the judges' notions of what the Founders thought.
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More breathtaking inanity from Judge Jones

An article in the St.Louis JewishLight.com website said,

The legal reasoning behind his ruling that "intelligent design" cannot constitutionally be taught as "science" in public schools, and the importance of Missouri retaining its Non-Partisan Court Plan to assure an independent judiciary were the subjects of a major address by Judge John E. Jones, a U.S. District federal judge serving in Pennsylvania. Jones spoke at a gathering of more than 150 people at an event sponsored by the League of Women Voters of St. Louis, which was held at the Ethical Society last week.

In a brief interview with the St. Louis Jewish Light prior to his formal remarks, Jones, a Republican who was nominated to serve as a federal judge by President George W. Bush and confirmed by the Senate in 2002, said that major Jewish organizations, such as the Anti-Defamation League "have been very supportive" of his ruling in a case arising in Dover, Pa., in which he found that teaching "intelligent design" as "science" in public schools violates the separation of church and state principle in the First Amendment of the U.S. Constitution.

Jones has often said that judges should make decisions without regard to pleasing or offending anyone and now he is bragging that "major Jewish organizations" have been "very supportive" of his Dover ruling. In his speech at a national meeting of the Anti-Defamation League, he said,

A fundamental cornerstone of our justice system, and in fact of our federal and state government, is an independent judiciary. The concept requires judges to decide cases in front of them in a manner faithful to the law without fear or favor and free from political and external pressures.

Under his "judicial independence" doctrine, support from some Jewish organizations is of no more significance than opposition from Christian fundy and other organizations.

Also, I doubt that orthodox Jews have been "very supportive" of his Dover ruling -- opposition to Darwinism is widespread and strong among orthodox Jews.

In addition to his ruling in the intelligent design case, Jones strongly encouraged Missourians to retain the Non-Partisan Court Plan, which was adopted in 1940, under which judges in covered jurisdictions and higher courts are nominated on a non-partisan basis, for later appointment by the governor. "Your system assures that judges will not be subjected to pressures from those who supported them politically, and empowers them to make independent decisions in tough cases like the intelligent design and similar cases."

Even under this plan, the candidates for judgeships still need political support to be nominated -- even if that support is non-partisan -- and will still be subject to pressures from those who supported their nominations. And even without being pressured, a non-partisan judge can be as biased as any partisan judge.

Also, I don't see what is so special about this plan. On Los Angeles County election ballots, candidates for judgeships are non-partisan. Federal judicial nominees are chosen by partisan presidents but federal judges themselves are non-partisan.

Jones was pleased that the Jewish Community Relations Council of St. Louis and other Jewish groups support the retention of the plan, which has been under attack from various conservative groups in Missouri. "It would be a big mistake to eliminate a system which is the envy of much of the rest of the nation," Jones said.

"Envy"? What is there to "envy"? Any jurisdiction is free to adopt this Non-Partisan Court Plan, free of charge.

Jones, a native of Pennsylvania and a graduate of the Penn State School of Law, received the first John Marshall Award for Judicial Independence in recognition of his ruling.

Jones actually graduated from the Dickinson College Law School School of Law, which was affiliated with Penn State at the time merged with Penn State after he graduated. No big error.

So he is the first recipient of the John Marshall Award for Judicial Independence? Was the award created just for him?

Also, this award can easily be confused with the American Bar Association's John Marshall Award (with nothing about "judicial independence" in the name). The ABA's John Marshall Award has been conferred annually starting in 2001 and Jones has never received it. The John Marshall Award is conferred by the national ABA whereas the John Marshall Award for Judicial Independence is conferred by the Pennsylvania Bar Association. I hope that the national ABA takes action to have the latter award canceled or at least renamed.
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Judge Jones' doubletalk about Intelligent Design

Because I thought for various reasons that Judge Jones should not have ruled on the scientific merits of intelligent design or irreducible complexity, I have not paid much attention to the Dover opinion's section dealing with his rulings on those issues. However, an article in Evolution News & Views prompted me to have a closer look.

