Proposed names for four categories of non-justiciability

I previously proposed two kinds of non-justiciability, "intrinsic" (or "inherent" or "absolute") non-justiciability and "prudential" non-justiciability. Now I would like to propose names for two more categories of non-justiciability, "legal" and "negatable" non-justiciability. In the post where I introduced the "intrinsic" and "prudential" categories, I described the characteristics of "legal" non-justiciability but just did not give this category a name. Except for "legal" non-justiciability, the concept of non-justiciability has been largely ignored in the law profession. The concept of non-justiciability deserves far more attention from the law profession than it has gotten. Here is a rundown of my proposed four types of non-justiciability:

(1) "Legal" non-justiciability: This is non-justiciability that is due solely to legal and constitutional considerations. This category includes the following issues: mootness, ripeness, political questions, advisory opinions, committed to agency discretion, Const. Art. III standing (i.e., injury-in-fact, injury traceable to challenged action, injury redressable by courts), state immunity under 11th amendment, "sovereign immunity" (an obsolescent concept), stare decisis, res judicata & collateral estoppel, barred by statute, not authorized by statute, court rules of standing, common law, and general custom. BTW, the rules for Art. III standing are IMO an overly narrow interpretation of the "cases" and "controversies" terms of Art. III -- anything can be a "controversy," including a hypothetical or moot question.
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(2) "Intrinsic" (or "inherent" or "absolute") non-justiciability -- this is non-justiciability that is due to unavoidable factors that are intrinsic in the question itself. This category includes the following factors: unanswerable, imponderable, unfathomable, unprovable, unfalsifiable, supernatural, occult, contentious, a matter of opinion, beyond the expertise of judges, insufficient evidence, too much evidence for the court to review, a need to rely on the opinions of biased experts, and -- in general -- arbitrary and subjective decisions are required. The classic example of an intrinsically non-justiciable question is the question of how many angels can dance on the head of a pin. IMO the following questions are also intrinsically non-justiciable: evolution theory, global warming theory, and string theory.

(3) "Prudential" non-justiciability -- this concerns questions where there are no "legal" or "intrinsic" barriers to decisions but where issuing a decision may be unwise because of potential harmful effects. The concept of "prudential" non-justiciability is similar to the idea that freedom of speech does not give anyone the right to shout "fire" in a crowded theatre. Prudential non-justiciability requires the weighing of different costs and benefits. Here is a purely hypothetical example of "prudential" non-justiciability: Suppose that a large majority of the public perceives all criticisms of Darwinism to be religious in nature, and hence banning a particular evolution disclaimer in public schools is justified under the establishment clause (I am ignoring the fact that even religious evolution disclaimers are arguably constitutional under the endorsement test). However, a decision to ban the disclaimer could adversely affect the reputations, careers, and research funding of scientists who are critical of Darwinism. Hence, banning the disclaimer would be the scientific equivalent of shouting "fire" in a crowded theatre.

(4) "Negatable" non-justiciability -- this is where an ostensibly non-justiciable question can be transformed into a justiciable question by means of a special argument, an unrequested decision, or by changing the issue. The classic example is King Solomon's "split the baby" decision. Solomon was faced with a non-justiciable question: deciding which of two claimants was the true mother of a baby (this was before DNA testing). He transformed a non-justiciable question into a justiciable one by proposing to divide the baby into two equal parts. Another example of negatable non-justiciability is the ACSI v. Stearns case, where fundy high schools claimed that the Univ. of California discriminated against them by approving non-Christian textbooks with special viewpoints while rejecting textbooks with Christian viewpoints. This case has many of the characteristics of "intrinsic" non-justiciability described above. However, the case becomes completely justiciable if the courts decide to discriminate against nobody by discriminating against everybody, i.e., ruling that no textbook with a special viewpoint may be used as a sole or main textbook, a ruling that was not suggested by any of the parties in the case. Yet another example of negatable non-justiciability was my federal-court lawsuit against the grossly unconstitutional California "smog impact fee" on incoming out-of-state vehicles. Federal court lawsuits against state taxes are normally barred by the Tax Injunction Act and/or the 11th Amendment. However, I argued that California lost its federal-court tax suit immunity by "leaving the sphere that was exclusively its own" (Parden v. Terminal Railway of the Alabama State Docks Dept.) by basing the fee entirely on the state's special status under federal emissions laws and regulations, and I was vindicated when an expert testified in state court that the fee required the approval of the US Environmental Protection Agency. BTW, as I have frequently pointed out, there were no oral hearings and no opinions at either the district court or appellate levels in my initial lawsuit against the smog impact fee, and that was a crime.

A given question can possess any combination of the above non-justiciabilities. A question can even possess all four kinds of non-justiciability: legal, intrinsic, prudential, and negatable. A question can be non-justiciable in one court but justiciable in another court.

Unfortunately, often a ruling of non-justiciability can have the same effect as a ruling on the merits. The issue of non-justiciability may need to be considered in combination with other factors. Often, the question of justiciability can be avoided entirely by deciding a case on narrow grounds -- e.g., Judge Jones could have based his Kitzmiller v. Dover decision entirely on the religious motivations of the Dover school board members and thus avoided the question of the justiciability of the evolution controversy. IMO these different principles of non-justiciability -- legal, intrinsic, prudential, and negatable -- should be officially recognized by the courts to help in applying these principles where appropriate. IMO the courts are more inclined to apply particular principles where those principles have officially recognized names.

