Celebrating the Arrangement of Deck Chairs On the Titanic
I am rather amused by the celebrations of the Darwin Only lobby over the decision in Dover v. Kitzmiller. They also seem perplexed that the people who are challenging Darwinian fundamentalism are not more distraught over the decision. I am not terribly troubled by it, and I liken Judge Jones' opinion to the work of a deck hand on the Titanic straightening the lounge chairs.
First of all, the opinion is poorly reasoned and, as discussed before, relies on simplistic stereotyping and conspiracy theories for support. The bad logic does not end there, but it is not worth my time to demonstrate other weaknesses. Jones is a single, unremarkable district court judge, and his decision is not controlling outside his district.
The bigger reason why the opinion does not matter much is the new make up of the Supreme Court. The way that the Establishment Clause of the Constitution is interpreted is likely to undergo big changes now that Samuel Alito has replaced Sandra Day O'Conner. She was usually the swing vote on such cases and used an "endorsement" standard that often ignored the "Lemon" test. Now that she is gone, it is almost certain that Kennedy, Roberts or Alito would be the swing vote. As discussed previously, Kennedy supports a very different "coercion" test, which could make it much harder to show a violation. In any case, I think it is very likely that obsessing over the subjective intent of the government officials will play a much less important part of the analysis. We shall see.
I anticipate that the Lemon test, and perhaps the "endorsement" test, are headed the way of the Titanic. The sooner the better.
Recently the New York Times agreed with my earlier comments:
That leaves Justice Anthony M. Kennedy as the court's new fulcrum.
"We changed from a court split 4 to 3, with two in the middle," said Richard Epstein, a law professor at the University of Chicago, referring to the dual swing votes of Justices O'Connor and Kennedy. "Now it's 4-1-4, and now it's Kennedy."
And the Washington Post had this to say:
Conservatives hope the cerebral and relatively young Roberts and Alito will join Thomas and Antonin Scalia to form a long-lasting right-of-center bloc that will frequently attract at least one other justice -- possibly centrist Anthony Kennedy -- to overturn liberal rulings on church-and-state questions, property rights, and many other issues.
"I think their persuasive abilities as conservatives will have an effect on the court as a whole, particularly and hopefully on Justice Kennedy," Sen. Lindsey O. Graham (R-S.C.) said in an interview moments after the vote confirming Alito.
Of course, the new justices do not even need to have an effect on Kennedy for there to be big changes.