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Two Questionable Arguments, Part I

Prof. Althouse, discussing the recent decision of a U. S. District Judge John E. Jones III in the recent Kitzmiller v. Dover Area School District decision forbidding the teaching of intelligent design, takes a pot shot at activism of a sort that frequently causes me to shake my head. First, Judge Jones:

As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom. 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, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.

Says Professor Althouse:
I love that last part about who's the real activist here.

Now, having read the opinion, I rather agree that Judge Jones isn't acting in a particularly activist way with his ruling's latter half. He's applying the Lemon test in a fairly straightforward manner. (Whether the Lemon test is itself activist is another question, but hardly speaks to the nature of a district court.) The first half of Judge Jones ruling might be considered slightly more activist, but that's really neither here nor there. The real question is: why do we care about an "activist" school board?

There are endless debates out in the blogosphere--and in academia--about whether the popular term "judicial activism" is useful. (See, e.g., here.) But to the extent the term has meaning, it connotes something undesirable not because a judicial activist is an activist but because he's judicial. When someone is concerned about judicial activism, that person is not merely worried about the existence of politics in the world--unless he's an idiot, I suppose--but that representative politics are being subverted by unaccountable judges perverting texts through "interpretation," particularly where such interpretation can only be overruled by supermajorities. A school board, on the other hand, is more like a mini-legislature that passes instructions then carried out by others. If a democratic polity and its elective representatives believe that a constitutional imperative has been misconstrued, this is precisely where activism should be: in a politically accountable branch subject to removal by voters. The political arena allows them to settle large and divisive societal disputes in a way that is more likely to be seen by the losers as legitimate.

Which makes me wonder about the parallel Judge Jones uses and particularly Professor Althouse's ringing endorsement. There is much to be said about the behavior of the school board in this case, but to accuse an elected panel of activism is sort of like accusing a law student of studying. It's what they're supposed to do, right?


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