IMO the courts should make more use of this concept of non-justiciability. Judges should have the humility to recognize that their opinions are just a few among many and that even where making a decision requires a lot of legal training, others legal professionals might honestly and fairly reach decisions different from theirs. Also, rulings of non-justiciability could be the basis of compromise decisions and out-of-court settlements.
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Justiciability of Scientific Questions III: inherent and prudential nonjusticiability

A comment I wrote in a comment thread on this blog gave me the idea for this post. This post is a follow-up to this post and this post.

I have not yet provided definitions of the terms "justiciable" and "justiciability." IMO a fairly good definition of justiciable is --

Of a claim or controversy, the condition of being suitable for adjudication by a particular court.

Some definitions use the term "capable" instead of "suitable," e.g. "capable of being decided by a court ."[1] and "referring to a matter which is capable of being decided by a court"[2]. However, I prefer the term "suitable" because anything is "capable" of being decided -- the questions of how many angels can dance on the head of a pin and whether bears shit in the woods are "capable" of being decided by a court. IMO the best definition would be, "constitutionally, legally, and practically suitable for adjudication by a particular court" (the word "particular" is important because different courts and court systems have different rules).

By way of review, I gave the following reasons why a scientific claim may be considered to be nonjusticiable:
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. . . the claim may be unanswerable, imponderable, unfathomable, unprovable, unfalsifiable, contentious, a matter of opinion, or 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.

Unfortunately, articles on justiciability generally do not give any reasons why some scientific questions should be considered to be non-justiciable and generally do not provide categories into which scientific questions might fall. For example, one article on justiciability has the following topics:

Article III case or controversy; advisory opinions; mootness and ripeness; standing; and judicial restraint (though this topic might be applicable, its discussion in this article is not).

And another article says,

To be heard by the federal courts cases must meet certain standards (they must be"justiciable)" (sic):
They must: Not seek an advisory opinion; Be brought by people who have standing; Not be moot; Be ripe for decision; Not be barred by the 11th Amendment; Not involve a political question.

This article about justiciability discusses the topics of standing, ripeness, mootness, advisory opinions, political questions, and Article III (which would include the "cases and controversies" issue).

Practically all of the reasons for nonjusticiability that are given by the above references are arbitrary and artificial reasons -- i.e., reasons that are based on the Constitution, laws, court rules, case law, custom, or whatever -- as opposed to reasons that are inherent in particular questions that are before the courts. In contrast, the preceding reasons for nonjusticiability of scientific questions are likely to be inherent in the questions themselves. So maybe there should be a new category of nonjusticiability -- to be called "inherent," "intrinsic," or "absolute" nonjusticiability -- meaning that the courts would have no basis for making a decision -- or that a decision would be improper -- even in the absence of artificial restraints on making a decision. It some ways this new category of nonjusticiability would be like the idea of insufficient evidence.

Also, I would like to introduce another nonjusticiability concept -- "prudential" nonjusticiability. In some court cases, it may be possible to make a rational decision about some question but it may be unwise to issue that decision because of potential bad consequences -- i.e., potential harm or the potential that the harm would outweigh the benefits. Of course, it is normal for court decisions to "harm" the losing litigants and others, so can "harm" be an argument against issuing decisions? Quite often the prospect of harm is used as an argument in court -- for example, it is commonly argued that a strict literal interpretation of the 2nd Amendment's right to keep and bear arms would result in harm to society. And a lot depends on the nature of the decision's harmful effects and the nature of whatever wrongs are redressed by the decision -- whether those things are intangible, financial, physical, reversible, irreversible, etc.. Jay Wexler's following comments about the Kitzmiller v. Dover decision involve prudential considerations:

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?

However, even just a ruling that "teaching ID endorses religion" can harm the careers and reputations of scientists and adversely affect scientific research.

In summary, I have proposed the following two new kinds of nonjusticiability:

(1) Inherent (or intrinsic or absolute) nonjusticiability. Some reasons in the area of scientific questions are: the claim may be unanswerable, imponderable, unfathomable, unprovable, unfalsifiable, contentious, a matter of opinion, or beyond the expertise of judges, or the science may be subject to change.

(2) Prudential nonjusticiability. Because a rational decision is possible, this is not true nonjusticiability, but it is like nonjusticiability in the sense that it is a reason to show judicial restraint by refraining from issuing a decision. Some reasons in the area of scientific questions are: decisions can affect the reputations and careers of scientists, affect funding for scientific research, and affect the direction of scientific research.
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Justiciability of Scientific Questions II: Mass. v. EPA

This post is a follow-up to -- you guessed it -- to Justiciability of Scientific Questions.

Until now, the courts have largely managed to duck the scientific issues in monkey trials (Judge Jones could have easily ducked the scientific issues but chose not to) but the day may come when the courts may have to squarely face those scientific issues.

The justiciability of scientific questions was raised in the recent case of Mass. et al. v EPA, which was about whether the EPA should regulate "greenhouses gases" -- including CO-2 -- as pollutants that contribute to global warming. The majority opinion in Mass. v. EPA said,
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To ensure the proper adversarial presentation, Lujan holds that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. . . .

. . . . . Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. See 68 Fed. Reg. 52930–52931. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.

