IF HISTORIANS ARE WONDERING, it’s safe to say that the trial of Tammy Kitzmiller et al. v Dover Area School District et al. — the first lawsuit in the country brought over the introduction of “intelligent design” as an alternative to evolution — was pretty much over when a plaintiffs’ attorney summoned the specter of Dr. Evil.
It was the morning of last November 4th. Steve Harvey, a partner with the Philly law firm of Pepper Hamilton and part of the team representing the 11 parents suing the Dover School Board, was in a Harrisburg courtroom, cross-examining Scott Minnich, a professor of microbiology at the University of Idaho and one of the few working scientists who support intelligent design.
Harvey, a snappy dresser whose intensity can sometimes border on the feral, had come up with an effective — if impudent — way to illustrate some of the more absurd aspects of intelligent design, which holds that certain features of the natural world are best explained by an “intelligent” cause, not natural selection. Specifically, he wanted to address the refusal of ID’s supporters to identify who the “intelligent designer” is, lest the concept be considered synonymous with creationism. Harvey decided to make fun of the whole thing.
“Does intelligent design tell us when the intelligent designer designed and created life and living things?” Harvey asked Minnich.
“No,” Minnich replied.
“Does intelligent design tell us how many designers there are? Is it just one, or could it be more?” asked Harvey.
“It could be more,” Minnich replied, which Harvey took as an invitation to be even more of a wiseass.
“So it could be a whole family of designers, right?” he said.
“I suppose so,” replied Minnich.
“It could be competing designers,” Harvey gleefully proposed. “We could have one designer who’s designing good things, and another designer who’s designing bad things, right?”
“I don’t — yeah, what’s your point?” asked Minnich.
“Well,” said Harvey, “does intelligent design tell us whether there could be multiple designers?”
“No, it doesn’t.”
“So it’s possible,” said Harvey, “that there is an evil designer, isn’t that true?”
Invoking an entirely fictional criminal mastermind is not, perhaps, the most orthodox legal strategy for winning the biggest case of your life. And months later, as he sits in a Center City diner waiting for his cheesesteak to be served, Harvey does admit to some regrets. “I chickened out,” he says. “Originally, I thought about actually making the gesture, too.” Then, in silent homage to the archenemy of Austin Powers, he lifts his outstretched pinkie to the corner of his mouth.
AMERICAN COURTROOMS AREN’T PLACES WHERE ONE USUALLY ENCOUNTERS HAPPY ENDINGS. American courtrooms, in fact, are not usually found within a day’s drive of happy endings. Even when the worthy score an unambiguous victory, lawsuits seldom produce anything approaching a sense of satisfaction; the tiny drops of triumph have long since been diluted by time or money or competing claims on glory. To paraphrase Oliver Wendell Holmes Jr., there’s a reason it’s called a court of law — and not a court of justice.
Dover was different. In the end, it was less a trial than a celebration of good sense. The bumptious, venal school board members who’d engineered the intelligent design policy were exposed as bumptious, venal liars. The intelligent design movement didn’t fare any better. Witness by witness, the concept was torn down, ground up, revealed for what it is: a political movement dressed in a lab coat. By the time Judge John E. Jones III issued his ruling, the only question was how bad the smackdown would be. (Answer: Really bad.) “The breathtaking inanity of the board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial,” Jones wrote. The decision wasn’t just a win for the parents who’d sued; it was a small bit of solace for anyone who would like to think this country is more complicated — and smarter — than it sometimes seems, a triumph of messy moderation over tidy extremism, of honest inquiry over righteous certainty, of charity over purity. That it was a churchgoing Republican judge appointed by an evangelical president who decided the case didn’t merely underscore the point. It was the point.
