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Of Dover and Design

Judge John E. Jones III

John E. Jones III '77 during a panel discussion on civic life that also featured Lisa Jackson, the 2013 Rose-Walters Prize recipient, and Joe Sestak, the 2013-14 Omar Bradley Chair. Photo by Carl Socolow '77.

The following Q&A with Judge John E. Jones III ’77, in which he discusses his decision in the Dover v. Kitzmiller case, first appeared in the spring 2006 issue of Dickinson Magazine.

U.S. District Judge John E. Jones III ’77 found himself at the center of the culture wars in late 2005, when he presided in Harrisburg, Pa., over Kitzmiller v. Dover Area School District. The case was the nation’s first legal challenge to intelligent design—which posits that life systems are so complex that natural selection can’t explain them. The lawsuit was brought on behalf of parents in the York County school by the American Civil Liberties Union and Americans United for the Separation of Church and State, an organization led by Barry Lynn ’70. The plaintiffs asserted that the Dover School Board violated church-state separation when it ordered students to listen to a statement promoting intelligent design as an alternative to evolution. Jones struck down the teaching of intelligent design on Dec. 20 in a decision that severely took the Dover School Board to task. In January the judge, who will receive an honorary degree and be Dickinson’s Commencement speaker on May 21, discussed the case with Sherri Kimmel, editor of Dickinson Magazine.

I understand that early in your career you worked with a Dickinsonian who was a judge, Guy Bowe ’40. What did you learn from him about running a courtroom?

To have an evenhanded demeanor, to treat everybody in a way that’s civil, to provide access to the court system, that judging is a great profession. He really inspired me to want to become a judge. And that’s really all I wanted to do. Now, I took detours. I ran the [Pennsylvania] Liquor Control Board and ran [unsuccessfully] for public office, but my overarching goal was always to be a judge, and I can’t think of a better thing to be doing. To have achieved a federal judgeship is a remarkable thing in terms of what I thought that I could do coming out of a small town [Pottsville, Pa., where he still lives] and a relatively small-county environment. So I feel very blessed, that I had the opportunity to do this. I very frequently wish that Guy Bowe [now deceased] could see me.

So what do you think Guy Bowe would have thought of your 139-page Dover decision?
I hope he would have liked it. It’s very difficult to know how he would have analyzed the opinion. I’m certain that he would be proud of how I ran the courtroom. I got a great deal of cooperation from the lawyers, from the spectators. There was appropriate decorum. And so I think he would probably look at that before he looked at the opinion.

Much has been made in the media of the wit and humor that you displayed in the courtroom. What is the role of humor in the courtroom?
Well, your personality is what it is. And I see everything, generally, in a fairly funny light. As I said to folks during the trial, there is a fine line between good humor in the courtroom and My Cousin Vinny. I find that the courtroom is an entirely stressful place. There’s a lot of combat that goes on amongst the attorneys, and a quick quip or an aside will tend to almost act like a blow-off valve and make people feel less contentious, less stressed.

We were talking a moment ago about The New Yorker piece and the Harper’s piece about the trial. Were you surprised at the media attention that accompanied this case?
Oh yeah. I knew from the inception that it was going to attract attention. I had no idea that it was going to attract the attention that it did. When I went on the bench the first day of the trial I remember looking around the courtroom and I thought, “Oh my,” because the jury box was full of press. We were wall to wall in the back. Most times we labor in relative obscurity in the courts. If we have interested parties and a spectator or two, that’s a lot. Every day the courtroom was packed with spectators and press. I think the decision made the front page of virtually every paper in the United States on the 21st of December. And it continues, because last Sunday, if you read The New York Times Magazine, William Safire dissected some of my language—“breathtaking inanity” [how Jones described the school board’s policy]. And it was OK … although he did take issue with the fact that I used “which” in place of “that;” I always get the two mixed up.

Well, I guess some people transpose it as “breathtaking insanity.”
That was his point, exactly, that some people said insanity, and he said there’s a difference between inanity and insanity, and there is. I didn’t mean insanity. I meant what I said—inanity.

Back on that New Yorker piece. Margaret Talbot described you as looking like a rugged 1940s movie star, a cross between William Holden and Robert Mitchum. How did that fly with you?
Well, my wife had said that she wanted me to reduce the size of my head after that. You know, it’s great to get that kind of praise. They also had a poll that they took during the trial, because Paramount is looking to do a movie about it, about who would play the judge. And that ranged from Alec Baldwin to Tom Hanks. That’s all in great fun.

Whom would you choose?
I said during the trial that I would probably choose Hanks over Baldwin, and I don’t know why, necessarily. But the Holden/Mitchum thing was pretty hilarious.