So the majority opinion in Mass. v. EPA said that "a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent," and it is questionable that "mental displeasure" (Justice Scalia's words in another decision) at the teaching of "pseudoscientific" criticism of Darwinism in the public schools would qualify as a "concrete and particularized injury." And even if the court holds that mental displeasure is sufficiently "concrete and particularized," the court is likely to hold that such injury is not sufficiently severe to justify the extreme and undesirable action of ruling definitively on a contentious scientific issue. Global warming potentially could have disastrous physical consequences whereas issues of evolution education only concern a non-existent "right" to not be offended. Despite (1) those potentially disastrous physical consequences of global warming and (2) the central importance of global warming theory in Mass. v. EPA, the Supreme Court declined to make a definitive ruling on the merits of that theory but instead conceded that there is "uncertainty surrounding various features of climate change." Presumably the Supreme Court would be even more reluctant to decide contentious scientific issues in an evolution education case where there is no more at stake than a non-existent "right" to not be offended.

Wikipedia says of Mass. v. EPA,

This case has become notable because of a widespread perception that the truth or falsehood of theories of global warming will be decided by the courts, not unlike the Scopes Monkey Trial on evolution [actually, the Scopes trial did not actually decide the truth or falsehood of evolution]. While this could eventually occur in later proceedings, the questions before the U.S. Supreme Court here were much more narrow, and legal in nature.

One of several reasons that the EPA Administrator declined to regulate carbon dioxide is uncertainty about whether man-made carbon dioxide emissions causes global warming. This has attracted great attention to the case (See "Update" link below.) However, the Supreme Court only decided whether the Administrator's reason is a valid reason within the CAA [Clean Air Act]. The Supreme Court did not explicitly decide if it is true or untrue that man-made carbon dioxide emission causes global warming, although high-profile comments by Justices during oral argument are likely to affect the public debate.

The Petitioners argued that scientific uncertainty is not a valid basis for the EPA Administrator to decline to regulate. The question before the High Court was not whether the causation is true or untrue, but whether it is a valid reason for the Administrator to not regulate a pollutant.

Also, I have found that the term "nonjusticiable question" is often associated with the term "political question." One legal dictionary gives the following definition of "political question":

political question:

n. the determination by a court (particularly the Supreme Court) that an issue raised about the conduct of public business is a "political" issue to be determined by the legislature (including Congress) or the executive branch and not by the courts. Since 1960 the U.S. Supreme Court has been willing to look at some questions previously considered "political," such as "one-man-one-vote," as constitutional issues.

However, IMO the two terms have different meanings and should not be confused. IMO a political question is a kind of nonjusticiable question.
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Case-law history of monkey trials

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Introduction

The Discovery Institute's Casey Luskin has written an excellent law-journal article about the case-law history of court cases concerning evolution education. The article is described here and the article itself -- in PDF format -- is here. Casey reviews 21 cases -- some are federal court cases and some are state court cases. Luskin's law-journal article shows that the case-law history of "monkey trials" is far more complex than the oversimplified, ignorant and cocky "you've always lost" and "you lost -- get over it" views of the Darwinists. Luakin shows that the legal position of Darwin critics is much stronger than most people realize -- he shows that the judicial opinions in these cases have many important findings that are in favor of Darwin critics even though the overall decisions were against the Darwin critics. One big fault of the paper is that it fails to show how close Freiler v. Tangipahoa Parish and Selman v. Cobb County came to being reversed on appeal. Also, IMO Luskin's paper should have included Comer v. Texas Education Agency, where a federal district-court judge upheld the right of a public education agency to maintain a policy of neutrality regarding evolution-education issues that are subjects of upcoming public hearings. [link].

Attorney Timothy Sandefur wrote a blog post that was highly critical of Luskin's law-journal article, but I think that Sandefur misses the point that the purpose of Luskin's article is not just advocacy but is also to present an objective overview of the case-law history.

Here I will make some additions and corrections to Luskin's law-review article. Unfortunately, URL links to some of my original references no longer work.
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Overview

The case law on evolution education is getting old. The last Supreme Court decision on evolution education, Edwards v. Aguillard (1987), was over twenty years ago, and the last definitive appeals court decision on evolution education, Freiler v. Tangipahoa Parish (2000), was nearly ten years ago (I am not counting Selman v. Cobb County because that decision was a vacation and remand), and the last federal district court decision, Kitzmiller v. Dover (2005), was 3½ years ago. As for precedential value, Supreme Court decisions of course have the most, federal appeals court decisions have a fair amount, and federal district court decisions have little or none. Why are there no current or very recent cases? Two reasons are: (1) curriculum-setting government bodies have learned how to "lawsuit-proof" criticisms of evolution, and (2) fear of the costs of attorney fee awards to the plaintiffs; because of incredibly tight-fisted taxpayers, this is a problem even where the potential financial burden to the government is negligible. An awful lot has changed since these cases were decided and it is high time to revisit them. It's is really a shame that there are no new cases, because new cases would give an opportunity to apply the many things that have been learned from previous cases.

Kitzmiller v. Dover (2005)

This blog has more posts directly and indirectly related to this case than for any other subject, as is evident from the post label list in the homepage's sidebar (post labels with Kitizmiller and Judge Jones). Luskin is of course highly critical of the Kitzmiller decision. I would like to make here some additions and corrections to what Luskin said about the case.

Casey classified Kitzmiller in the category "cases rejecting the teaching of alternatives evolution," but IMO Kitzmiller belongs in his category "cases rejecting disclaimers regarding the teaching of evolution." The Dover school board's Intelligent Design policy was just a one-minute oral statement -- no alternatives to evolution were actually taught, and the book referred to in the statement, "Of Pandas and People," was not required reading.