And yet nobody, not even Jones, personified this virtuous mess more than the two Philadelphia lawyers responsible for the trial’s most compelling moments: Eric Rothschild and Steve Harvey. Smart, weird, funny, the two Pepper Hamilton partners and plaintiffs’ attorneys were neither hired guns (they took the case pro bono) nor creatures of the culture wars (Rothschild’s a Democrat, Harvey a Republican). They are, in fact, archetypically normal — in the best sense of the word — American guys, the sort who, prior to Dover, did their jobs for years with quiet competency; who still talk about how cool it was to wake up every morning during the trial and see their names printed in the local paper; who brought their wives and kids and parents to see them argue the case. And, of course, who loved nothing more than injecting an Austin Powers reference into the 21st-century version of the Scopes monkey trial.
IT’S A MONDAY EVENING IN EARLY MARCH, and Rothschild, 39, is standing at the podium inside a puke-yellow lecture room at Penn’s Museum of Archaeology and Anthropology. Since Judge Jones’s decision came down, Rothschild and Harvey, 46, have been traveling the country, speaking about the Dover case. They have a good stump presentation; it’s fast and interesting and uses a lot of cool visual aids. It also effectively communicates the duo’s inability to take themselves all that seriously.
At one point during the talk, Rothschild mentions that Paramount Pictures sent someone to take notes on the proceedings. “The legal team would often play the game of which actor would play which person in the movie,” says Rothschild, whose short stature and balding head make him seem like a manly version of Sex and the City’s Stanford Blatch, or a cuddly version of Ari Fleischer. “What’s interesting is that there was virtual unanimity that Clooney would play me,” he deadpans.
For all of Rothschild’s wisecracks, there really is something cinematic about the duo. When they’re together, they look like a cliché buddy movie come to life: Legal Weapon, maybe. While Rothschild is short, round and dark, Harvey is tall and angular, with a head of silver hair. Next Halloween, he might want to think about going as a bullet. The effect extends to the two men’s personalities. Rothschild is all good humor and unassuming smarts, while Harvey tends to burn with energy.
Beneath their irreverence, however, both men are committed to their work. Rothschild first waded into the evolution debate in 1999, when the Kansas Board of Education, an elected body then dominated by evangelical Christians, deleted the teaching of evolution from the state’s science curriculum. At the time, Rothschild, who joined Pepper Hamilton in 1994 after graduating from Penn Law School, was working on product liability and commercial litigation, but the Kansas board’s decision touched a sensitive nerve regarding his views on the separation of church and state. A practicing Jew, a product of public schools and the son of a former federal government employee (his father worked for the CIA), Rothschild had long believed that the boundary between the two represented the most important of constitutional questions. “It’s the issue that I personally take most seriously,” he says. Indeed, one of his favorite quotes, which he uses in almost every presentation he gives these days, comes from a Supreme Court decision written by former Justice Sandra Day O’Connor. “Why would we trade a system that has served us so well,” wrote O’Connor, “for one that has served others so poorly?”
It’s a question that apparently never occurred to the Dover Area School Board. If it had, perhaps the town, a small community 35 miles from Lancaster, would not have gone completely bat-shit crazy. It began in early 2004, when several board members voiced concerns about the district’s science textbooks. Most outspoken was William Buckingham, a former prison supervisor who fumed that one book in particular, the ninth-grade text Biology, was “laced with Darwinism” and should be “balanced” by something else. He was just getting started. At a school board meeting a couple of months later, Buckingham allegedly told his colleagues, “Two thousand years ago, somebody died on a cross. Can’t someone take a stand for him?” Then, that October, the board voted 6-3 in favor of adding this statement to the district’s curriculum: “Students will be made aware of the gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, Intelligent Design.” A month later, the board required another statement to be read to all ninth-grade biology classes, this one asserting that evolution is “not a fact,” and again referring to intelligent design as an alternative.
By then, the ACLU — which had repeatedly warned the Dover board that its policy might as well be titled “Please Sue Us!” — was proposing a lawsuit on behalf of 11 parents from the district. The group Americans United for Separation of Church and State and the National Center for Science Education had also joined the case, but everyone involved realized that the matter demanded the resources of a high-powered law firm. That’s when Eugenie Scott, executive director of the NCSE, had an idea. Years before, in the wake of the Kansas school board controversy, Rothschild had contacted her, offering his help. When Scott asked if he, and Pepper Hamilton, would be interested in taking on the Dover case, Rothschild responded, “I’ve been waiting my whole career for this case.”
