Posted by Timothy Sandefur on December 24, 2005 01:35 AM

John West as a post criticizing Judge Jones’ Kitzmiller decision for being “activist.” I’ve already explained why his arguments are baseless, and so has Pim van Meurs. But I do have a few more comments.

First, West complains that Jones went “far[ther] [than] necessary” in his decision, which he says is proof of “activism.” It’s true that courts avoid unnecessary questions when possible, and when they make decisions on matters that are not logically necessary to the outcome of the case, those decisions are “dicta,” and are therefore not controlling. Best Life Assurance Co. v.Comm’r, 281 F.3d 828, 834 (9th Cir. 2002). Courts will avoid big questions–such as constitutional issues–if they can decide the case on a narrower issue instead. But Jones’ discussion in Kitzmiller of whether ID is science is not dicta.

Of course, as van Meurs points out, the school board and their amici argued that ID is science, and therefore that it did not violate the Establishment Clause. They contended that “[s]ecular purposes for teaching about the theory of intelligent design include informing scholars about competing scientific theories of biological origins, helping students to better understand the contrasting theory of neo-Darwinism...and enhancing critical thinking skills.” Brief Amicus Curiae of Discovery Institute at 6. The Institute characterized the Plaintiffs’ argument as “false[ly] assert[ing] that the theory of intelligent design necessarily has the primary effect of advancing religion.” Id. It was legitimate for Judge Jones to address this theory, and to reject it because ID is not science, and therefore cannot serve these asserted secular purposes.

Also, it is at least arguable that, even under the Lemon test, it is not unconstitutional for a government actor to adopt a perfectly secular act for religious reasons. For example, if the government were to build and erect a fire department, but did so on the grounds that God commanded them to do it, this would arguably not constitute an establishment of religion. I’m not saying one way or the other–the point is that the issue is a contentious one. It was therefore proper for the judge to address it.

Next, West complains about Judge Jones’ statement that “ no other tribunal in the United States is in a better position than are we to traipse into this controversial area.” West is describes this as revealing “delusions of grandeur” because Jones is “speaking as if he is more powerful than a majority on the United States Supreme Court! He is staking out the claim to have the right and duty to decide the question of whether inteligent [sic] design is science for all other judges in the entire United States in the future.” Of course, this absolutely misrepresents what Jones clearly means in this passage. Jones is saying nothing more than the obvious fact that a trial court judge is in the best position to assess the facts of a case. No competent lawyer disputes this standard principle of our legal system. While a higher court may certainly be equally competent to discuss whether or not, say, the Lemon test is the appropriate legal standard, no other court–especially after such extensive testimony from some of the leading figures on this subject–is in a better position to address whether or not Intelligent Design is religion or science. That is a factual determination, and Judge Jones is in the best position to discuss such a matter. It is one of the fundamental roles of the judiciary to write opinions like this, and thereby aid future courts that may have to consider similar cases in the future. Jones has never suggested that future litigants have no opportunity to present their evidence, or that his ruling must control other courts. It is intellectually dishonest to read this paragraph as suggesting that Judge Jones imagines himself as “speak[ing] for the entire federal judiciary.”

West goes on to complain that Jones “use[d] judicial power to decide [a] divisive cultural controvers[y].” Of course, Jones did not decide a divisive cultural controversy. He decided that the school board violated the Establishment Clause by teaching religion in government-run classrooms. His ruling did not discuss whether religious accounts of the origin of species are true or not; his ruling simply said that they are not science. Nor does he bear any responsibility for the “divisive[ness].” That blame rests squarely on those who wish to teach religion in government classrooms under the guise of science.

Judge Jones, according to West, “wanted to decide the larger public controversy for all future legislators, school boards, and judges. That is judicial activism with a vengeance. It’s the same type of activism that led the federal courts to try to decide the issue of slavery before the Civil War by judicial fiat in the case of Dred Scott.” This is a reference to Robert Bork’s theory of substantive due process–which, as I’ve explained, is really an argument against judicial review. And, as I’ve explained elsewhere, it betrays a profound ignorance of what the Dred Scott decision actually said.

Finally, West concludes by claiming that so-called “judicial activism” “betrays the democratic process and often leads to further polarization.” But, of course, the whole purpose of the courts is to limit the “democratic process.” The Bill of Rights limits the democratic process by saying that that process may not (among other things) deprive people of their freedom of religion, or speech, or press. When the legislature deprives an unpopular minority of these rights, and a court intervenes to protect these rights, that is certainly a limit on the “democratic process.” But that is why we have courts. West’s argument here is against the concept of judicial review itself. He prefers absolute, unlimited democracy which “giv[es] everyone a stake in the discussion.” But a proper, legitimate democratic system contains limitations that protect the rights of the minority–limits enforced by an independent judiciary which, among other things, stands in the way of “democracy” when it tries to violate the Establishment Clause.