IMO the Kitzmiller decision is badly tainted because it is likely that Judge "Jackass" Jones showed a lack of restraint because he knew that his decision was not likely to be appealed because of the changeover in the school board membership. If an appeal had been anticipated, I doubt, for example, that Judge Jones would have copied the opinion's ID-as-science section nearly verbatim 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 often-heard claim that the defendants' arguments were so bad that there was no need to address them does not hold water -- if those arguments were really bad, all the more reason to attack them.

Judge "Jackass" Jones has charged that critics of his Dover decision have no respect for "the rule of law" and "judicial independence."[link] Judge Jones dodged the question of whether ID encourages critical thinking, which was a crucial question in determining whether the Dover ID policy satisfies the Lemon test's requirement of a "secular purpose that is not a sham." [link] He called judges' work "workmanlike," trying to give the false impression that any other judge would have written the same opinion that he did [link] [link] . Judge Jones showed extreme prejudice against intelligent design and the Dover defendants -- regardless of whether or not ID is a religious concept -- by saying in a 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:

. . . 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.

Jones said that he got the above "true religion" idea from his undergraduate days at Dickinson College, but the above statement is actually a quote mine that he plagiarized from a book that was published long after he graduated. [link]

Freiler v. Tangipahoa Parish (2000)

This little-known case is especially noteworthy because of how close it came to being overturned by an en banc (full court) appeals court and/or the US Supreme Court. [link]

Luskin wrongly stated that six 5th Circuit federal appeals court judges dissented from the vote to deny an en banc rehearing of Freiler -- the number given in the dissenters'opinion (page 2) is seven. It is hard to tell how many of the judges voted against an en banc rehearing -- the 5th Circuit had 17 authorized seats in 2000 but at least one and maybe tow or three of the seats were vacant [link] when the vote was taken. In any event, the vote was very close.

Luskin failed to note that the Supreme Court's three votes in favor of granting certiorari (Scalia, Thomas, and Chief Justice Rehnquist) was just one vote short of the four votes normally required for a grant of certiorari. Luskin also failed to note that Scalia's long opinion (joined by Thomas and Rehnquist) dissenting from the denial of certiorari was unusual -- denials of certiorrari are usually made without comment (the frequency of dissents from denials of certiorari is discussed below). In his dissent, Scalia minced no words -- in addition to Luskin's quotations of Scalia's dissent, Scalia also said,

I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all. Even assuming, however, that the Fifth Circuit correctly chose to apply the Lemon test, I believe the manner of its application so erroneous as independently to merit the granting of certiorari, if not summary reversal. (emphasis added)

BTW, it is widely known that Supreme Court's denials of certiorari are normally made without comment, but the frequency of dissents from certiorari is generally not known -- however, I managed to find some statistics on that frequency, though the statistics are old. There are three possible outcomes for dissents from certiorari: (1) the dissenting opinion is first circulating among the justices and if it succeeds in causing a reversal of the denial, the dissent is of course not published; (2) the dissent fails to cause a reversal, and a decision is made to publish the dissent (Scalia's dissent here is an example of this type), and (3) the dissent fails, and a decision is made to withdraw the dissent. Here are the statistics for the period 1971-1981: total number of dissents, 385; dissent fails and is published, 273 (70.9%); dissent fails and is withdrawn, 29 (7.5%); dissent succeeds, 83 (21.6%). [link -- see page 31] That works out to an average of 27.3 published dissents from cert denial per year for the period 1971-1981, or an average of about three per year per justice. However, some of the dissenting opinions may be trivial -- for example, I have seen just a statement from a justice that he is opposed to the death penalty. Dissents from denials of certiorari are discussed in here, for those that are interested.

Selman v. Cobb County(2005/2006)

This blog has a whole post-label group of articles for Selman [link]. Post labels are listed in the sidebar of the homepage.

Casey fails to mention that before vacating and remanding the decision because of missing evidence, the appeals court panel indicated that it was leaning towards reversal even if the missing evidence were found [link] Appeals Judge Ed Carnes said that the three-sentence disclaimer seemed to him to be "literally accurate" and told the attorney representing the opponents of the stickers, "Your difficulty is that you've got to take something that actually is reflective of the content of this textbook you like so much, and say it violates the First Amendment." [link] Judge Frank Hull questioned how the district-court judge could have found the sticker's language misleading to biology students when there was no evidence to support that view.

Luskin's paper says,

Like Hurst [Hurst v. Newman], this case represents a school district being forced to abandon what it believed was a constitutional policy over threats of an ongoing and expensive lawsuit

Casey is just plain wrong here. The Cobb County school district is big and rich, unlike the El Tejon school district of Hurst and the Dover Area school district of Kitzmiller, which are small and poor. Cobb County was getting free legal representation in its appeal and received offers of more free legal assistance. The Cobb County school district's actual and potential legal expenses were much lower than the ~$1 million paid by the Dover Area school district. [link] Furthermore, before vacating and remanding the decision because of missing evidence, the appeals court panel indicated in an oral hearing that it was leaning towards reversal even if the missing evidence were found. The Cobb County school board simply took a dive.

Attorney Edward Sisson's open letter about the Selman decision is also good. The letter's "political insider/outsider" idea appears to be based on Justice O'Connor's "endorsement test" as originally described in her concurring opinion in Lynch v. Donnelly:

The . . . . 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.