The other thing that was really funny was that Wired magazine named you one of the 10 Sexiest Geeks.
By that point the press had reached a certain crescendo and, you know, what could I possibly say about something like that? I’m having this temporary honeymoon, I guess, with the science community because they liked the decision. So I attribute it to that.

It was interesting, in December of 2004 I was actually down at Americans United interviewing Barry Lynn ’70 [executive director of the group that helped bring the case]. It was the day the case was announced. Do you think that it was purely coincidental that two Dickinsonians were in the forefront of this case, or is it something about …
Well, I think that speaks well for our alma mater. I tell people that there really is no substitute in my line of work, and perhaps in Barry’s, for a good, broad-based liberal-arts education. And federal judges, we sometimes say, are the last of the great generalists. On any given day, there’s any number of disciplines that we may have to access in order to make decisions. We become temporary experts, as I did during this trial, in areas like paleontology; it could be biology; it could be any area of science; it may be accident reconstruction. And having a good liberal-arts education, as I certainly received at Dickinson, and Barry did, too, is so helpful. It makes you much more curious, inquisitive, analytical, and those are all things that you bring to bear as a federal trial judge. So I don’t think it’s a coincidence that you have two individuals who received a good liberal-arts education in the mix in this type of a case.

One of the things that Barry said to me—before we knew that you were going to be the judge—was that this case could be the death knell for intelligent design. Do you think that it is?
It would be inappropriate for me to venture an opinion about that. I’ve been accused since the opinion has been written, by intelligent-design proponents, of having some agenda to extinguish intelligent design. That has nothing to do with my decision. My decision is based on the facts as I found them at the trial, and the law and precedent of the Third Circuit and the Supreme Court of the United States. I have no agenda. I can’t have an agenda. And where intelligent design goes from here is not for me to speculate about. I said in the decision that I didn’t think that anybody was in a better position [than Jones] to decide whether intelligent design was science or not. Some of the commentators who were against my decision, in some ways deliberately misunderstood or misrepresented what I meant by that, as if to say that I’m so brilliant that I can make that call. What I meant was having sat for six weeks and having listened to endless expert testimony, I thought it was incumbent upon me to make that call as part of my decision so that we wouldn’t have this litigation replicated someplace else and another school board wouldn’t be exposed to the high fees that this school board exposed itself to. So I felt that I would be remiss if I didn’t address that question. Reasonable people will differ about these things, and it’s not in my hands now.

Why is it so important for the judiciary to maintain the separation of church and state?
Well, the law says that we have to apply certain tests when these cases come up, and they are difficult cases—emotional and contentious. There are scholars who believe that the separation of church and state is not a part of the fabric of the Constitution and that we were reading something into the Constitution which doesn’t exist, particularly as it relates to the states. There are scholars who believe that it only pertains on a national level and, therefore, in this case, a school board would not be so constrained by the Constitution. I am a district court judge, applying precedent. Whether I agree or disagree with the tests that the Supreme Court of the United States has created for cases of this type is of no moment. What’s important is that we follow precedent. If and when a case involving an establishment clause goes to the Supreme Court of the United States, and inevitably another one will, if they decide they want to change those tests and alter the way we look at establishment-clause cases in the realm of the separation of church and state then, of course, the Supreme Court is free to do that.

You mentioned that those who disagree with your decision thought you might have an agenda. You are a lifelong Republican, and people expected you to decide the case differently because you are a Republican. Is it annoying that people think your party affiliation should, would influence …
You know, I’ve been around politics long enough to know that people typecast you. And so I was more amused by it than anything else. It doesn’t give you much credit, though, does it? We all have the ability to think for ourselves. Phyllis Schlafly wrote a brutal column; it was—in print at least—the worst shot that I took. What Phyllis Schlafly said, in effect, was that George Bush was elected by evangelical Christians, John Jones was appointed by George Bush and, therefore, he should disregard precedent and decide the case in a way that is inconsistent with the law. That’s red meat for those who disagree with the decision. And, as I said earlier, it totally overlooks the realm of precedent and what I must do as a trial judge. I’m a life-appointed Article III judge. There is a certain wisdom to what the founding fathers did when they made us somewhat immune from the fear of being removed simply because someone disagrees with our decisions.

It’s 80 years now since the Scopes trial [that debated the teaching of evolution in public schools], and it’s become a part of the fabric of American history, literature, culture. Do you anticipate that this decision will have a similar longevity?
I don’t know. The Scopes trial was obviously perceived at the time as a monumental thing. The fact that it has resonated through the years, I’m not sure anybody could have predicted at that time. Will this resonate the same way? If there’s a subsequent case that goes all the way up to the Supreme Court perhaps it will eclipse this. In terms of the sort of culture war that occurred here, it’s a pretty good story, and that may resonate through the years. It was a unique conflict, and that may have some historical legs, but it’s impossible to know.

Published March 23, 2006