DARWIN IN THE DOCK.(Charles Darwin)

Courtroom battles about the teaching of evolution rarely have devoted much discussion to the science of evolution. This is partly because few working scientists have been willing to testify against evolutionary theory, and partly because judges have been reluctant to engage the heady question of what constitutes science. Even in the Scopes "Monkey Trial," of 1925, the judge, John Raulston, limited the issue at hand to whether John Scopes, a high-school teacher, had broken a Tennessee law against teaching "that man has descended from a lower order of animal." He refused to consider whether the law made any sense in scientific terms, and rebuffed efforts by the defense attorney, Clarence Darrow, to bring in an array of evolutionary scientists. In Epperson v. Arkansas, the landmark 1968 Supreme Court case in which a biology teacher named Susan Epperson successfully sought to overturn a state law banning the teaching of evolution, the trial in Little Rock lasted less than a day and did not include any scientific testimony. Edwards v. Aguillard, a 1987 case in which the Supreme Court struck down a statute requiring that creationism and evolution be taught side by side in public-school science classes, began in district court with a summary judgment against the Louisiana law, and thus had no testimony at all. Last spring, when the Kansas Board of Education held hearings on the teaching of evolution that were dominated by advocates of intelligent design, evolutionary scientists boycotted them, perhaps to their regret: in November, the Kansas board voted to include challenges to Darwinian theory in the state standards.

Nothing in the background of John E. Jones III--the judge who recently presided in a Harrisburg, Pennsylvania, courtroom over Kitzmiller v. Dover Area School District, the first case to test whether it is constitutional for public-school classes to present the argument of intelligent design--suggested that he would deviate from this pattern. Jones, who is fifty years old, was born in Pottsville, Pennsylvania. His family owns golf courses. In 1995, Tom Ridge, who was then the state's Republican governor, appointed him chairman of the state liquor-control board; in that post, he banned the sale of Bad Frog Beer, because its label shows a frog giving the finger. Yet the trial that Jones oversaw, which took place in a functional courtroom trimmed with teal and white panels, turned out to be rather like the biology class you wish you could have taken. Lawyers spent six weeks posing questions like "What is science?" and "Who was Charles Darwin?" Proponents of intelligent design--the argument that certain features of the natural world are so complex and intricately put together that they must have been deliberately fashioned--claimed that it was a bold new scientific idea that had been unfairly maligned. And scientists who believe that intelligent design is merely a repackaged version of creationism made a case for evolution that was thrilling in its breadth (evidence from homology, modern genetics, molecular biology, the fossil record) and satisfying in its detail (a recently excavated fossil of the oviraptor, a small carnivorous dinosaur of the kind that evolved into birds, depicts the creature brooding over its eggs like a hen).

The trial ended the first week of November. Jones has said that he will render his verdict by the first week in January, which is just before the ninth-grade biology students at Dover Senior High School are scheduled to start their unit on evolution. If Jones sides with the school district, the students will be read a four-paragraph statement casting doubt on the validity of Darwinian theory and touting intelligent design as an alternative. If Jones sides with the plaintiffs, he will establish the precedent that including intelligent design in a public-school curriculum represents a tacit endorsement of Christianity--thus violating the First Amendment, which states, in part, "Congress shall make no law respecting an establishment of religion."

During the trial, which did not have a jury, Jones sometimes joked, in his appealingly growly baritone, about all the science he and everyone else in the courtroom were contending with. One morning, he deadpanned that stopping for an early lunch break would allow for a "nice, long afternoon of expert testimony." After a few hours of instruction from Kenneth Miller, a biology professor at Brown University, Jones observed that his "friends in the jury box"--the reporters--looked "like they could use a little caffeine." When a lawyer for the plaintiffs, Witold Walczak, asked Miller how he would explain to his mother the microbiology he had just been laying out, Judge Jones chimed in, "Or me!" Jones has the rugged charm of a nineteen-forties movie star; he sounded and looked like a cross between Robert Mitchum and William Holden. (According to a local paper, the Judge's wife thinks that Tom Hanks should play him--a not entirely idle bit of speculative casting, since a representative from Paramount Pictures sat through the whole trial, filing dispatches to a potential screenwriter.) Despite his jokes, however, Jones not only allowed copious expert testimony but often seemed keenly interested in it, tilting his head toward the witnesses and raising his eyebrows in mild surprise. He seemed particularly engaged when Kevin Padian, a paleontologist at Berkeley, started showing slides of prehistoric animals--which he called, variously, "critters," "guys," and "paleozoic roadkill"--in order to illustrate that we have a lot of transitional fossils demonstrating the evolution of fish to amphibians and of dinosaurs to birds. And Jones clearly enjoyed Padian's remarks on the educational value of dissecting your Kentucky Fried Chicken (the pointy part of the wing shows where the individual digits of the dinosaur fused together in birds).

You sometimes hear it said that a courtroom is not a proper venue for debating science. In this case, it proved to be an ideal forum. For one thing, it allowed for the close questioning of Michael Behe, the Lehigh University biochemist who is the leading intellectual of intelligent design (and one of the movement's few working scientists). Under cross-examination by Eric Rothschild, a dogged lawyer for the plaintiffs, Behe conceded, for example, that a definition of science that could be expanded to embrace intelligent design could, by the same token, embrace astrology. And he was unable to name any peer-reviewed research generated by intelligent design, though the movement has been around for more than a decade.

The trial also allowed the lawyers to act as proxies for the rest of us, and ask of scientists questions that we'd probably be too embarrassed to ask ourselves. In a courtroom, you must lay an intellectual foundation in order to earn a line of questioning--and so the lawyers stripped matters neatly back to the first principles of science. Considering how often it is said that evolution is "just" a theory, for instance, it is clear that many people either do not know or do not accept the scientific definition of a theory. The lawyers for the pro-evolution side went to great lengths to make the point that, although all science is provisional, a scientific theory is a powerful explanation that unites a large body of facts and relies on testable hypotheses. As Padian testified, it is not "something that we think of in the middle of the night after too much coffee and not enough sleep."

Intelligent design is an argument by inference. If we walk down the beach and see the words "John loves Mary" in the sand--an example offered by the intelligent-design textbook "Of Pandas and People"--we can infer that someone wrote them. We can make a similar inference, the textbook claims, when we look at the inner workings of some of nature's niftier products. In intelligent design's precursor forms--the nineteenth-century arguments of the Reverend William Paley, for instance, who rhapsodized about the mechanics of the human eye--the implied author is clearly God. The modern version of intelligent design, however, declines to specify who the master designer might be. Behe and other advocates will freely admit that, for them, the designer of life on earth is the God of Christianity. (Intelligent design, Behe has written, is "less plausible to those for whom the existence of God is in question, and is much less plausible for those who deny God's existence.") But, conceivably, the intelligent designer could be space aliens or a time traveller from the future. It's hard to believe that any proponents of the idea actually believe this.