Comer v. Texas Education Agency (2008)

As I said in the introduction to this post, IMO Luskin's paper should have included Comer v. Texas Education Agency, where a federal district-court judge upheld the right of a public education agency to maintain a policy of neutrality regarding evolution-education issues that are subjects of upcoming public hearings. [link]. Apparently the decision was not appealed. Unfortunately, this case does not fit into any of the three categories devised by Luskin: (1) Cases upholding the right to teach evolution; (2) Cases rejecting the teaching of alternatives to evolution; and (3) Cases rejecting disclaimers regarding the teaching of evolution. This blog has a post-label group of articles about Chris Comer (post labels are listed in the sidebar of the homepage).

Justiciability of scientific questions concerning evolution

I am not aware of any judicial opinion that has addressed the issue of the justiciability of scientific questions concerning evolution, but I nonetheless consider this to be a very important issue. IMO the courts should declare these questions to be non-justiciable -- many of these questions are like the question of how many angels can dance on the head of a pin. 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). Also, appellate courts are unsuited for reviewing days or weeks of scientific testimony -- appellate courts are mainly suited for deciding questions about points of law. This blog has several articles about justiciability.
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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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Proposed principle of "judicial objectivism": Judges should try to avoid basing judicial opinions on personal opinions

JUDGE "JACKASS" JONES, POSTER CHILD OF JUDICIAL ACTIVISM

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My proposed principle of "judicial objectivism" is that judges should try to avoid basing decisions on their own biased personal opinions and should try to use reasoning that is so airtight that no reasonable person could find fault with it. I call it "judicial objectivism" to distinguish it from the general philosophy of "objectivism" and the "objectivism" of Ayn Rand in particular, though my "judicial objectivism" is related to those other philosophies' idea that there are truths or realities that are independent of individual perceptions. IMO the principle of "judicial independence" is actually harmful when it encourages -- as it did in the case of Judge "Jackass" Jones -- judges to base their decisions on their own biased personal opinions. Judges should have the humility to recognize that their personal opinions, even if valid, might be in disagreement with one or more other valid opinions. This proposed principle of "judicial objectivism" -- like my proposed principles of "non-justiciability" and the "compelling reason" test for non-literal interpretations of the Constitution -- is aimed at eliminating or reducing the courts' arbitrariness, capriciousness, "activism," and "legislating from the bench."
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"Opinion," like "theory," is a term that has a technical definition that differs from the everyday, colloquial definition. The technical definition of "opinion" in the law is, according to my Webster's New World Dictionary, Third Collegiate Edition, "the formal statement by a judge, court referee, etc. of the law bearing on a case." One of this dictionary's colloquial definitions is: "(1) a belief not based on absolute certainty or positive knowledge but on what seems true, valid, or probable to one's own mind, judgment." In comparing "opinion" to several synonyms, the dictionary also says, "opinion applies to a conclusion or judgment which, while it remains open to dispute, seems true or probable to one's own mind . . ." My "judicial objectivism" idea is aimed at eliminating or reducing the openness to dispute. As for "theory," maybe the Darwinists should hire process servers to serve process on governments in lawsuits charging that the government officially uses the term "evolution theory" even though the technical meaning of "theory" is different from the colloquial or everyday meaning.

The statement "ID cannot uncouple itself from its creationist, and thus religious, antecedents," in the conclusion section of Judge Jones' Kitzmiller v. Dover opinion, is a good example of a statement that violates this principle of judicial objectivism, because reasonable people can easily find fault with that statement. For example, many reasonable people believe that ID "uncouples" itself from creationism by strictly using only scientific arguments and avoiding religious sources. For example, intelligent design can be defined as the scientific study of the extent to which some living things appear to be designed rather than appearing to be a product of unintelligent causes, or can be defined as a scientific determination of the probability that living things could have arisen solely from natural genetic variation and natural selection.

IMO a good example of a ruling that satisfies "judicial objectivism" is the ruling in Romer v. Evans that particular groups of people cannot be barred from seeking the aid of the government, which Colorado's Proposition 2 did in effect (Proposition 2 prohibited all laws and regulations aimed at protecting homosexuals from discrimination). The majority opinion said,

Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

There was a lot of moaning and groaning that the courts, by striking down a proposition approved by the voters, had overturned the "will of the people," but IMO there is no reasonable argument against the above reasoning. The only counterargument that dissenting justice Antonin Scalia could raise was the feeble argument that this reasoning appears (in his opinion) to be new:

The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of.

Well, Antonin, there is a first time for everything, and the next time the principle is raised you certainly won't be able to argue that "[t]he world has never heard of such a principle."

I find other arguments of the majority to be unpersuasive -- for example, the majority said that Proposition 2 shows animus against homosexuals. But a lot of legitimate government laws and regulations arguably show animus -- for example, laws against gay marriage arguably show animus against homosexuals.
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ACSI v. Stearns should be declared non-justiciable

This post is derived from a comment that I posted on the Questionable Authority blog.

I reported in the preceding post that the district court judge ruled against the plaintiffs in ACSI v. Stearns.

The concept of non-justiciability is discussed in articles on this blog[1] [2] [3].

I was going to further investigate the details of ACSI v. Stearns, but I now feel that further investigation would be pointless because I feel that trying to resolve this kind of dispute in the courts is not practical or realistic. It is turning the courts into textbook accreditation agencies. For the following reasons, courts are ill-suited for this function:

(1) Fully evaluating textbooks is very time consuming, and the courts must rely to a great extent on the opinions of biased evaluators representing the litigants.

(2) The judges are not experts in the subjects of the textbooks being evaluated.

(3) The evaluations require arbitrary and subjective decisions.
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IMO the main question in these textbook evaluations is whether the books present the core or standard material adequately and just add a religious viewpoint. The plaintiffs charged that UC previously accredited textbooks that have non-Christian special viewpoints (and that therefore might not present the core or standard material adequately), but the judge in this case did not respond to that charge.