Judge Jones' Kitzmiller v. Dover opinion says,
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After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980's; and (3) ID's negative attacks on evolution have been refuted by the scientific community. . . . (page 64 of opinion, emphasis added)

. . . . We therefore find that Professor Behe's claim for irreducible complexity has been refuted in peer-reviewed research papers and has been rejected by the scientific community at large . . . . Additionally, even if irreducible complexity had not been rejected, it still does not support ID as it is merely a test for evolution, not design. (page 79, emphasis added))

So Judge Jones said that irreducible complexity is an argument that is "central to ID" and that he "takes no position" on whether "ID arguments may be true," and then he contradicts himself by taking the position that "Professor Behe's claim for irreducible complexity has been refuted in peer-reviewed research papers and has been rejected by the scientific community at large." And while he said that irreducible complexity is "central to ID," he also said that irreducible complexity "does not support ID as it is merely a test for evolution." Sheeeesh -- give me a break.

Believe it or not, the Darwinists are still crowing about the Dover decision. The decision was extensively cited by a letter that biology professors sent to Texas Education Commissioner Robert Scott and in an editorial in the St. Petersburg (Fla.) Times.
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Judge John E. "the workman" Jones III

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In a recent TV interview, Judge John E. Jones III said,

We operate in a very workmanlike way, believe it or not. We find the facts, as we did in this case, by listening to the testimony, and then we apply well-established law to those facts. It's a sequential process that is time-tested. Every judge does it in the United States.

Judge "I am not an activist judge" Jones has been criss-crossing the country giving lectures supposedly "educating" the public about how judges work but has actually been misinforming the public. Jones emphasizes the role of precedents and claims that the work of judges is "workmanlike," giving the false impression that there is only one decision that can be consistent with precedents whereas many different decisions can be consistent with precedents. Judge Jones is trying to duck criticism of his Dover decision by pretending that he was just following a set of instructions in a manual. If judges are just unskilled "workmen," then they should be paid like unskilled workmen.

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Judge Jones misused expression "separation of church and state"

The book "Monkey Girl" has the following quote of Dover defendant Bill Buckingham (page 336):

If the judge called me a liar, then he's a liar . . . .I'm still waiting for a judge or anyone to show me in the Constitution where there's a separation of church and state. We didn't lose; we were robbed.

When I saw the above quote, I didn't imagine that Judge Jones actually used that expression "separation of church and state," but in fact he did. In the conclusion section of the Dover opinion, Judge "I am not an activist" Jones said,

To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, § 3 of the Pennsylvania Constitution, we will enter. . .

The Supreme Court said in Lynch v. Donnelly, 465 U.S. 668, 673,
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The Court has sometimes described the Religion Clauses as erecting a "wall" between church and state, see, e.g., Everson v. Board of Education, 330 U.S. 1, 18 (1947). The concept of a "wall" of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.

No significant segment of our society, and no institution within it, can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government. "It has never been thought either possible or desirable to enforce a regime of total separation. . . ." Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973). Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. See, e.g., Zorach v. Clauson, 343 U.S. 306, 314, 315 (1952); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211 (1948). Anything less would require the "callous indifference" we have said was never intended by the Establishment Clause. Zorach, supra, at 314. Indeed, we have observed, such hostility would bring us into "war with our national tradition as embodied in the First Amendment's guaranty of the free exercise of religion." McCollum, supra, at 211-212.

BTW, Judge Jones above words came almost verbatim out of the Plaintiffs' Findings of Fact and Conclusions of law (page 147 of document, page 151 of pdf file):

351. In order to preserve the separation of church and state mandated by the Establishment Clause, and Art. I, Sec. 3 of the Pennsylvania Constitution, it is necessary and appropriate to enter . . . .

Judge Jones is what is called an "intentionalist" -- he thinks that he follows intentions that the Founders supposedly had but which were somehow not written into the Constitution. Intentionalist judges don't think of themselves as "activists," but in fact they are.

I myself used to use the term "separation of church and state" as just a catchall term covering the establishment and free exercise clauses of the 1st Amendment, but the term has been so misused that I have stopped using it.
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Judge Jones nickname contest

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Seal of Dickinson College







Looking half-asleep, Judge John E. Jones III is shown delivering his infamous "true religion" commencement speech at his alma mater, Dickinson College. In the speech, he said that his decision in the Kitzmiller v. Dover case was based on his notion that the Founders believed that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry.

