Bogus Science in the Courtroom: A Consistency Check
If you didn't know, Scopes II (a.k.a. Kitzmiller v. Dover Area School Dist.) involves a decision by the school board in Dover, PA, to teach the theory of "intelligent design" in biology classes alongside the Darwinian theory of evolution. A group of parents has filed suit, alleging that the school board's plan would violate the Establishment Clause under the Supreme Court's decision in Edwards v. Aguillard, 482 U.S. 578 (1987).
We're not constitutional scholars, but surely the school board's position would be buttressed if "intelligent design" were shown to be a theory supported by reliable scientific methodology. That is presumably why the Dover school board has retained a biochemistry professor and "intelligent design" proponent, Michael J. Behe, to testify on its behalf.
Let us assume, then, that Prof. Behe will indeed opine that the theory of "intelligent design" draws reliable support from legitimate application of the scientific method. Will that opinion face a Daubert challenge? Such a challenge, if mounted, might place the trial judge in the awkward position of effectively adjudicating the merits of a hotly contested controversy in the context of an evidentiary ruling. But so much is true, of course, in many cases where the admissibility of expert testimony is contested.
If mounted, should a Daubert objection to such testimony be sustained? On its face, Prof. Behe's theory would seem to face an uphill Daubert battle.
Not wishing to be embroiled unduly in a debate over the scientific details -- a debate, in any case, in which we possess only the most dubious qualifications to participate -- we will abstain from any analysis of whether the theory of "intelligent design" has been subjected to empirical testing, except to wonder what evidence would be counted, by the theory's adherents, as falsifying it.
The theory does suffer, however, from a want of support in the published peer-reviewed literature. Prof. Behe has himself defended the theory in such periodicals as the New York Times, the American Spectator, and the Weekly Standard. He has also found a sympathetic forum for his views at the Discovery Institute -- a conservative redoubt. But refereed scientific publications have proved much less receptive, as Prof. Behe admits:
Much of the material shown posted as "responses to critics" on this website was originally submitted to several science journals for consideration for publication. In every case it was turned down.Prof. Behe chalks this up to a bias in favor of "orthodoxy" at peer-reviewed scientific journals. (Where have we heard that before?) In fairness, he also says "my experience with philosophy journals has been quite different." But of course the Dover school board is not proposing that the theory of "intelligent design" be taught as part of a unit in a philosophy course.
Do the methods employed by Prof. Behe have a known error rate? Are they subject to recognized standards governing their application? Maybe. But not that we can tell.
Does the theory of "intelligent design" enjoy general acceptance in the scientific community? Not by a long shot, as Prof. Behe would apparently concede. (He's fighting the "orthodoxy," remember?) The theory might fare better with the general American population. But it is the theory's popularity with parts of the general public that arguably creates the problem in the first place, insofar as the basis for that popularity is not scientific, but religious.
This brings us to a last consideration. In Kumho Tire, the Supreme Court urged that experts of all stripes should follow at least that degree of intellectual rigor prevalent in the routine practice of their specialties, outside the litigation context. Does the theory of "intelligent design" enjoy any normal scientific application -- say in facilitating empirical analysis of the detailed evolutionary process? Or is its sole natural habitat in the political arena, as an ideological adjunct to the religious right in the culture wars?
We intend that question seriously, not just rhetorically. Empirically serious proponents of "intelligent design" might well be quite curious, for example, about the frequency of divine intervention in the evolutionary saga. (One can imagine theological debates about whether an omnipotent deity would have the power to structure the physical laws of the universe in such a way that evolution might occur without further divine intermeddling -- and, if so, what evidence existed that the deity had chosen to proceed otherwise.) If divine assistance is necessary, as Prof. Behe contends, for "irreducibly complex" biological systems to develop, then it might be of interest to catalogue the instances in which new elements of "irreducible complexity" were introduced at various evolutionary stages. It is possible that somewhere, candidates for the Ph.D in "intelligent design" are pursuing just such investigations. But we doubt it. We suspect that the theory enjoys little currency, except in the context of essentially political efforts to repel the perceived cultural onslaught of nontheistic perspectives.
So should Prof. Behe's testimony come in? Our own general outlook on expert testimony is to favor a permissive approach, and to repose substantial trust in the trier of fact (in this case, the same federal judge who would rule on admissibility) to sort things out. But some species of expert evidence put our tolerant attitude to the test. Polygraph testimony is one example. And this, we must say, is another.
Perhaps there are readers, meanwhile, somewhere off our starboard ideological bow, who feel that "intelligent design" testimony should plainly come in. To them, we pose a question. Should the same result obtain, if an expert for a toxic tort plaintiff opines, based on no firmer methodological foundations than Prof. Behe's, that complex carcinomas cannot plausibly arise in humans except through industrial intervention?