When Real Judicial Conservatives Attack [Dover ID opinion]

If there’s anything to be learned from the intelligent design debate, it’s that branding “activist judges” is the hobby of bitter losers.

For those who care about the fight over evolution in biology classrooms, Christmas came five days early when the Kitzmiller v. Dover Area School District ruling was handed down. In his decision, Judge John E. Jones III ruled that not only is the theory of intelligent design religion poorly dressed in science language, teaching it in class is an outright violation of the First Amendment.

The ruling was a concise and devastating demonstration of how law, precedent and evidence can come together to drive complete nonsense out of the courtroom. But if the aftermath of the event proves anything, it proves that nine times out of 10, if someone accuses a judge of being an “activist,” it is because he disagrees with the ruling and wants to make it clear to like-minded followers that they only lost because the liberals are keeping them down. Gratuitous overuse has, in just a few short years, turned the phrase “judicial activism” from a description of an actual problem in the legal system into a catch-all keyword for any ruling that social conservatives dislike.

During the months between the initial suit and the final decision, a high-powered law firm from Chicago volunteered some of its best to represent the plaintiffs pro bono, defenders of evolution and intelligent design mobilized, and few people really cared other than court watchers, biology nerds and a suspicious number of creationist groups. The trial went well for the plaintiffs: Their witnesses and evidence were presented expertly and professionally, and it never hurts when at least two of the witnesses for the defense are caught perjuring themselves in their depositions. Advocates for teaching actual science in school science classes were fairly confident that Jones was going to rule in their favor.

When it came, the ruling was significant enough to earn a slightly wider audience than the aforementioned court watchers, biology nerds and creationists. What drew interest from newcomers was not the minutiae of the trial, but the scope of Jones’ ruling and the scorn for the Dover School Board’s actions that practically radiated off the pages. He ruled both that intelligent design was a religious idea, and that teaching it in a science class was an unconstitutional establishment of religion by the state. He didn’t stop there, however.

“It is ironic,” he wrote, “that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the intelligent design policy.”

Such harsh language might provoke some sympathy for intelligent design advocates, if they hadn’t immediately demonstrated how much they deserved it by responding — not with scientific arguments for intelligent design or legal precedent to contradict Jones’ ruling — but with ridiculous name-calling. The Discovery Institute, the leading center of ID advocacy, referred to Jones as “an activist judge with delusions of grandeur.” Bill O’Reilly also brought out the “A” word on his show. Richard Land, spokesman for the Southern Baptist Convention’s Ethics and Religious Liberty Commission and noted drama queen, declared him the poster child for “a half-century secularist reign of terror.” The American Family Association, having apparently read a different ruling than the rest of America, insisted that judges were so eager to keep God out of schools that they would throw out even scientific evidence for Him. Funny how so many creationist groups seemed to have missed the memo that intelligent design isn’t supposed to be about God at all.

It was depressingly predictable that the intelligent design crowd would saturate the Internet with cries of judicial activism regardless of the actual legal soundness of the ruling. In only a few years, intellectually lazy political leaders have morphed an honest problem in the judiciary that deserves serious debate into shorthand for social conservatism’s flavor of the week. The phrase has been spread around so much and applied to so many people that it only has meaning within the context of someone’s rant. It is the politico-speak equivalent of “dude.”

Only when one learns that Jones was appointed by George W. Bush and had conservative backers that included the likes of Tom Ridge and Rick Santorum can one appreciate how indiscriminately the term is thrown around. Jones is demonstrably a judicial conservative. In fact, he’s the kind of strict constructionist that social conservatives claim to want on the bench. Their mistake is in assuming that the law and their ideology must necessarily be the same thing.

In the end, no one could defend Jones better than he did himself. He saw the breathless accusations of judicial activism coming a mile away, and refuted them within the text of the ruling. In his conclusion he wrote:

Jones knew his name would be dragged through the mud and issued the correct ruling anyway. One can only hope that the utter childishness of the intelligent design response will alienate even more sensible people, and that the phrase “judicial activism” will from now on be used only by those who know what they’re talking about. No bets on the latter.

You wrote:

"First of all, Rehnquist, God rest his soul, accepted the incorporation doctrine and agreed with Curtis in this regard".

From Stanford Magazine (Alumni Association magazine), July-August 2005

http://www.stanfordalumni.org/news/magazine/2005/julaug/features/rehnquist.html

Throughout his career, Rehnquist has espoused a view of the 14th Amendment that emphasizes the rights of states to deal with issues ranging from capital punishment to various forms of discrimination, free of federal interference. As a law clerk for Justice Jackson, he told his boss in a memo that Plessy v. Ferguson, the 1896 decision that had upheld “separate but equal,” should be affirmed. (When questioned about the memo during a Senate Judiciary Committee hearing about his nomination to the court in 1971, Rehnquist said this was a restatement of Jackson’s views and did not reflect his own.)