The ACSI v. Stearns opinion shows the potential size of the burden on the courts. The opinion says that UC rejected more than 175 courses proposed by ACSI schools (see page 8 of the opinion) during the relevant time period (though some of those rejections might have been for the same reason). The plaintiffs submitted untimely expert witness reports on 38 rejected courses (see pages 8-9 of the opinion) and timely expert witness reports on 5 rejected courses (see pages 12-18 of the opinion). And ACSI v. Stearns cannot possibly be conclusive because each challenge to a course rejection must be judged individually.

IMO the only easy way to assure that the core or standard material is included in the course materials of accredited courses is to require the fundy schools to use standard, non-Christian texts and use supplemental materials to add the Christian viewpoints. Fundy textbooks should not be allowed except as supplemental textbooks. The same goes for all other textbooks that present a narrow viewpoint. IMO the courts should declare ACSI v. Stearns to be non-justiciable and require that UC deny accreditation to all high-school courses that use a narrowly focused textbook as the sole or main textbook.

Why do the fundies insist on having Christian this and Christian that? I think that one of the reasons for that is the extreme hostility that the courts have shown towards religion -- or anything even suggesting religion -- in the public square. Examples: Three court decisions -- Kitzmiller v. Dover, Selman v. Cobb County, and Freiler v. Tangipahoa Parish -- ruled against evolution disclaimers in public school science classes, though the disclaimers were just sops to the fundies (and other Darwin doubters) because only Darwinism is actually taught. Because of the mere threat of a lawsuit, big bad Los Angeles County caved in to demands for removal of a tiny cross from the county seal.
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9th Circuit upholds UC's rejection of Christian high-school textbooks (ACSI v. Stearns)

The 9th Circuit federal appeals court has upheld the district court decision favoring the University of California in ACSI v. Stearns, a lawsuit which challenged UC's denial of accreditation to some Christian high-school courses which used Christianity-oriented textbooks which were rejected by UC. This blog has a large post-label group of articles about the case. The appeals court's decision is discussed on the Religion Clause blog, the NCSE website, and Ed Brayton's Dispatches from the Culture Wars blog.

I am not surprised by the appeals court's decision.

The NCSE article says,

Of particular interest in the preparation from the appeal was the California Council of Science and Technology's amicus curiae brief. Coauthored by attorneys from Pepper Hamilton LLP who were part of the legal team representing the plaintiffs in Kitzmiller v. Dover, the 2005 case over "intelligent design" creationism, the brief argued, "Students educated with these textbooks will not be adequately prepared for science courses."

However, an ACSI report of a meeting with UC personnel says,

When asked whether poor college performance by students from religious schools prompted the rejection of the textbooks, UC representatives responded negatively. They also acknowledged that UC did not have any objective evidence that students from religious schools are deficient in science when they arrive for their freshman year of college .....

IMO one of the main reasons why the fundy students are not unprepared to study college science is that most science does not conflict with the bible.

The California Council of Science and Technology's amicus brief is here.

The Darwinists, in their exultation over the decision, probably failed to notice that the opinion says at the top, "not for publication." Under the new FRAP (Federal Rules of Appellate Procedure) Rule 32.1, federal courts cannot prohibit or restrict citation of unpublished opinions issued after Jan. 1, 2007 (the 9th Circuit still restricts citation of unpublished opinions issued before that date), but unpublished opinions carry a lot less precedential weight than published opinions. Though the opinion is not going to be published, tremendous amounts of time and effort were spent on this case -- there were many plaintiffs, several expert witnesses, long court hearings, and a tremendous amount of evidence submitted (ACSI claimed that UC submitted 350,000 pages of documents). Here is a list of some of the documents that were filed in the case.

9th Circuit Rule 36-3 says,

Circuit Rule 36-3. Citation of Unpublished Dispositions or Orders

(a) Not Precedent. Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.

(b) Citation of Unpublished Dispositions and Orders Issued on or after January 1, 2007. Unpublished dispositions and orders of this court issued on or after January 1, 2007 may be cited to the courts of this circuit in accordance with FRAP 32.1.

(c) Citation of Unpublished Dispositions and Orders Issued before January 1, 2007. Unpublished dispositions and orders of this Court issued before January 1, 2007 may not be cited to the courts of this circuit, except in the following circumstances.

(i) They may be cited to this Court or to or by any other court in this circuit when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.

(ii) They may be cited to this Court or by any other courts in this circuit for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys' fees, or the existence of a related case.

(iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders.

FRAP Rule 32.1 says,

FRAP 32.1. Citing Judicial Dispositions

(a) Citation Permitted.

A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been;

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.

Publication of the opinion can be requested under the following circuit rule, but the judges have probably already considered and rejected the idea of publication:

Circuit Rule 36-4. Request for Publication

Publication of any unpublished disposition may be requested by letter addressed to the Clerk, stating concisely the reasons for publication. Such a request will not be entertained unless received within 60 days of the issuance of this Court’s disposition. A copy of the request for publication must be served on the parties to the case. The parties will have 14 days from the date of service to notify the Court of any objections they may have to the publication of the disposition. If such a request is granted, the unpublished disposition will be redesignated an opinion. (Rev. 12/1/09)

In contrast, both the appeals court and district court opinions were published in Caldwell v. Caldwell (which also has a post-label group of articles on this blog), as noted in that case's petition for certiorari, even though Caldwell v. Caldwell was a much smaller case.

