Discoveroids’ Kitzmas Series: #6 — Activist Judge

The relentless countdown — or count up — continues. The Discovery Institute is working its way up to their #1 reason why the decision on 20 December 2005 by Judge John E. Jones III in the case of Kitzmiller v. Dover Area School District was all wrong and is of no importance whatsoever. We anticipate that their number one reason will appear on the 20th, the day we celebrate Kitzmas.

The Discoveroids’ latest is Ten Myths About Dover: #6, “Judge Jones, No Activist, Stayed Strictly Within His Authority”.

Like the first two posts in the Discoveroid series (#10 and #9), this one was written by Sarah Chaffee, a new Discoveroid staffer who is neither a biologist nor a lawyer. At first, her byline also appeared on #8, but that got changed to Casey, who also wrote #7. The byline change prompted speculation that Sarah was a gentle flower who couldn’t handle the criticism she saw on the internet, and she had dropped out — at least from her role in this series. But her byline is on this one, so the speculation was wrong. Sarah’s faith is strong! We’ll give you some excerpts from her new post, with bold font added by us.

Judge John E. Jones III’s holding on whether intelligent design is science is probably the most celebrated part of the Kitzmiller v. Dover decision. … But the section on whether ID is science does not display sound legal reasoning. On the contrary, Judge Jones overstepped his authority.

Really? This should be fun. Sarah tells us:

To be sure, he claimed that his decision was not that of a judicial activist:

[Sarah quotes from the Judge’s opinion:] Those who disagree with our holding will likely mark it as the product of an activist judge. If so, 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 [intelligent design], who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.

Right. And as we pointed out earlier in Discoveroids’ Anti-Kitzmiller Series: #9, the parties to the case agreed that the constitutional issue to be decided in the case was whether the school board wanted to teach religion, and that the test to be used was provided by the US Supreme Court in Lemon v. Kurtzman. That’s exactly what the judge did in his opinion. However, following a Supreme Court precedent isn’t good enough for Sarah. She says:

But what constitutes going outside of judicial authority? Judicial activism is defined byBlack’s Law Dictionary, seventh edition, as “A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”

[*Begin Drool Mode*] Ooooooooooooh — a dictionary! [*End Drool Mode*] Let’s read on:

Jones’s ruling meets this definition of judicial activism. First, there was no need to determine whether or not ID is science.

BWAHAHAHAHAHA! Of course there was. If intelligent design is science, then it’s acceptable to teach it in public schools. That’s exactly what the school board was claiming. Sarah continues with a big quote from Casey about the Lemon case. Some of it is worth repeating:

[The Lemon test is] the main judicial test used by courts in determining whether a government policy satisfies the Establishment Clause. It’s a three-part test, and each part (or “prong”) must be passed successfully if a government policy is to be constitutional.

[…]

Here are the three prongs, slightly paraphrased:

• Prong 1 (the “purpose” prong): The policy must have a secular legislative purpose.

• Prong 2 (the “effect” prong): The principal or primary effect of a policy must neither advance nor inhibit religion.

• Prong 3 (the “entanglement” prong): The policy must not foster excessive government entanglement with religion.

That sounds right. Let’s find out what Sarah does with it:

According to court precedent, Jones only had to determine if the Dover school board’s policy met the first prong of the Lemon test — that is, did the policy have a secular purpose? As the Edwards v. Aguillard ruling stated:

[Sarah’s quote:] If the law was enacted for the purpose of endorsing religion, no consideration of the second or third criteria [of Lemon] is necessary.

Yes, flunking one prong of the Lemon test is enough to invalidate a government action. But watch how Sarah handles that:

If so, an Establishment clause violation had occurred, the policy was unconstitutional, and no further legal analysis would be necessary or appropriate. In his ruling, Judge Jones found a predominantly religious purpose for the policy — and went on to rule on numerous other issues. … If Judge Jones had followed precedent, he would not have included an analysis of whether ID is science.

BWAHAHAHAHAHA! It’s apparent that Sarah has no legal training — unless she attended the Seventh Planet School of Law. That’s where they teach the rule that says: “When a judge finds one reason to support his decision, he must stop! If he gives more than one reason, his opinion is worthless!”

It’s also apparent that Sarah didn’t even read the Kitzmiller opinion. Had she done so — you can see it here — it’s readily apparent that Judge Jones made an exhaustive review of the precedents, some of which struck down teaching “creation science,” and he followed them scrupulously. On page 132 of the opinion, he said:

Although Defendants’ actions have failed to pass constitutional muster under the endorsement [of religion] test and pursuant to the purpose prong of Lemon, thus making further inquiry unnecessary, we will briefly address the final Lemon prong relevant to our inquiry, which is effect, in the interest of completeness.