It is ironic that Judge Jones gave this speech while standing behind the Dickinson College seal, shown above. This seal was designed by USA Founders Benjamin Rush and John Dickinson and has a picture of an open bible and the college motto, "Religion and learning, the bulwark of liberty," in Latin.

His speech showed a strong prejudice against the Dover defendants, regardless of whether or not Intelligent Design is a religious concept. He was lucky that he wasn't impeached. This appearance that Jones was prejudiced against the defendants was reinforced by other actions he took: (1) copying the Dover opinion's ID-as-science section virtually entirely from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs; and (2) giving a speech at a national executive meeting of the rabidly pro-Darwinist Anti-Defamation League (the ADL said that the Dover decision was a "victory for students" and viciously condemned a TV program that linked Social Darwinism to Hitler).

Here are some suggested nicknames for Judge Jones --
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"Jackass" -- what Dover defendant Bill Buckingham called him on PBS NOVA's "Judgment Day"

"Liar" -- what Buckingham called him in "Monkey Girl"

"Neanderthal" -- what Pat Buchanan called him in an Internet article

"Rogue" -- what the Overwhelming Evidence website calls him -- also "wacky zany activist"

"True religion" -- from his Dickinson College commencement speech, described above

"I am not an activist judge" -- from the Dover opinion's statement denying that he is an activist judge. He later said, "People term 'activist judges' judges they don't agree with." Go figure.

"Breathtaking inanity" -- one of his Dover opinion's potshots at the defendants

"Narcissistic putz" -- what Bill Dembski called him after learning that the ID-as-science section of the Dover opinion was virtually entirely copied from the ACLU's opening post-trial brief. The name was a reference to Jones' acceptance of praise for the Dover opinion's ID-as-science section that he did not write.

"Judicial independence" -- from all the lectures he gives around the country complaining that criticism of his Dover decision infringes on his judicial independence

More ideas?

I think that it was the Dover opinion's potshots at the defendants that gave me the idea for a new court rule allowing attachment of litigants' comments to judicial opinions. That would at least level the playing field by giving litigants an equal opportunity to return judges' insults: e.g., judge: "breathtaking inanity"; litigant: "jackass"; etc.. Such a rule would also give litigants the opportunity to rebut judges' arguments (I also propose that judges be allowed to attach short comments rebutting the litigants' comments).
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PBS NOVA's TV show "Judgment Day"

I have posted literally dozens of articles about the Kitzmiller case and Judge Jones (see the sidebar) and of course space does not permit me to review them all here. Nothing in the TV program affects any of my previous comments about Jones and the decision. However, I will make a few comments here about the program.

It was obvious that Darwinism was not going to be proven in a two-hour TV program. IMO the program should have concentrated on the legal issues rather than the scientific issues.

In some ways, the show was better balanced than I had hoped. I didn't see any quote mining and the program was candid in presenting the opposing views. The show of course did not go into a lot of criticisms of Judge Jones and the decision.

Actually, I think that the fundies came across quite well in the program. Here is this theory that is riddled with flaws and gaps and the judge said that the Dover teachers could not be required to criticize it at all for any reason, not even in a one-minute statement. The Kitzmiller opinion said,
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To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, § 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID. (emphasis added)

However, the prohibition of "requiring teachers to denigrate or disparage the scientific theory of evolution" was not, for some unknown reason, included in the final order.

So here Judge Jones was also passing judgment on non-ID criticisms of evolution that he had not even reviewed.

Here are some specific comments about the program:

(1) My favorite part was where defendant Bill Buckingham called Judge Jones a "jackass."

(2) Of course, there was the "contrived dualism" where there is assumed to be only two possibilities, Darwinism and ID.

(3) Judge Jones broke his pledge to not publicly comment specifically about the case. I thought that his role in the program would be just to read excerpts from his written opinion.

(4) The TV show -- to its credit -- noted that the school board election was close, but did not note that the voter concern about the cost of the trial was considered to be a significant factor.

(5) It was not noted that the ruling on the scientific merits of ID was not necessary. Indeed, several articles in scholarly law journals criticized Jones for ruling on the scientific merits of ID.

(6) The show should not have criticized Michael Behe and others for declining to be interviewed. I would also criticize the movie "Expelled" for criticizing complaints from interviewees about not being informed about the purpose of the movie.