Here is a summary of my views about the case:

(1) IMO the Bob Jones University biology text (a 2-volume set) went too far when it said in the introduction, "If the conclusions contradict the Word of God, the conclusions are wrong, no matter how many scientific facts may appear to back them." IMO that statement discourages critical thinking and smacks of brainwashing, and I cannot condone that statement when one of my main reasons for supporting the teaching of scientific and pseudoscientific criticisms of evolution is to encourage critical thinking. IMO the statement is just as bad as the new Florida science standards' statement that "evolution is the fundamental concept underlying all of biology."

(2) For the following reasons, our courts should not be turned into textbook accreditation agencies: (i) judges often lack the specialized knowledge required to evaluate textbooks; (ii) questions of justiciability are raised; and (iii) textbook evaluation can be very time-consuming, taking time away from other cases.

(3) To me, the best way to avoid "viewpoint discrimination" is to require that specific viewpoints be presented only in supplemental materials and not be presented in main textbooks.

(4) The claim that denial of course accreditation meant that the students had to be in the top 2-4% of high school grads -- instead of the 12½-15% normally required for UC admission -- was false, because the students could have gotten credit for the courses just by getting satisfactory scores in subject or advanced-placement tests.

(5) The education of some Christian-school students is too narrowly focused on Christianity -- they study Christian-this and Christian-that. They are like the ultra-orthodox yeshiva students of Israel -- they are not being broadly educated for living in the real world.
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Caldwell v. Caldwell is a travesty, Part 2

For a larger image, click on above picture

The homepage of "Understanding Evolution for Teachers." The plaintiff in Caldwell v. Caldwell could not be sure which topics to avoid on this homepage in order to avoid seeing an offensive religious message -- for example, such a message is likely to appear under the topic labels "misconceptions," "overcoming roadblocks," "nature of science," and even "teaching evolution."

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Part 1 is here.

The appeals court opinion in Caldwell v. Caldwell says (pages 9-10),

In Buono [Buono v. Norton, 371 F.3d 543 (9th Cir. 2004)] , the plaintiff, a retired employee of the Park Service who had been Assistant Superintendent of the Mojave National Preserve and regularly visited it, complained that a Latin cross atop Sunrise Rock violated the Establishment Clause and was offensive to him. He regarded the cross as offensive because it was on federal property — not because of the cross as such — and the district court found that Buono would tend to avoid Sunrise Rock as long as the cross remained standing. We held that Valley Forge “drew a distinction between abstract grievances and personal injuries, not ideological and religious beliefs,” 371 F.3d at 547, and that Buono’s inhibition from freely using the Preserve sufficed as injury in fact and constituted “personal injury suffered . . . as a consequence of the alleged constitutional error.” Id. (quoting Valley Forge, 454 U.S. at 485) [Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982)] . (boldness added)

What? "Drew a distinction between abstract grievances and personal injuries, not ideological and religious beliefs"? What in the hell is that supposed to mean? That is really getting arbitrary, capricious, nitpicking, and hairsplitting -- it is all basically just a "right" to not be offended.

The Caldwell opinion continues (page 10),

Since Buono, we have also considered standing to pursue an Establishment Clause challenge in the context of a government seal. In Vasquez v. Los Angeles County . . . .

The ridiculous Vasquez v. Los Angeles County case is discussed in Part 1.

Caldwell says (pages 10-11),

Caldwell’s situation does not fit neatly into a place already staked out along the continuum of Establishment Clause standing. She is neither so removed from the conduct challenged as the plaintiffs were in Valley Forge, nor so close as the plaintiff was in Vasquez. Her connection to the writing on the website is more tenuous than Buono’s to the Preserve where the offending symbol was a Latin cross that was permanently installed on a top of a hill, while her complaint is more abstract and her contact less forced than Vasquez’s.

The Caldwell v. Caldwell decision does not adequately distinguish between Jeanne Caldwell's situation and Buono's situation. Buono always knew where the cross was and he could avoid looking at it. However, Caldwell could not be sure which topics to avoid on the "Understanding Evolution for Teachers" homepage -- shown above -- in order to avoid seeing an offensive religious message; for example, such a message is likely to appear under the topic labels "misconceptions," "overcoming roadblocks," "nature of science," and even "teaching evolution." I will show below that Caldwell was also not adequately distinguished from Vasquez.

Caldwell says (page 11),

It is instructive to compare School District of Abington v. Schempp, 374 U.S. 203 (1963), and Doremus v. Board of Education, 342 U.S. 429 (1952), as the Supreme Court did in Valley Forge. 454 U.S. at 486 n.22. Schempp is the source of the rule which informed our decision in the seal case, that unwelcome direct contact with an allegedly offensive religious or anti-religious symbol, suffices for Article III standing.(boldness added)

See Vasquez, 487 F.3d at 1251-53. In Schempp, children enrolled in public school together with their parents objected to a Bible reading in the classroom that was mandated by state law. The Court found the interests asserted sufficient for standing because these plaintiffs were “directly affected by the laws and practices against which their complaints are directed.” Schempp, 374 U.S. at 224 n.9. This contrasts with Doremus, in which the same issues were raised but in which parents lost standing to sue when their children were graduated. 342 U.S. at 432-33 . . . . (boldness added)

As the Court explained in Valley Forge, “[t]he plaintiffs in Schempp had standing, not because their complaint rested on the Establishment Clause — for as Doremus demonstrated, that is insufficient — but because impressionable schoolchildren were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them.” 454 U.S. at 486 n.22. (boldness added)