As the lead attorney, Rothschild — along with the ACLU’s Witold “Vic” Walczak and Americans United’s Richard Katskee — plotted the plaintiffs’ strategy and organized the legal team’s efforts: who would depose whom, what experts to call. Rothschild also decided to ask a friend and Pepper colleague, Harvey, to help him try the case. Years earlier, the two had worked together on some highly technical cases, and Rothschild respected Harvey’s courtroom skills and brains.
FROM THE OUTSET, THEY HAD ONE CONSPICUOUS ADVANTAGE OVER THE OTHER SIDE: The defendants were idiots. This became obvious almost immediately. In early 2005, Rothschild and Harvey traveled to Dover to take depositions of several board members. Afterward, they realized that the board members’ stories — particularly about the most controversial elements of the case, such as whether they had originally talked about including a mention of creationism rather than intelligent design — matched up very neatly. To Harvey and Rothschild, this could mean only one thing: Some of the board members weren’t telling the truth. Beyond being slimy, such behavior was astonishingly bad legal strategy. When the truth came out at the trial, the members looked like they were trying to hide the fact that they wanted to promote intelligent design for religious, rather than educational, reasons, which of course they did.
It wasn’t the only time deceit was exposed. Three weeks into the trial, Harvey cross-examined board member Buckingham, who repeatedly said he’d never used the word “creationism” when talking about the need to “balance” evolution. In response, Harvey cued up a videotape in which Buckingham told a reporter for the local Fox affiliate: “My opinion, it’s okay to teach Darwin, but you have to balance it with something else, such as creationism.” Just to make sure everybody got it, Harvey played the video twice.
But if Harvey laid claim to the trial’s Perry Mason moment, Rothschild was the one called upon for the case’s most important showdown — the cross-examination of Lehigh biology professor Michael Behe, intelligent design’s leading intellectual. A devout Catholic with nine kids, Behe looks like the archetype academic. Short and balding, with gray hair, a beard and owlish glasses, he could have come out of the womb wearing a tweed jacket and smoking a pipe. His singular contribution to intelligent design came in his 1996 book Darwin’s Black Box, in which he coined the term “irreducible complexity” for the assertion that some elements of nature are too complex to have been produced by random mutation and natural selection.
Behe was the linchpin of the claim that ID represents a legitimate scientific theory. It was Rothschild’s job to nuke that notion. He did so by pointing out how lame and insular the intelligent design movement is. “This is an idea that actually explains very little,” Rothschild says now. “There is no positive argument.” In what was probably the most memorable exchange of the trial, Rothschild had Behe repeat a claim he’d made previously: that there is no peer-reviewed literature adequately explaining the evolution of the immune system. This may seem an esoteric point, but it’s crucial to the credibility of intelligent design. The concept, after all, depends on the notion that if something can’t be explained by evolution — like, Behe claims, the immune system — we can infer that it has been “designed.” After hearing Behe state this claim once again, however, Rothschild unveiled what he calls his Miracle on 34th Street defense. He piled 58 peer-reviewed articles, and nine books, in front of Behe as he sat on the witness stand. All of them discussed the evolution of the immune system.
It was the biggest moment of Rothschild’s career, and it’s telling that he can’t even pretend it wasn’t a huge deal. Though his wife and kids attended several days of testimony, even his parents came up from Washington, D.C., to watch him combat Behe. Weeks later, when the New Yorker published its piece on the trial, the accompanying illustration depicted the cross-examination scene. “My parents were like pigs in slop over that,” says Rothschild.
In late December, when Judge Jones issued his opinion, the defeat for Dover and ID was absolute. He ruled that the introduction of intelligent design into the classroom violated the separation clause of the constitution, and that ID was manifestly “not science.” He saved his harshest words for the Dover board.
