Inexorably toward Trial: Reflections on the Dover Case and the "Least Dangerous Branch"

Article excerpt

SINCE THE Kitzmiller v. Dover case landed on my docket in December of 2004, I have had an astonishing, almost mind-bending odyssey. That I--a Republican, Bush-appointed judge and a Lutheran from Pennsylvania--accepted the Humanist Religious Liberty Award from the American Humanist Association last year is another step, I suppose, on that odyssey. Someone asked me if I thought my accepting the award might be taken the wrong way. I should point out that the Framers, in their marvelous work creating the Constitution, gave federal judges life tenure, and that's a great thing. But in a more serious vein, I think it's important for federal judges to get out and talk about what we do. To the extent that the federal judiciary is maligned and misunderstood, a lot of that is on us. So, I welcomed the opportunity to speak to such a distinguished group at the 2008 World Humanist Congress, and I thank them and the AHA for the honor of the award.

The day the Kitzmiller v. Dover lawsuit was filed I was driving home from my chambers listening to a local radio station, and they said that this big bombastic press conference had been held in the rotunda of the State Capitol in Harrisburg, Pennsylvania. It involved a lawsuit that had been filed by the ACLU, Americans United for Separation of Church and State, and a large firm in Philadelphia, Pepper Hamilton, against a school board in York County, Pennsylvania. It was filed in Middle District Federal Court (my court) as an establishment clause challenge to a policy involving intelligent design. And as I blissfully drove home I had two thoughts: one was that although I consider myself reasonably well read, I couldn't exactly remember having heard about intelligent design. And the second thought I had was, I wonder who's going to get that case? I went home and said to my wife, somebody's going to get that case and it's going to be really big.

Of course it landed on my docket. And up until the time I did the scheduling conference the following month (January 2005) I believed that through some suasion and through my efforts I could bring the parties to a settlement. But you could tell from their demeanor and their body language that the case wasn't going to settle, and I thought, well, now we're heading inexorably towards trial.

It is known by many that in the aftermath of deciding the Kitzmiller v. Dover case, I took some incoming fire by such luminaries as Bill O'Reilly, who called me a fascist. The Rev. Pat Robertson indicated that "this was an arrogant federal judge making an absurd decision" and opined that the community at Dover would likely be vaporized in a natural disaster. Phyllis Schlafly said, "this was an unintelligent rant about intelligent design by a federal judge." And the coup de grace was administered, I suppose, by Ann Coulter who devoted several pages of her book, Godless, to me. She said, among other things, "that we haven't had a First Amendment scholar near the bench like this since President Bush nominated Harriet Miers to be on the Supreme Court," so she didn't much like Harriet Miers apparently either.

But it was Phyllis Schlafly, in her criticism of me, who posited that because George W. Bush was elected president with the help of evangelicals and he had appointed me as a federal judge, that in rendering my decision in the Kitzmiller v. Dover case I had "stuck a knife in the backs of those who brought me to the dance." And of course, the necessary implication there is that federal judges need to get with the program, we need to please political benefactors, we need to take one for the team, where necessary, without any real regard for how we operate. And that was a common stripe in all of the criticisms by the punditry and it really drove me out of chambers and onto the speaking circuit. I knew by the time I decided the case that it had attracted attention, really not just across the United States but across the world, and I thought it was important to speak generally about some of these points. …