Nothing wrong with completeness. In the event that an appellate court had overturned Jones’ finding on one prong, it made good sense to find that the school board also violated another prong — or some other rule of law. Hey — he also found that the school board’s policy violated the Pennsylvania Constitution. Does Sarah think he shouldn’t have considered that?

Here’s more:

Second, a ruling on the nature of science is outside the realm of judicial authority. [Big quote from somebody who isn’t a judge.] Federal judges are to decide constitutional questions. Deciding what is and is not science is a matter for philosophers of science.

Really? Judge Jones cited numerous cases, including the US Supreme Court’s Edwards v. Aguillard, invalidating the teaching of “creation science” and “scientific creationism” on the grounds that they weren’t science, just religion. If a judge couldn’t examine such issues, then any flaming creationist fool could label his beliefs as “science” and float gently by the courts into the public schools. Indeed, that’s what the Discoveroids have been trying to do.

Moving along, Sarah gives us this gem:

Along these same lines, Judge Jones found that ID is not science because it supposedly “failed to gain acceptance in the scientific community.” Not only is this false — there are highly credible scientists who support ID — it is also irrelevant to whether ID is science. The history of science is littered with scientific theories that have been rejected by most scientists. Philosophers of science would generally agree that whether something is “science” is not determined by its level of acceptance in the scientific community.

BWAHAHAHAHAHA! There are “highly credible scientists who support ID”? Sarah doesn’t name any, and for good reason. Anyone who rejects evolution and supports intelligent design is by definition not credible. More than a century ago, it might have been different, but not now. Another excerpt:

But the big danger of his endorsement of the “general acceptance” test is that it threatens to hinder the advancement of science. … If his view of science ruled, then any scientific revolution would be blocked. New scientific theories, almost by definition, start with a low level of acceptance in the scientific community.

BWAHAHAHAHAHA! The judge didn’t rely solely on “general acceptance.” He went into the substance of intelligent design in depth. There is no substance — it’s nothing but Oogity Boogity! That’s why credible scientists reject it.

Sarah babbles on and on. We’ll skip to the end:

Not only did Jones eschew judicial economy, he attempted to act as a policymaker and wandered into the relationship between science and religion. If this is not a textbook case of “judicial activism,” the opposite of a judge staying within the boundaries of his proper authority, then the phrase has no meaning at all.

So there you are. Forget about Kitzmiller. The judge was a clown. That’s what Sarah says.

Copyright © 2015. The Sensuous Curmudgeon. All rights reserved.

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20 responses to “Discoveroids’ Kitzmas Series: #6 — Activist Judge

  1. Each piece in this series sounds like bad Soviet propaganda filtered thru The Onion.

  2. michaelfugate

    Given the Christmas season, shouldn’t they have gone for 12 days of Dover? But if it were really of no importance, wouldn’t they be better off ignoring it altogether? Nothing happened in 2005 of any consequence, move along folks. Then again it may deflect from their testimony at the Kansas Standards hearing – how old was the earth again, Stephen Meyer?

  3. Derek Freyberg

    Had “Of Pandas and People” not had “cintelligent design proponentsists” in it, and had some Dover School Board members not both publicly espoused the teaching of biblical creationism and then lied about their actions under oath – in other words, had another school board in a galaxy far, far away found a different book to use and not dug their own hole to fall in while still promoting the teaching of ID as an alternative to evolution – it might be interesting to speculate how Judge Jones might have ruled. Even then, I think, ID would fall. As many people have pointed out over the years, evolution is a scientific theory, with all that entails; ID is not.
    Sarah says:
    “Second, a ruling on the nature of science is outside the realm of judicial authority. Federal judges are to decide constitutional questions. Deciding what is and is not science is a matter for philosophers of science.”
    No Sarah, it is not so.
    1. Federal judges decide questions of Federal law (and state law as and where necessary), looking to the Constitution only when there is no law on point or when there is a constitutional challenge to the law. Moreover, they are generally bound by precedent – that being the way the law works in common law jurisdictions. Judge Jones didn’t have to look to the First Amendment, he could – and did – look at a line of Supreme Court precedent on teaching religious pseudoscience in biology classes.
    2. You’re keen to refer to Daubert as if it supports your argument. Daubert is precisely about “what is and is not science”, since it (and Federal Rule of Evidence 702, following it) create a filter by which courts exclude junk science or pseudoscience from testimony. And the way that is done is by the court deciding “what is and is not science”, at least as far as the case in question is concerned. May I suggest reading https://en.wikipedia.org/wiki/Daubert_standard and https://en.wikipedia.org/wiki/Daubert_v._Merrell_Dow_Pharmaceuticals,_Inc. , and the cases. I agree that Daubert doesn’t require “‘general acceptance’ as an absolute prerequisite to admissibility”, but that’s not what Judge Jones required either.