(7) The movie gave the Discovery Institute some free publicity, including publicity for the DI's book about the case, "Traipsing into Evolution"

(8) In the TV program, Judge Jones conceded that his Kitzmiller decision is not going to end the controversy. In his Kitzmiller opinion, he wrote, "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."

I originally thought that Judge Jones had no choice but to rule against the defendants but I now feel that a ruling in favor of the defendants could have been justified under the "endorsement test." Details are in this long comment on the Reasonable Kansans blog.
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Judgment Day is coming on Nov. 13

The Darwinist websites have a lot of ballyhoo about the upcoming PBS NOVA TV special about the Kitmiller v. Dover trial, Judgment Day: Intelligent Design on Trial. For the following and other reasons, I can't understand why the Darwinists don't want to just forget about the Dover trial:
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(1) Judge Jones copied the opinion's ID-as-science section virtually entirely from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs.

(2) Regardless of whether or not intelligent design is religion, Judge Jones showed extreme prejudice against the defendants by saying in a Dickinson College commencement speech that his decision was based on his notion that the Founders believed that organized religions are not "true" religions.

(3) Jones denied the intervention motion of the Foundation for Thought and Ethics, the publisher of the book "Of Pandas and People," then thoroughly trashed the book in his written opinion. FTE was prompt in moving to intervene as soon as subpoenas that it received made it clear that the plaintiffs would seek to make the book a major issue in the case.

(4) Several articles in scholarly law journals are critical of the Dover opinion, particularly Judge Jones' decision to rule on the scientific merits of intelligent design and irreducible complexity.

(5) The opinion has little or no precedential value because it is just the unreviewed opinion of a single federal district court judge.

These and other criticisms of Judge Jones and the Dover decision are discussed in posts here under post labels titled Judge Jones, Kitzmiller v. Dover, Expert opinions about Kitzmiller, and Monkey Girl. My very first post on this blog consists of criticisms of the Dover decision.

The case has gotten far more attention than it deserves.

The show's website also has the Dover science teachers' formal statement of refusal to read the board's ID statement to their classes. By so refusing, these teachers reneged on their prior agreement to use "Of Pandas and People" as a "reference text" (not a "companion text") in exchange for the board's acceptance of a heavily pro-Darwinist biology textbook. The website fails to mention that the teachers had made such an agreement.

I previously reported that the Discovery Institute's staff "stonewalled" requests to be interviewed for the program. The program's producer Paula Apsell said in answer to a question,

Q: Of the three expert witnesses who testified on behalf of Dover—Michael Behe, Scott Minich, and Steve Fuller—only Steve Fuller appears in the program. Why did you not interview the other two, who are among the country's leading proponents of ID?

Apsell: Michael Behe and Scott Minich, as well as other proponents of ID, were invited to participate in the program. . . . However, Michael Behe, Scott Minich, and other ID proponents affiliated with the Discovery Institute declined to be interviewed under the normal journalistic conditions that NOVA uses for all programs.

However, Phillip Johnson, co-founder and program advisor of the Discovery Institute's Center for Science and Culture, was interviewed for the program, and a transcript of the interview is here. The interview was fairly long, but Johnson's only statement that specifically criticized the Dover opinion is the following:

As for the judge and the opinion, the problem is that the judge didn't just decide the local case in front of him. He decided that he wanted to become a national figure by deciding the whole question of evolution and creation for the country in one opinion. So he wrote an opinion as big and broad as a starry sky, saying that the notion of intelligence, that one of these two hypotheses, was not eligible for consideration because it was religion and hence by definition not science. So any attempt in that direction was unconstitutional. He is being rewarded for that opinion with all the accolades that the mandarins of science have at their disposal.

The interview was fairly long, and so I have no idea whether the above statement is going to included in the show. The show is, after all, about the Dover trial and hence should include a lot of discussion about the legal issues in the case, but it is now evident that the show will not.

Go here to request email reminders of show times.
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John E. "true religion" Jones III the activist judge

I posted the following comment on the Volokh Conspiracy blog:

Stewart said,

Perhaps we're conflating two different activities with the term Judicial Activism -- going beyond and opposing the text of the law. Intentionalists may not feel the former is in fact Activism. Is this where the uncertainty over the meaning of the term comes in?