“The citizens of the Dover area were poorly served by the members of the board who voted for the ID policy,” he wrote. “It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again cover their tracks.”
After the verdict, Rothschild appeared on The NewsHour With Jim Lehrer. Harvey turned up on Lou Dobbs. Then they went to a bar.
JONES’S VERDICT HAS BEEN CRITICIZED BY ALL THE USUAL SUSPECTS. Bill O’Reilly, on temporary leave from fighting the war on the war on Christmas, called the decision “insane.” Richard Land, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, said Jones — a Bush appointee — epitomized “a half-century secularist reign of terror.” Jerry Falwell called Jones an “extremist.”
All that bluster is a reminder that the battle over intelligent design isn’t going away. In Georgia, a lawsuit has been filed over the Cobb County District School Board’s decision to affix stickers to science textbooks telling students that “evolution is a theory, not a fact, regarding the origin of living things.” In recent months, there have been efforts in California, South Carolina and Missouri to undermine the teaching of evolution.
But if one side has pinpointed a new bogeyman in Jones, another has chosen to see the case through a different prism, and has greeted the Dover plaintiffs and their lawyers as heroes. Since the decision, Rothschild and Harvey have become a sort of anti-intelligent design road show, explaining how they won to everybody from the Wilmington Rotarians to the University of Kansas, where the state school board has repeatedly challenged the primacy of evolution.
At first, the attorneys didn’t know what to expect when they addressed such forums. But they’ve since realized that the people who come to hear them speak don’t consider them godless heathens. This constantly surprises them.
And it’s part of the reason why, rather than retreat from the glare that the decision has brought them, the two have embraced it. They could, it seems, talk about the case forever. “Our wives,” says Harvey, “are really sick of hearing about it.” The notoriety, in fact, has been much less difficult for them than going back to the daily grind, the ho-hum world of complex commercial litigation and reinsurance law. These are not sexy topics. These do not get your name in the paper. They do not involve fights over faith and God and science. And every day, as the case slips a little farther into history, Harvey and Rothschild miss it a little more. They miss its intensity and camaraderie. They even miss the hellish schedule — they often worked a full eight hours or more after the day’s testimony had concluded — and the hardship of living together, frat-house-style, in a Harrisburg apartment. When is the last time the Vatican and the president of the United States weighed in on your office project?
There have been other, less conspicuous — if no less profound — consequences. Harvey is a lifelong practicing, if not dogmatic, Catholic, and his exposure to the reams of scientific knowledge he was forced to learn for the case made him think about — rethink, really — the role of faith and spirituality and science, particularly in his own life. And probably not in a way that Falwell, Robertson and the rest would imagine. The experience has convinced him, more than ever, that there is a God.
“Listen, I think intelligent design is cheap,” he says. “It’s not worth a warm bucket of spit. It posits the idea of God as a master tinkerer, as if there’s a guy with a long white beard up there designing DNA. That’s just ridiculous. But you start realizing that evolution, which Darwin helped us figure out, is so incredible. And so you wonder, ‘What’s behind that?’ There is this world unfolding right in front of us. What does it mean? I definitely think it means something.”
Harvey isn’t the only one focusing on the big picture. In early April, he and Rothschild appeared in front of the National Academies of Sciences’ Committee of Science, Technology and Law. The academies are headquartered in an austere stone building on Constitution Avenue in Washington, D.C., a few hundred yards from the Vietnam Memorial, and the committee is made up of some outrageously smart people: a former dean of Duke Law, a federal judge, the first woman to be secretary of a branch of the armed forces. Rothschild and Harvey were appropriately intimidated. As they waited their turn to speak, Harvey found a patch of marble upon which to pace back and forth, intently rehearsing what he was going to say. Finally, the duo gave a 45-minute presentation, then opened up the floor for questions. Considering the audience, they were prepared to talk about some of the more technical and cryptic aspects of the lawsuit. But that’s not what happened. “I just want to thank you guys for taking on this case,” said the first questioner, “as a scientist, and as a member of civil society.”