Posted by Timothy Sandefur on December 28, 2005 03:17 PM

John West is not a lawyer, so it’s hard to tell if his criticisms of Kitzmiller are utterly dishonest or just totally ignorant. His last posts have contained a lot of footstamping at the Judge’s factual findings, and I’ll leave those issues to Pim van Meurs. But in Part 3 of his criticism, West claims that Judge Jones erred by relying on previous editions of Of Pandas And People in determining whether it was a religious book or not.

But what in the world is wrong with this? The Supreme Court has recently reiterated that the most important element of an Establishment Clause case is context, and that historical details are important to understanding that context. See McCreary County v. American Civil Liberties Union of Kentucky, 125 S.Ct. 2722, 2734-35, 2735-37 (2005). Justice Souter, whose opinion in McCreary is an unusually good Establishment Clause decision, rejected the argument “that purpose in a case like this one should be inferred, if at all, only from the latest news about the last in a series of governmental actions.” Id. at 2736. Instead, he took the “common sense” position, id. at 2737, that a court should consider the historical context of a challenged government action when deciding whether it violates the Establishment Clause, because that context will allow the court to perceive the government’s sectarian intent.

And, of course, the facts justify Judge Jones in that expectation. Of Pandas And People began as a creationist tract, and was transformed into an Intelligent Design textbook by simply replacing the word “creation” with “design” and so forth—quite a symbol for the entire ID movement, which is just creationism dressed up in a lab coat. In fact, in one amazing incident (not mentioned by Judge Jones) one unpublished draft of Pandas reflected this change when a typo read, ““Evolutionists think the former is correct, cdesign proponentsists [sic!] accept the latter view.”

West is bothered by the fact that Judge Jones denied the book’s publishers the opportunity to intervene in the case to, in West’s words, “defend [themselves].” But the publishers were not parties to the case, and had no need to “defend” themselves from anything. Their book was only evidence in a trial between two other parties. Federal Rule of Civil Procedure 24, as any attorney knows, governs whether a non-party can intervene in a case, and that rule entirely justified the court in denying the publisher’s motion for intervention. But, again, John West is not an attorney, so I’ll explain. Intervention is a process whereby someone who is not a party to a case—not a plaintiff or defendant—can become a party. This is a much bigger step than becoming an amicus, which is what happens when a non-party just has an opinion about a case, or just has some additional information to offer. The difference between an intervenor and an amicus is the interest at stake. An intervenor has some sort of “direct, substantial interest in [the] litigation,” Brewer v. Republic Steel Corp., 513 F.2d 1222, 1223 (6th Cir. 1975), while an amicus “give[s] the court the benefit of its expertise,” or provides further evidence. Id. at 1225.

Because intervention adds a new party to a case, it complicates things enormously. Intervenors can appeal, they can settle, they can do all sorts of things that make a case much more difficult to manage. This is why the Dover School Board opposed the publishers’ motion to intervene as did the Plaintiffs. The Federal Rules give the right to intervene in spite of that kind of opposition only when the intervenor “claims an interest relating to the property or transaction which is the subject of the action” and which the “disposition of the action may as a practical matter impair.” Obviously this was not the case here, since the publishers of Pandas in no way stood to lose a property right, or anything like it, as a consequence of the case. They argued that they stood to lose potential profits if because “[a] ruling by this Court finding that intelligent design theory is religion would destroy [their] ability to market [their] textbooks within this district,” Motion to Intervene by FTE at 7, but this is not the sort of direct, tangible interest that warrants intervention as of right, particularly since private schools and private individuals are still free to purchase Pandas if they want, and because the publishers failed to provide any evidence to substantiate their claim of potential losses. Order Denying Motion to Intervene of FTE at 11. Judge Jones found that the publishers’ asserted interest in the outcome of the case was “an uncertain and purely economic one,” id. at 12, and that their “‘interests [were] of a general and indefinite character,’” id. at 12 (quoting Harris v. Pernsley, 820 F.2d 592, 601 (3d Cir. 1987)). Thus the publishers had nothing to “defend,” and intervention was not warranted.

Moreover, Judge Jones found that the publishers waited five months before filing their motion—not what you’d expect of a group trying to “defend” themselves—and that they filed their motion only a month before discovery was set to close, meaning that to allow intervention would have required changing that deadline and possibly allowing a whole new round of depositions and other discovery. Id. at 8. And there was no reason to believe that the school board would not do just as good a job of defending ID as the publishers of Pandas. Id. at 15-19.

Of course, a judge may also choose to allow intervention anyway, if “an applicant’s claim or defense and the main action have a question of law or fact in common,” but remember, intervention means that the applicant becomes an actual party—the publisher would become a defendant in the case. That’s a big step, since, as I’ve said, intervention complicates cases a great deal. This is why “ if an amicus curiae status adequately protects an applicant’s interests, this will be chosen instead of intervention, where the only issues involved are of law, and the applicant would contribute little but possibly complicate the proceedings, or where the applicant has only an attenuated interest in the legal issues, and intervention might significantly complicate the proceedings.” 25 Fed. Proc., L. Ed. § 59:382 (2005). It was entirely appropriate to for Judge Jones to deny permissive intervention to the publishers and to grant them amicus curiae status instead. The decision of a judge to keep a case simple and require a party that has only an opinion or evidence to offer to do so through an amicus brief is “ the kind of judgment on which the district court’s expertise and authority is at its zenith.” Daggett v. Commission on Governmental Ethics and Election Practices, 172 F.3d 104, 113 (1st Cir. 1999).

What is “grotesque” here is not Judge Jones’ ruling, but John West’s ignorant and dishonest characterization of this case. He ought to hesitate before accusing people of “misappl[ying] the relevant legal standards” when he himself has so little understanding of what those legal standards are. Judge Jones was correct to limit the publishers’ participation to that of amici, and right to find their rationalizations for their disguised creationist tract to be unconvincing.