  4. Derek beat me to it. Daubert. Not judicial activism. Plain stare decisis. Sorry DI.

  5. I’m sure, because they argue so vociferously that the judge overstepped his bounds in ruling on whether ID is science, that the DI would argue just as strongly if the judge had decided in their favor. They would claim that he was an “activist judge” in that case too. After all, if their argument is sound, that would be the case.

    Something tells me we wouldn’t be reading any critiques at all if the decision went the other way, rather in that case Judge Jones would be an icon of the ID movement, and a “hero of science” to the DI.

  6. Sarah Chaffee attended Patrick Henry College, a school with a total enrollment of 320 founded in the year 2000. Patrick Henry College has no science department. Furthermore, Patrick Henry College is a creationist, evangelical establishment.

    So, how is Sarah Chaffee qualified to decide whether or not ID is science? After all, in order to attend Patrick Henry College, she signed an affirmation of faith that Genesis is true science.

  7. I wonder if the DI us having “Sarah Chaffee” (possible pseudonym?) to author the articles with the most obvious unsound legal reasoning saving Casey from having to attach his name to the largest blunders.

    They sure spend an inordinate amount of time & energy refuting something they claim they recommended against: (from the DI’s Ten Myths About Dover: #9, “The ID Movement Had Its Day in Court”)

    Before a lawsuit was even filed, Discovery Institute agreed that Dover’s policy was imprudent. And it was clear from early on in the lawsuit that the Dover School Board’s policy would probably be declared unconstitutional simply because various school board members who pushed for it had expressed clearly religious motives. If the ID movement sought a test case, this was not it. Indeed, if the ID movement had wielded any control over the Dover School Board members, the case would never have gone to trial.

    It seems to me the Judge ruled basically how they thought he would, why complain now? I guess so they can spend ten days complaining about it.

  8. The whole truth

    The statement of faith at Patrick Henry College (where sarah chaffee was educated further programmed to push a theocratic agenda and lie for imaginary yahoo-yeshoo-holy-spook):

    “The College is, and shall always remain, a Christian institution dedicated to bringing honor and glory to the Lord Jesus Christ in all of its activities. Each trustee, officer, faculty member, and student of the College, as well as all other employees and agents of the College as may be specified by resolution of the Board of Trustees, shall fully and enthusiastically subscribe to the following Statement of Faith:
    A. There is one God, eternally existent in three Persons: Father, Son, and Holy Spirit.
    B. God is Spirit, and those who worship Him must worship Him in Spirit and in truth.
    C. Jesus Christ, born of a virgin, is God come in the flesh.
    D. The Bible in its entirety (all 66 books of the Old and New Testaments) is the inspired Word of God, inerrant in its original autographs, and the only infallible and sufficient authority for faith and Christian living.
    E. Man is by nature sinful and is inherently in need of salvation, which is exclusively found by faith alone in Jesus Christ and His shed blood.
    F. Christ’s death provides substitutionary atonement for our sins.
    G. Personal salvation comes to mankind by grace through faith.
    H. Jesus Christ literally rose bodily from the dead.
    I. Jesus Christ literally will come to earth again in the Second Advent.
    J. Satan exists as a personal, malevolent being who acts as tempter and accuser, for whom Hell, the place of eternal punishment, was prepared, where all who die outside of Christ shall be confined in conscious torment for eternity.”

    All science and Constitutional law so far!

    ‘Malevolent’ is an accurate way to describe chaffee, luskin, and the rest of the IDiot-creationists.

  9. The whole truth

    Patrick Henry “College” (LOL) and the Institute for creation “Research” (LOL), a match made in creobot looneyville:

    http://learnphc.com/2015/12/01/15-reasons-why-utmg-was-a-hit/

    No wonder the discotoot hired chaffee to help them push their distortions and lies.

  10. In its amicus curiae brief …

    http://www.discovery.org/scripts/viewDB/filesDB-download.php?command=download&id=646

    … the Discovery Institute argued that, if ID is science, that would satisfy the second prong of the Lemon test and negate one of the plaintiff’s arguments as to why the Dover policy was unconstitutional. That certainly makes the status of ID relevant to the Judge’s decision under the Lemon test. Therefore, the DI was itself arguing that the judge should decide whether or not ID is science.

