Intelligent Design is struck down in PA, but what does the opinion foretell about the future of an independent judiciary?

It's been a rough few months for this blogger, which is why you haven't seen me in a while.  This doesn't mean that there hasn't been a lot happening on the legal front -- there has.  And, hopefully, I'll be able to do some catching up during the next few weeks.  Today, though, it's time for current events.

Earlier today a judge from the Middle District of Pennsylvania held, in Kitzmiller v. Dover Area School District, that the School District cannot require students to hear about Intelligent Design.  The court determined that  "the secular purposes claimed by the Board amount to a pretext for the Board's real purpose, which was to promote religion in the public school classroom, in violation of the Establishment Clause."  The court based its ruling, in part, on the fact that plaintiffs' scientific experts testified that the theory of evolution "in no way conflicts with, nor does it deny, the existence of a divine creator."

In case you're wondering, the judge who decided the case -- the Hon. John E. Jones III -- is a 2002 Bush appointee.

In a striking commentary on the current climate in the US, the court apparently felt constrained to preemptively defend its own decision -- and itself -- from charges of judicial activism.  The court not only protested any such label, but criticized the school board and its attorneys in a manner rarely seen in court decisions.

In a very unusual move the court acknowledged, in its opinion, that proponents of Intelligent Design would not only disagree with the holding, but will also "mark it as the product of an activist judge."  The court preventatively challenged this characterization, noting that if they do:

they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has not been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

I absolutely understand Judge Jones' concern that he -- not the law or his legal reasoning -- will be attacked for his ruling.  I'm not so sure, however, that he was right in addressing it as he did.

The legal system discourages parties, and their attorneys, from making ad hominem attacks against each other.  And for good reason -- if it didn't, litigation would devolve into one huge shouting match (and belive me, some cases are close enough to that as it is).  Here, however, Judge Jones himself is doing the attacking, which didn't stop with the above paragraph.  He continued:

The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic 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 ID Policy.

Frankly, I don't disagree with a thing the court said; I am, however, concerned by the fact that he said it.  Indeed, that courts are being attacked in a way that led him to feel that this sort of commentary was necessary.

Statements like this are made all the time, but by the opposing party, opposing counsel and supportive non-parties.  They're not made by judges, even if the judge feels strongly about a case or the parties litigating it.  (Admittedly, I have seen opinions criticizing counsel for poor preparation and the like, or critizing a party for blatant lying.  But those opinions are very, very rare, and focus on the behaviour at issue rather than their broader context.)  Judges are supposed to be unbiased and motivated solely by the legal issues of the case; they are not supposed to be considering the hypocrisy of the parties, or the well-being of the communities the parties should be serving.  At least not publicly.

One thing I find particularly striking here is that Judge Jones isn't exactly a bleeding-heart liberal -- he's a Bush II appointee.  Yet even he recognized that the school district acted impermissibly.  And, despite his own conservative background (he was co-chair of Tom Ridge's transition team when the latter was governor-elect in 1994), he still felt defensive, concerned that he would be accused of being an activist judge.  Aren't conservative credentials worth anything these days?

But back to the broader issue -- what will happen to the legal system if judges are feeling so defensive?  Will they continue to do what they believe the law requires -- as Judge Jones did here, and as Judge Harold Baer did years ago, in a police stop case in the Southern District of New York, years ago to name just a couple notable examples -- or will there be a point where they start caving to social pressure?  In 1996 Judge Baer was not only criticized for his decision but called on to resign and threatened with impeachment because he believed the police were acting unreasonably.  The American Bar Association was concerned about how such criticism would affect judicial independence in 1997 -- before judges felt the need to defend themselves as Judge Jones did.  What greater problem does Judge Jones' commentary in Kitzmiller foretell?

Comments

[ohwilleke]

Don't forget that he was also a Republican Congressional candidate.