Exactly. Judge John E. Jones III asserted in his written opinion in the Kitzmiller v. Dover intelligent design case that he was not an activist judge, but he said in a Dickinson College commencement speech that his Kitzmiller decision was based on his notion that the Founders believed that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry." At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things," to secure their idea of religious freedom by barring any alliance between church and state."

So the Kitzmiller decision was obviously an "activist" decision because Jones crossed the line from neutrality towards religion -- the establishment clause's position -- into hostility towards religion. Regardless of whether or not intelligent design is religion, this hostility towards organized religions meant that he was prejudiced against the defendants. But because he thought that he was following the intentions of the Founders, he did not see himself as an activist judge.

The above comment has been posted for a day under a recent article on Volokh Conspiracy, a very popular blog averaging about 20,000 visits per day, yet so far no one has attempted to rebut it. No one has spoken up in defense of Judge Jones.

This post will now generate a torrent of abuse from the trolls on this blog.

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Attorney sanctioned for plagiarism where he showed more originality than Judge Jones showed in ID-as-science section of Kitzmiller v. Dover

The story is on the Volokh Conspiracy blog.

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Kitzmiller is most overrated decision in American history

Jay Benedict as
Judge John E. Jones III




I thought that the completely discredited Kitzmiller v. Dover decision would be just a footnote in history by now, but dyed-in-the-wool Darwinists are still kicking it around as though it means something. That decision was completely discredited when it was revealed that the opinion's ID-as-science section was ghostwritten by the ACLU. Even good unreviewed district court opinions have limited value as precedents, and this was not a good opinion.

The NOVA series on PBS TV will broadcast a reenactment of the Dover trial in November, and a book review by Kevin Padian about three books about the case was published in Nature magazine (subscription required or can be viewed at a subscribing library, or can be purchased as single article at exorbitant price of $30 for 2 pages). An NCSE article about the book review says,

Padian praises all three of the books as "entertaining and informative," giving the nod to Humes's Monkey Girl on account of its comprehensiveness; he also mentions a fourth book, by local reporter Laurie Lebo, to appear on the trial, which, he says, "promises even more lively details of this perfect storm of religious intolerance, First Amendment violation and the never-ending assault on American science education."

Wow -- a mere one-minute evolution-disclaimer statement was a "perfect storm of religious intolerance, First Amendment violation and the never-ending assault on American science education." I wonder what Padian would have said if those fundies on the Dover school board had decided to teach biblical creationism and only biblical creationism. LOL

An announcement of the NOVA program said,

Judgment Day: Intelligent Design on Trial (w.t.)
November 13, 2007 at 8 pm ET check local listings

One of the latest battles in the war over evolution took place in a tiny town in eastern Pennsylvania called Dover. In 2004, the local school board ordered science teachers to read a statement to their high school biology students. The statement suggested that there is an alternative to Darwin's theory of evolution called intelligent design, the idea that life is too complex to have evolved naturally and therefore had to have been designed by an intelligent agent. The science teachers refused to comply with the order, and alarmed parents filed a lawsuit in federal court accusing the school board of violating the separation of church and state. Suddenly, the small town of Dover was torn apart by controversy, pitting neighbor against neighbor. NOVA captures the emotional conflict in interviews with the townspeople, scientists and lawyers who participated in the historic six-week trial, Kitzmiller, et. al. v. Dover School District, et. al., which was closely watched by the world's media. With recreations based on court transcripts, NOVA presents the arguments by lawyers and expert witnesses in riveting detail and provides an eye-opening crash course on questions such as "What is evolution?" and "Does intelligent design qualify as science?" For years to come, the lessons from Dover will continue to have a profound impact on how science is viewed in our society and how to teach it the classroom.
Produced by NOVA WGBH Science Unit and Vulcan Productions, Inc. Additional production by The Big Table Film Company.

A website named TV Barn said of the NOVA program,

Meanwhile, another program that promises to make the fall interesting for PBS got its first preview. "Judgment Day: Intelligent Design on Trial," an episode of "Nova" scheduled to air Nov. 13, will recreate the widely covered 2004 trial over a school-board policy in Dover, Pa., that would have required science teachers to give evolution and God-made-this theories equal time.

Since cameras weren't allowed in the courtroom, "Nova" hired actors to re-enact portions of the transcript. First the O.J. civil trial, then Michael Jackson, now public television.

