Montana Law Review Issue on Kitzmiller Case

| 14 Comments

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.

Judges As Advicegivers, 50 Stan. L. Rev. 1709, 1805-06 (1998).

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!

14 Comments

There are some hilarious features of the DI article, I will blog them if I get a chance.

The funniest thing about the Discovery Institute’s article in the Review is the title: Intelligent Design Will Survive Kitzmiller V Dover

I’m sure that the Discovery Institute’s ID creationist scam artists will be selling ID for as long as they want to, but these are the same dishonest perps that are now pushing a new creationist scam that doesn’t even mention that ID has ever existed. It was this group of dishonest scam artists that ran the bait and switch scam on the Ohio rubes and they would have run the same scam on the Dover rubes if the Dover rubes would have taken the switch. These guys censored themselves. The Ohio creationist rubes wanted to teach the science of ID, but all they got from the Discovery Institute was the Teach the controversy replacement scam that didn’t even mention that ID had ever existed. That was back in 2002, so the Discovery Institute knew that ID was cooked long before Dover made it official.

The only thing to get out of their article is that they are willing to scam the creationist rubes with intelligent design for the forseeable future. Their own actions tell anyone that ID is already a dead issue for public education.

De Wolf, West and Luskin say: …the Center for Science and Culture was recognized as the leading supporter of research and scholarship on ID

Where can I find this again?

…these materials [Icons of Evolution, etc.] focused only on scientific criticisms of Darwin’s theory. They did not discuss ID.

Ah, there it is.

Wow, Iron’s article is quite fun reading and taking to task the DI for their own inabilities.

John West is calling Irons contribution disappointing. Was it not DeWolf et al who argued earlier in a book, that it was constitutionally permissible to teach ID in the class room? Poor Dover people and the Thomas Moore law firm were led to believe that ID has a scientific foundation, only to be contradicted by the star witnesses. And finally, was there not a posting on PT earlier about the self plagiarism involving this article? Ah yes there it is

Seems the issue resolved itself as a forgetful editor.

Point of information, m’lud - that’s obiter dicta, not orbiter dicta. Obiter dicta is a legal aside; orbiter dicta is what Michael Collins muttered under his breath while Neil and Buzz were taking their holiday snaps on the beach below.

R

Irons has responded to the rebuttal (sic) by Dewolf et al at Dispatches Blog

partial quote

One final comment on this exchange: In their initial responses to the Kitzmiller ruling, the DI authors dismissed Judge Jones’s opinion as of “minor significance,” predicting that it “will recede as an interesting footnote to the history of the scientific and cultural debate” over evolution and intelligent design. Why, then, have they devoted dozens of blog posts, a book, and a law review article to denigrating that opinion and its author? In my view, they recognize that the Dover “disaster” has effectively derailed the DI’s long-range plan to persuade gullible school boards to include ID as a legitimate “alternative” to evolution in biology classes. That defeat has clearly provoked the DI authors to their rhetorical excesses. Once again, I urge readers of this exchange to read the Kitzmiller opinion and decide for themselves which side has the more persuasive argument.

Hear hear

TS Wrote:

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.

The complaint, as I read it, was pretty clearly not that Judge Jones went beyond “concluding that ID is religion”. The complaint seemed pretty clearly to be that by ruling on ID as a theory or movement at all (as science or religion) Judge Jones exceeded his judicial mandate once it became clear that the Dover board’s decision had disastrously failed the “purpose” prong of the Lemon test. The Dover board’s intentions do not equal ID.

That’s still a lame argument, but I think it’s at least the one they’re making.

It appears as though some of this discussion on the part of the ID/Creationist legal eagles is setting up for the time in the future when the they figure they will have some of their lawyers coming out of Jerry Falwell’s and Pat Robertson’s law schools in judgeships.

Meanwhile, there are some quiet activities going on behind the scenes in which they are contacting individual science teachers and getting them to use ID/Creationist materials distributed to them directly from creationist outlets and websites. This presumably bypasses the quality control exercised by school boards and state boards of education.

And it delays the onset of lawsuits until the ID/Creationists have their legal arguments worked out and their people in place.

I doubt they can pull it off, but it’s going to cost taxpayers money to deal with them.

Thing of beauty.

“[B]y concluding that ID is not science, in addition to concluding that ID is religion, Judge Jones went farther than necessary.”

I neither agree with De Wolf, et al., that Judge Jones went farther than necessary, nor with what Tim Sandefur is (I think) saying, that Jones’ discussion of whether ID is science was dicta.

The critical finding, that teaching ID is impermissible teaching of religion, depends in turn on the finding that ID isn’t science. After all, the teaching of valid science in science classes is perfectly OK.

To show this, let’s hypothesize that a science teacher particularly enjoys teaching the general and special theories of relativity because she feels they demonstrate the grandeur of God. Religious motivation, certainly. But impermissible intrusion of religion into the classroom? Hardly.

Showing there was no *scientific* justification for teaching ID was a step along the way to reaching the ultimate holding in the case, that the only reason for teaching ID was as religious indoctrination.

Meanwhile, there are some quiet activities going on behind the scenes in which they are contacting individual science teachers and getting them to use ID/Creationist materials distributed to them directly from creationist outlets and websites. This presumably bypasses the quality control exercised by school boards and state boards of education.

It is also a good way to get fired. Two teachers have already been caught doing this. The headcase in Oregon lasted 2 weeks or so. Another guy announced his retirement at the end of the school year. School districts hate rogue teachers who try to push lunatic trash on students and expose them to bad PR and legal liability up the kazoo.

This is for public schools. Private schools have wide latitude to fry kid’s brains any old way.

raven Wrote:

It is also a good way to get fired. Two teachers have already been caught doing this. The headcase in Oregon lasted 2 weeks or so. Another guy announced his retirement at the end of the school year. School districts hate rogue teachers who try to push lunatic trash on students and expose them to bad PR and legal liability up the kazoo.

That’s good to hear. A local school district here in Michigan only told the teachers to stop doing it. In another case, the teacher is still proselytizing on field trips and is still employed. Go figure.

About this Entry

This page contains a single entry by Timothy Sandefur published on June 5, 2007 5:45 PM.

Chickens beat Columbus to the New World was the previous entry in this blog.

The US is Trying to Take Over The World is the next entry in this blog.

Find recent content on the main index or look in the archives to find all content.

Categories

Archives

Author Archives

Powered by Movable Type 4.361

Site Meter