Misstating Scalia: One Clear Instance (This One on Evolution)

There will be reams written about Justice Scalia. You could disagree with him (for the record, I have a fair number of times). But the main NPR story, picked up by lots of other sites, has a discrete but very clear error about his record that ought to be corrected before it becomes established. Nina Totenberg writes there:

On questions of separation of church and state, Scalia was a consistent voice for accommodation between the two, and against erecting a high wall of separation. When the court, by a 7-to-2 vote, struck down a Louisiana law that mandated the teaching of creationism in school if evolution is taught, Scalia was dismissive of evolution, calling it merely a "guess, and a very bad guess at that." [Referring to Scalia's dissent in Edwards v. Aguillard]

Scalia did not call evolution "a very bad guess." That was his characterization of what the Louisiana legislators who supported the balanced-treatment law believed. He recounted their belief in order to argue that they had "secular purposes" for supporting the law  (thus satisfying prong one of the Lemon v. Kurtzman test), not that their purposes reflected accurate beliefs. The paragraph containing the phrase "bad guess" is one of several paragraphs chock full of cites to the legislators' statements in the legislative record. Here is how Scalia introduced the paragraphs, followed by the relevant paragraph itself (emphases in original):

Before summarizing the testimony of Senator Keith and his supporters, I wish to make clear that I by no means intend to endorse its accuracy. But my views (and the views of this Court) about creation science and evolution are (or should be) beside the point. Our task is not to judge the debate about teaching the origins of life, but to ascertain what the members of the Louisiana Legislature believed. The vast majority of them voted to approve a bill which explicitly stated a secular purpose; what is crucial is not their wisdom in believing that purpose would be achieved by the bill, but their sincerity in believing it would be.

Senator Keith and his witnesses testified essentially as set forth in the following numbered paragraphs: ....

(2) The body of scientific evidence supporting creation science is as strong as that supporting evolution. In fact, it may be stronger. Id. at E-214 (Young statement); id. at E-310 (Sen. Keith); id. at E-416 (Sen. Keith); 2 id. at E-492 (Sen. Keith). The evidence for evolution is far less compelling than we have been led to believe. Evolution is not a scientific "fact," since it cannot actually be observed in a laboratory. Rather, evolution is merely a scientific theory or "guess." 1 id. at E-20 - E-21 (Morris); id. at E-85 (Ward); id. at E-100 (Reiboldt); id. at E-328 - E-329 (Boudreaux); 2 id. at E-506 (Boudreaux). It is a very bad guess at that. The scientific problems with evolution are so serious that it could accurately be termed a "myth." 1 id. at E-85 (Ward); id. at E-92 - E-93 (Kalivoda); id. at E-95 - E-97 (Sen. Keith); id. at E-154 (Boudreaux paper); id. at E-329 (Boudreaux); id. at E-453 (Sen. Keith); 2 id. at E-505 - E-506 (Boudreaux); id. at E-516 (Young).

It couldn't be clearer that Scalia was describing the legislators' views about evolution, not asserting his own.

One website had to correct this same misstatement a few months ago. NPR should correct it now.