Unlike Ken Burns, who waited for trouble to come his way, Paula Apsell, the executive producer of "Nova," and the makers of "Judgment Day" seem to have sensed from the get-go they would take a lot of abuse from the intelligent design proponents. The producers said they went to great pains to represent the anti-evolution point of view, even as the Seattle organization that leads those efforts stonewalled "Nova's" requests for interviews.

"If you believe that intelligent design got a fair shake in the trial, then you'll certainly believe that it gets a fair shake in this program because this is a program about the trial," said Apsell.

Judge John E. Jones III (shown here portrayed by Jay Benedict), who was appointed by President Bush, ruled for the teachers who refused to teach intelligent design, and the voters turned out the anti-evolutionists in the next school board election.

Jones, appearing in L.A. to help promote the two-hour program, said he didn't cut people off at the trial, and let everyone have their say. Jones quoted the journalist Margaret Talbot, who wrote after the trial in the New Yorker, "It was a science class that everybody wished they'd been able to take when they were in school."

Posted by Aaron Barnhart on Thursday, July 12, 2007 at 09:48 AM in TV Barn (emphasis added)

As for the statement that the Discovery Institute "stonewalled" Nova's requests for interviews, that is the second time that they did that sort of thing -- Casey Luskin stonewalled Edward Humes' request for an interview for the book "Monkey Girl," which was about the Dover case. That is really stupid -- since these presentations of the case are going to be produced anyway, the DI might as well take advantage of the opportunity to present its views. I think they hate me at the Discovery Institute -- they have ignored my requests for help in my protest of Wikipedia's violation of its IRS 501(c)(3) nonprofit tax status by political campaigning. I think that the reasons why they hate me are that I am a holocaust revisionist and that I criticized Luskin for spurning Humes' request for an interview. I pointed out to the DI that they can protest Wikipedia's IRS violation without becoming associated with me.

There are misleading statements in the TV Barn article. Judge Jones did not "rule" for the teachers, because they were not plaintiffs. The teachers were not required to "teach" intelligent design but were only required to read aloud a one-minute statement that mentioned intelligent design. By refusing to read the statement, the teachers reneged on their agreement that the book "Of Pandas and People" could be used as a supplemental text. And the requirement that they read the statement was not unreasonable -- in Peloza v. Capistrano Board of Education, the 9th circuit federal court of appeals ruled that a teacher could be required to teach Darwinism even though it conflicted with his religious beliefs. However, I feel that the Dover teachers should have been given more say in the wording of the statement.

Also, the school board elections were close and voter concern about the cost of the lawsuit is believed to have been a major factor in the defeat of the incumbents.

Also, this is the first time I have seen Judge Jones -- who made last year's Time magazine list of the world's 100 most influential people -- in the news since November, even though I frequently Google him. Jones has become so obscure in just one year that he should be retroactively dumped from last year's Time list. Jones lied here when he said that he let everyone have their say. He denied the intervention petition of the publisher of the book "Of Pandas and People," then thoroughly trashed the book in the written opinion. The name of the book appears 75 times in the written opinion -- about half the appearances concern the book itself and about half concern the school board's decision to choose the book. And who cares if Jones was appointed by Dubya -- that is an irrelevant piece of trivia.

As for the statement "It was a science class that everybody wished they'd been able to take when they were in school," the irony of this statement is that this is the science class that people can't take in public schools because Kitzmiller and similar decisions have made criticisms of Darwinism generally taboo there.
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Question of the Day

Question for Judge Jones and other Darwinists:

Which is worse, teaching kids allegedly pseudoscientific criticisms of Darwinism or teaching them that arbitrary censorship is OK?

IMO it is a good question, if I do say so myself.

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"The Edge of Evolution": Coyne's reply to Behe's reply

Earlier I commented on Jerry Coyne's New Republic article criticizing Michael Behe's new book, "The Edge of Evolution." Behe's reply to Coyne's article is here and Coyne's reply to Behe's reply is here. These are my comments about Coyne's reply to Behe's reply:
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Behe said: Alluding to my participation in the Dover, Pennsylvania court case of 2005, early in the review Coyne writes "More damaging than the scientific criticisms of Behe's work was the review that he got in 2005 from Judge John E. Jones III" . . . . Frankly, it's astounding that a prominent academic evolutionary biologist like Coyne hides behind the judicial skirts of the former head of the Pennsylvania Liquor Control Board.

