The Montana Law Review symposium on the Kitzmiller decision has been posted on line. It includes an article by the DI’s David De Wolf, John West, and Casey Luskin, then a masterful response by Peter Irons, then a rebuttal to that by De Wolf, et al. There’s little here that Thumb readers won’t already know—although it’s always nice to see an article like Irons’, which not only makes all the right points, but does so in a wonderfully readable, non-technical style. We’ve responded at length to the DI’s accusation that the Kitzmiller decision is an “activist” decision, but I did want to say a bit more on this. (It appears on pp. 14-17 of the first De Wolf, et al., article.)
I don’t think it’s been pointed out that the DI guys confuse “activism” and “orbiter dicta,” which are two different concepts—assuming that “activism” is a concept at all, which I doubt. Judicial activism, contrary to the suggestion by De Wolf, et al., is not a clearly defined term. As I have recently argued (and others before me), the term is usually applied to whatever judicial decision the speaker doesn’t like. But those who accuse a court of being “activist” generally mean that the court has gone beyond the statutory law or the clear requirements of common law to accomplish some outcome that the judge considers desirable for his own, often subjective, reasons—as opposed to (what is considered the proper role of judges) deciding a case on the basis of impartial and impersonal considerations of abstract legal theory and specific factual determinations. In my recent article in the Journal of Law and Politics, I give the example of the Nevada Supreme Court’s decision in Guinn v. Nevada Legislature, which I think rather obviously manipulated the law to accomplish what the justices considered to be the “right” outcome, in direct contradiction to state law. If activism is the right word for what the court did, it is because the court went out of its way to manipulate the law to accomplish a particular outcome.
But De Wolf, et al., contend that Judge Jones acted in an “activist” manner because he “tried to settle a controversial social issue by deciding matters far beyond the necessary legal questions he had to address.” (p. 17). That is, by concluding that ID is not science, in addition to concluding that ID is religion, Judge Jones went farther than necessary. But that’s not activism—that’s orbiter dicta. Dicta is a legal term meaning “words in a judicial decision that aren’t necessary to the particular holding in a case” (or, literally, “[by the way of words*]”). Imagine a lawsuit over whether an Fig Newton is a cookie or not. If the court says “a Fig Newton is a cookie, and so are Oreos, by the way,” then the phrase “so are Oreos” is dictum, because it doesn’t really go to the question presented in the case. Judges write dicta all the time. It’s one of the important ways the law evolves: courts can discuss legal theories, their views of how the law ought to develop in future cases, and so forth. Dicta are very useful—but are not legally binding. Future litigants have a chance to convince another court to rule the other way. Dicta provide only what we call “persuasive authority,” not “binding authority.” If another court finds the dicta unpersuasive, it can reject them.
As Prof. Neal Kumar Katyal puts it,
dicta does not have binding effect. Dicta is, in short, nothing more than a warning (albeit one written by powerful and generally principled individuals), one which can help political branches and people plan their affairs. Dicta is useful, for example, to suggest tentative limitations of a decision or to scold [a legislature]. Without dicta, courts would strand politics, businesses, and individual citizens in uncertainty—particularly today when the high court does not hear many cases. With advicegiving through dicta, each case has the potential to become a storybook lesson for America, permitting the Court not only to definitively resolve the legal status of the case at hand, but also to define its tentative thinking about a range of other issues as well. Courts already perform this role.… Indeed, they have been providing advice through dicta throughout this century. Thus, judicial advicegiving through cases is not a radical suggestion designed to flout the prohibition on advisory opinions.
What De Wolf et al. object to isn’t really activism—because the holding of the case went no farther than necessary. What they object to is that Judge Jones went on to explain certain matters (and, of course, persuasively) for future courts considering this issue. That’s not activism, it’s dicta—mighty powerful dicta, and it’s just what courts ought to do.
Now, I’m putting aside the fact that the Defendants in Kitzmiller invited the court to determine whether ID is science—note, for instance, their pretrial memorandum, when they contended that “the evidence will show that IDT [ID theory] is a scientific argument, advanced by scientist [sic] relying on evidence and technical knowledge proper to their specialties,” and that ID’s reliance on supernatural explanations “does not place [it] beyond the bounds of ‘science.’ Quite the contrary, IDT’s refusal to rule out this possibility represents the essence of scientific inquiry.” (Def. Pretrial Mem. at 10-11.) This is a fact that those trying to smear Judge Jones really enjoy forgetting.
Anyway, read Peter Irons’ article. It’s outstanding, and you don’t have to be a lawyer to understand it.
* Update: Thanks to Matthew P. Wiener for the Latin correction!