In a voting rights case, Terry v. Adams, he wrote Jackson that “It is about time the Court faced the fact that the white people in the South don’t like the colored people; the Constitution restrains them from effecting this dislike through state action, but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head. To the extent that this decision advances the frontier of state action and ‘social gain,’ it pushes back the frontier of freedom of association and majority rule.”

Rehnquist voiced similar views as a young lawyer in Phoenix, where he testified in 1964 before the city council against an ordinance that banned discrimination in public accommodations. As an assistant attorney general in the Nixon administration, and later as a justice, Rehnquist interpreted the amendment in a way that fueled his disagreement with the liberal Warren Court’s decisions advancing the civil rights movement and expanding the rights of criminal defendants.

His dissent in Roe v. Wade in 1973 spoke directly to the issue of states’ rights. “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment,” he wrote. The drafters, Rehnquist continued, “did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”

As late as 2000, writing for the court in a ruling that struck down a provision of the Violence Against Women Act permitting rape victims to sue their attackers in federal court, Rehnquist cited a string of late-19th-century cases that construed the 14th Amendment narrowly. They were still good law, he wrote, in part because the court that produced them “had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment,” and hence of its framers’ intent.

From the above, it would not appear that Rehnquist sided with Curtis.

No one knows for certain that we evolved from micro-organisms. There is no certainty that micro-to-man evolution occurred. And if it did occur, no one knows for certain that God had nothing to do with it.

It's not Establishment of a religion to note those facts in a public building.

Suppose, for the sake of argument, that vouchers become the norm, the public schools close down, and everyone sends their kids to a private school. Half the public sends their kids to private schools that teach evolution, the other half to private schools that teach both evolution and ID.

What do you think would be the response of the two sides in this battle? My guess is that the ID side would leave the pro-evolution schools alone. But the evolutionists would try every trick in the book to force the schools that teach both to adopt "evolution only" education. They'd insist that vouchers are aid to the school. They'd insist that the public services the school receives (mail delivery, garbage collection) constitute government participation in the school's activities. They'd constantly nitpick at those schools with lawsuits and demands of government intervention until they either found a court to shut them down or bankrupted them with legal fees.

They'd never allow half the kids in the country to hear an alternative in school, because to them evolution is a religion...THEIR religion....and they demand a theocracy on this issue.

No one knows for certain that we evolved from micro-organisms. There is no certainty that micro-to-man evolution occurred.

It is as certain as any other well-substantiated theory in science.

And if it did occur, no one knows for certain that God had nothing to do with it.

I agree, and no mainstream biology text I know of makes such a claim.

It's not Establishment of a religion to note those facts in a public building.

I agree (with regard to the second fact, the first one is false), but that's not what ID is about. ID, as presented in the Pandas and People textbook, is the scientifically false claim that certain biological entities could not have evolved in a Darwinian manner.

Suppose, for the sake of argument, that vouchers become the norm, the public schools close down, and everyone sends their kids to a private school. Half the public sends their kids to private schools that teach evolution, the other half to private schools that teach both evolution and ID.

I would have no constitutional objection to this.

What do you think would be the response of the two sides in this battle? My guess is that the ID side would leave the pro-evolution schools alone. But the evolutionists would try every trick in the book to force the schools that teach both to adopt "evolution only" education.

I certainly would oppose giving vouchers to schools that teach ID in biology class as an alternative to evolution, but I would not do it in the courts. I would lobby the state education boards and/or accredidation organizations to deny vouchers to schools that teach any pseudoscience, ID included. Giving vouchers to such schools is bad education policy. However, so long as parents have a choice to use their voucher at a school that does teach sound science, I can't see how such a policy, bad and harmful as it may be, would violate the establishment clause.

Sorry, but Rehnquist has explicitly stated that the 14th Amendment applies the bill of rights to the states on many occaisions. Here's just one of the many opinions he's authored that indicate this:

The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the “purpose” or “effect” of advancing or inhibiting religion.

You can read his full opinion here:

http://www.law.cornell.edu/supct/html/00-1751.ZO.html

Your Stanford article mearly indicates that Rehnquist reads the amendment in question a little more narrowly than his colleagues. Nowhere does it provide any evidence that he rejects the incorporation doctrine, something no one even remotely familiar with Rehnquist's opinions would ever suggest.

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