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

From: David Opderbeck <>
Date: Tue Feb 28 2006 - 09:35:21 EST

Thanks Ted. The vagueries of email. Sorry I misinterpreted.

Cris -- I'm not sure I would put it exactly that way. In my view, Judge
Jones could have reached the same conclusion under the existing
establishment clause jurisprudence without the lengthy discourse on
"science." I don't think anything in the *Aguillard* line of cases required
that; in fact, once he found that the Dover board's intent was to sneak
scientific creationism in under the mantle of ID, I think Judge Jones could
have cited *Aguillard* on motive and been done with it. I do think the
Supreme Court's establishment clause jurisprudence is flawed generally, not
just in the creationism cases -- I think the Court has understood the
establishment clause too broadly and the free exercise clause too narrowly
-- but obviously Judge Jones is not in a position to change that.

On 2/28/06, Ted Davis <> wrote:
> >>> "David Opderbeck" <> 02/27/06 9:57 PM >>>writes:
> *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.
> ***
> Ted replies:
> David, I am sorry you had the impression that I meant this as a dig. I
> did
> not. I thought and still think my post was cordial and respectful of your
> views. I write about some things at great length (for this medium), and
> the
> fact that you wrote your opinion at length only reflects your very strong
> interest in this issue--and your obvious competence to comment on it. I
> used that wording about not following your precedent just as a humorous
> way
> (I thought) of stating my wish not to go further on this myself. The
> words
> were meant to be a joking reference to the exchange of opinions about the
> law and precedents, etc. That's all.
> Again, sorry for giving you the wrong impression.
> Ted
Received on Tue Feb 28 09:36:26 2006

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