How does Doremus show that resting a complaint on the Establishment Clause is insufficient? According to the above statements in Caldwell, Doremus raised the same issues as Schempp but the parents in Doremus "lost standing to sue when their children were graduated." So according to the above statements in Caldwell, all Doremus really showed was that plaintiffs can be declared to lose standing when challenged actions no longer directly affect them. But what does that have to do with Caldwell, where there is no claim that the plaintiff is no longer affected by the challenged action? Anyway, Jeanne Caldwell -- like Vasquez -- complained of "unwelcome direct contact with an allegedly offensive religious or anti-religious symbol" or message, and if anything, her complaint was less "abstract" than Vasquez's complaint about the county seal because the seal did not contain any offensive religious or anti-religious symbols or messages but was just a reminder that a Christian cross had been removed when the seal was redesigned.

Caldwell says (page 12) --

. . . .Caldwell’s offense is no more than an “abstract objection” to how the University’s website presents the subject . . . That she is the parent of school-age children makes her position no less remote, for her connection to the University of California website is not similar to the relationship in Schempp between parents whose children are directly exposed to unwelcome religious exercises in the classroom and the school district. Accordingly, we believe there is too slight a connection between Caldwell’s generalized grievance, and the government conduct about which she complains, to sustain her standing to proceed.

So was that the deciding factor in the decision to deny standing -- the fact that the contact with the offending material was not "forced"? Isn't that sort of arbitrary?

BTW, Justice Antonin Scalia's concurring opinion in Hein v. Freedom from Religion Foundation criticizes flaws and inconsistencies in some of the same decisions cited in Caldwell: Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982), Doremus v. Board of Education, 342 U.S. 429 (1952), and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Also, something really bothered me about the testimony of the National Science Foundation's attorney at the oral hearing (click on "statements by one judge during oral arguments" on this webpage -- the offending statement starts at 35:38 in the audio recording). He argued -- I think correctly -- that the NSF had no control over the content of UC-Berkeley's website and therefore was not a proper defendant in the case (in contrast, the US Environmental Protection Agency was a proper defendant in my lawsuit against California's smog impact fee because -- as an expert testified in state court -- the fee required the approval of the EPA). However, he added that the NSF's briefs said that the district court correctly dismissed the case, and IMO that was uncalled-for -- if the NSF is not a proper party to the case and is not affected by the case in any way, then the NSF should not be stating an opinion as to whether the case was correctly dismissed or not. Some attorneys have no sense of propriety.

Also, I want to say that IMO the rules of standing to sue should just be thrown out the window in constitutional cases. The Constitution is supposed to be the supreme law of the land, and following a rule of standing at the expense of the Constitution is straining at a gnat and swallowing a camel. Unfortunately, the tendency in the courts -- including constitutional cases -- has been to make the rules of standing more stringent rather than less stringent, because making these rules less stringent would lead to charges of violating precedent and charges that plaintiffs in the past were unfairly denied standing. Thus, the courts are riding a tiger and are afraid to dismount. Also, a desire to duck a lawsuit's merits gives judges an incentive to deny standing (judges desiring to duck issues should make more use of the principle of non-justiciability). The courts have been painting themselves into a corner by making the rules of standing more and more restrictive. One most choose between supporting the Constitution and supporting the rules of standing -- no one can serve two masters. Probably one of the worst examples of a court-created rule of standing is the arbitrary rule from Hein v. Freedom from Religion Foundation saying that taxpayers in establishment clause cases have standing where Congressional allocations of tax money are involved but not where executive-branch allocations of tax money are involved. IMO the notion that stringent rules of standing are necessary to prevent the courts from being flooded with lawsuits does not hold water -- the time, trouble, and expense of filing lawsuits tend to discourage frivolous lawsuits, and frivolous lawsuits that are filed can be quickly disposed of in rulings on the merits. And -- hypocritically -- Congress and the courts have actually been encouraging a proliferation of constitutional lawsuits by allowing unlimited attorney fee awards at full market rates even when the legal representation is pro bono and/or by non-profit organizations (see this article about Blum v. Stenson). Also, the vigilantist "citizen suit" provisions of environmental laws give all citizens standing to sue even when there are no allegations of injury to anyone or anything, let alone the plaintiffs.

If judges are really determined to deny standing, they can almost always find an excuse for doing so.

Judge to plaintiff: "I know that you have lost a fortune and spent years in pursuing this case, but I am still wondering if you are really interested in this case. I don't mean just a little interested -- I mean really, really interested. "

A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested.
-- Justice Harlan, dissenting opinion in Flast v. Cohen, 392 U.S. 83, 130

BTW, Justice Harlan also made the following statement about "taxpayer standing" (the issue of taxpayer standing was a factor in the district court's -- but not the appeals court's -- denial of standing in this case) --

The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues. . (citation omitted) . . . The interests he represents, and the rights he espouses, are, as they are in all public actions, those held in common by all citizens. To describe those rights and interests as personal, and to intimate that they are in some unspecified fashion to be differentiated from those of the general public, reduces constitutional standing to a word game played by secret rules. -- Justice Harlan, dissenting opinion in Flast v. Cohen, 392 U.S. 83, 128-129

Rules of standing that are based on bad precedents are reminiscent of the following observation by Jonathan Swift:

It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

-- and also the following definition of "precedent" in Ambrose Bierce's "Devil's Dictionary":

In Law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a Judge may choose to give it, thereby greatly simplifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament.

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