Re: Judge Jones discusses his opinion in Kitzmiller v. Dover

From: David Opderbeck <dopderbeck@gmail.com>
Date: Mon Feb 27 2006 - 21:57:21 EST

*I'll grant however that if we operate with a different implicit or explicit
definition of "conservative," then we may well reach different conclusions
about how that term applies to this case.*

Fair enough. I view judicial conservatism as doing only that which is
necessary to decide a given case or controversy. That, Judge Jones did not
do. Whether a party "requests" something is irrelevant. Parties regularly
"request" all sorts of things that "conservative" judges, as I use the term,
regularly ignore. Courts don't exist to adjudicate political, cultural or
social issues even if the parties request that they do so.

*You've written at length about this, and I don't want to follow your
precedent in that regard*

Is that kind of dig really necessary? You brought it up again, not me.

On 2/27/06, Ted Davis <tdavis@messiah.edu> wrote:
> We do disagree on this, David.
>
> When existing precedents, esp Judge Overton's decision in McLean vs
> Arkansas Board of Education, spell out that "creationism" cannot be taught
> b/c it is religion and not science; when both the plaintiffs and the
defense
> in Kitzmiller vs. Dover both insist that a similar issue (whether or not
ID
> is science) is the key issue in the whole case; and when the judge does
not
> go beyond the testimony presented to him and the established precedents
> about science education; then I think it is entirely reasonable to call
this
> a "conservative" decision.
>
> Perhaps it was "unnecessary" for him to rule on that issue, David, but
> surely it was both expected and requested--my emphasis on the latter as
much
> as the former.
>
> I'll grant however that if we operate with a different implicit or
explicit
> definition of "conservative," then we may well reach different conclusions
> about how that term applies to this case. You've written at length about
> this, and I don't want to follow your precedent in that regard,
>
> My best wishes,
>
> Ted
>
>
> >>> "David Opderbeck" <dopderbeck@gmail.com> 02/27/06 8:51 PM >>>
> I'm sorry Ted -- though I think you're right that this wasn't an
> "activist"
> ruling, I think you're dead wrong about it being "conservative." It was
> not
> an "activist" ruling because the ultimate conclusion was in accordance
> with
> settled law. However, as we've discussed here on the list ad nauseum, it
> was
> entirely unnecessary to rule on what constitutes "science" under the
> governing law, and that part of the ruling was neither "conservative"
> nor paticularly adept in light of the larger debate about the history and
> philosophy of science.
>
>
Received on Mon Feb 27 21:58:35 2006

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