  11. John Pieret says: “In its amicus curiae brief … the DI was itself arguing that the judge should decide whether or not ID is science.”

    Excellent!

  12. @John Pieret
    I thought that I remembered that they were asking the judge to say that ID was science. Why else would they ask Behe to testify?
    Thank you.

  13. RSG: “So, how is Sarah Chaffee qualified to decide whether or not ID is science?” As near as I can tell, her scientific ‘credentials’ are identical to Klinghoffer’s. At least Klinghoffer went to a real university, even if he learned nothing beyond what he’d have gotten by simple diffusion.

  14. Jones’s ruling meets this definition of judicial activism. First, there was no need to determine whether or not ID is science.

    Something of a bait-and-switch here: Jones ruled that ID is Creationism, which is a stronger statement than “not science”.

  15. A clarification is in order – after a search I find “ID is not science” occurs 3 times, and far more instances of “not science” in the same context.

    The ruling also includes this text:

    The weight of the evidence clearly demonstrates, as noted, that the systemic change from “creation” to “intelligent design” occurred sometime in 1987, after the Supreme Court’s important Edwards decision. This compelling evidence strongly supports Plaintiffs’ assertion that ID is creationism re-labeled.
    Importantly, the objective observer, whether adult or child, would conclude from the fact that Pandas posits a master intellect that the intelligent designer is God.

    Page 33, if you are looking for it.

  16. Yeah, all of those posts feel like Casey Luskin to me, perhaps they put Sarah Chaffee on some so that they can include long Luskin quotes without it being “weird”. I’ve not seen any evidence that Chaffee is hip on the kinds of detailed hangups that Luskin has with each facet of this issue…

  17. The idea that ID was science was raised BY THE DEFENSE, in order to provide a secular purpose and secular effect. Thus, the judge had 2 options (1) ignore their argument, attracting complaints that he didn’t address the Defense’s argument, and increasing the chance he would be overturned on appeal (which judges hate) — at the time, an appeal seemed likely, based on School Board/Thomas More Law Center rhetoric; or (2) address the science argument straight on, in as thorough a way as possible.

    He chose #2. If he’d chosen #1, the DI would be “complaining” about that, and arguing that the decision was meaningless because it didn’t address the crucial science question, which is the reason teaching ID has a secular purpose and secular effect despite religious implications. The ID movement has put forth that argument-from-science numerous times, often explicitly in discussion of legal matters, and fairly often in explicit “day in court” fantasies. I have a collection of them somewhere…

  18. For any true masochists in search of painful seasonal cheer, the various filks I have been shamelessly inflicting on the unwary in the comments on this blog have now been gathered together by Dysovary Institute on a single song sheet: Kitzmas Carols

  19. Oops! ‘Link title’ above should be ‘Dysovary Institute’

    [*Voice from above*] It shall be as you wish.

  20. Judge Jones cited numerous cases, including the US Supreme Court’s Edwards v. Aguillard, invalidating the teaching of “creation science” and “scientific creationism” on the grounds that they weren’t science, just religion. If a judge couldn’t examine such issues, then any flaming creationist fool could label his beliefs as “science” and float gently by the courts into the public schools.

    Or any other sort of idiot: flat-earthers, ancient-astronaut believers, astrologers, etc., etc. American science education would become a global laughingstock.

    But the big danger of his endorsement of the “general acceptance” test is that it threatens to hinder the advancement of science. … If his view of science ruled, then any scientific revolution would be blocked. New scientific theories, almost by definition, start with a low level of acceptance in the scientific community.

    And that’s the whole point. Such theories start with a low level of acceptance and evidence in their favor has to accumulate for that to change. That has already occurred for evolution and against creationism.
    Creationists like to complain (whine, really) that scientists have been conspiring since the nineteenth century to push the “ideology of Darwinism” and suppress the “truth” of creationism. Rubbish. Creationism started out with a huge advantage, being accepted even by eminent scientists such as William Thomson, better known as Baron Kelvin (though Kelvin favored a form of “guided evolution” rather than straight-up Genesis). Only after a steady accumulation of evidence in favor of evolution did it become the consensus of scientific opinion as to the emergence and development of life. Creationists’ chief arguments have been that (1) pro-evolution evidence has been faked; (2) pro-evolution evidence which even they don’t have the gall to suggest was faked has simply been misunderstood and actually supports creation; and finally, if all else fails, that (3) any evidence which supports evolution doesn’t count, because the only evidence that matters is God’s word as revealed in Genesis. Small wonder that Judge Jones felt it necessary to rule on the nature of science.