Coyne said: It's amusing to see Behe attacking me for ad hominem remarks, and then himself engaging in the same tactic by denigrating Judge Jones. He questions whether Jones really understood intelligent design at all, or simply adopted the plaintiff's claims in the Dover case.

The Discovery Institute showed that Jones "simply adopted the plaintiffs' claims" in writing the Dover opinion's ID-as-science section. Jones virtually copied that entire section from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs. The copying is evident from a side-by-side comparison of the two texts -- word-count comparison computer programs are not necessary and in fact only confuse the issue. There is no evidence that Jones did any independent thinking here. There is no evidence that he even read any post-trial brief other than the one he copied from. To me, the principal issue is not just the copying but is the one-sidedness of the copying. Furthermore, he showed great hostility towards organized religions by saying in a Dickinson College commencement speech that they are not "true" religions -- that alone is sufficient reason to declare a mistrial. I don't understand why Darwinists are willing to touch Judge Jones or the Dover decision with a ten-foot pole. Jones and the Dover decision have been thoroughly discredited. Anyway, it was completely out of line of Jones to rule on the scientific merits of intelligent design -- there is no constitutional separation of bad science and state.

Coyne said: It is important to draw the distinction between Behe and his fellow IDers, lest people mistake ID for a monolithic theory accepted by all its proponents. Behe is one of the few intelligent-design proponents who accepts common descent, macroevolution, natural selection, and an old earth.

That is an unfair stereotype of ID proponents.

Coyne said: Behe argues that the evolution of a single protein-protein binding site requires more than 2 simultaneous mutations -- more like 3-6 of them. He adduces no evidence for this major claim, nor does he give a single example of any case in which two or more binding sites must evolve simultaneously for an adaptation to arise. The reviews by Ken Miller in Nature and Sean Carroll in Science cite several examples of the gradual origin of adaptations via the step-by-step accumulation of point mutations in proteins.

In an adaptation requiring step-by-step mutations, there is no selective advantage for the preliminary steps and so a population possessing just an incomplete set of the required mutations might not be large enough to be likely to proceed to another step by a rare random mutation. Such step-by-step adaptations might be possible in a population of trillions of individuals with very short generational times, like bacteria, but are very unlikely in higher animals that have comparatively small populations and long generational times.

Coyne said: First, as both Dawkins and I point out, if random mutations can't build complexity, how can they possibly have been so effective in artificial selection of plants and animals?

That is begging the question.
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An additional response to Sandefur

This post is a follow-up to Sandefur wrong about Judge Jones' "judicial activism".

Sandefur also said,

Now, I’m putting aside the fact that the Defendants in Kitzmiller invited the court to determine whether ID is science — note, for instance, their pretrial memorandum, when they contended that “the evidence will show that IDT [ID theory] is a scientific argument, advanced by scientist [sic] relying on evidence and technical knowledge proper to their specialties,” and that ID’s reliance on supernatural explanations “does not place [it] beyond the bounds of ‘science.’ Quite the contrary, IDT’s refusal to rule out this possibility represents the essence of scientific inquiry.” (Def. Pretrial Mem. at 10-11.) This is a fact that those trying to smear Judge Jones really enjoy forgetting.

I am one of those "trying to smear Judge Jones" (and we are succeeding), and I certainly do not "really enjoy forgetting" this -- in fact, I enjoy discussing this. Jones was under no obligation to rule on the ID-as-science question just because both sides asked him to. There are many reasons why judges should try to avoid ruling on scientific questions whenever possible. Jones himself argued "both sides made me do it" in trying to dodge his accountability for deciding to rule on the ID-as-science question -- a Lutheran magazine article about an interview of Jones said,

Some critics thought Jones went too far in ruling on whether intelligent design is science or not. “Both sides asked me to render a decision on that precise issue,” he said.

BTW, trying to make more phony excuses, Jones also said,

“Had I not done so, there was every chance that this same issue would have arisen before another tribunal."

-- and --

“I didn’t think a school district somewhere else should be exposed to the costs and fees that the Dover School District ended up paying (more than $1 million) as a result of my ducking that issue.”

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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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