Darwin's Defender

If not for Eric Rothschild, students in Dover, and perhaps across the country, would be learning intelligent design as well as evolution

Published in 2006 Pennsylvania Super Lawyers — June 2006

The man who saved science from religion never even liked science. As a student at Duke, Eric Rothschild avoided these courses as best he could, taking only those required to graduate. But as the lead counsel in Pennsylvania’s landmark intelligent design case, Rothschild displayed enough mastery to keep retooled creationism from being taught in the classroom as scientific theory.
Rothschild, a partner with Pepper Hamilton, represented a group of 11 parents who sued the Dover school district to prevent the teaching of intelligent design in high school biology classes. It was the first case to test the constitutionality of presenting the idea — which posits that the complexity of biological life proves the existence of a supernatural intelligent designer — in a public school curriculum. The case, known as Kitzmiller v. Dover Area School District, was the sequel to the 1925 Scopes Trial, which banned a Tennessee schoolteacher from teaching evolution. If that was the Monkey Trial, this was the Bacterial Flagellum Trial. The complex nature of the case played to Rothschild’s strengths, even with its scientific underpinnings. He not only scored a critical victory for science but won the case of a lifetime. 
Rothschild enters a conference room on the 25th floor of Pepper Hamilton’s Philadelphia offices on Logan Square. Clutching an armful of books and clad in a tan sport coat, plaid shirt and gray slacks, the 39-year-old looks like an earnest Ivy League academic. He stands 5 feet 5 inches, maybe 5 feet 6 in loafers, and has an easy, gap-toothed grin.
A favorite amusement among his colleagues is to speculate who should play him in the film version of the trial. A movie is not altogether fantasy, considering that Paramount Pictures announced in March that Ron Harwood (The Pianist screenwriter) will write a script about the case. Rothschild, who possesses a quiet charm, a razor wit and a ready laugh, insists George Clooney should get the part. “Everybody thinks that!” he says with a chuckle.
That he maintains Hollywood’s top talent should play him reveals — beyond his sense of humor — a realistic sense of the case’s significance, one he is not shy to point out. “We put on a helluva trial,” he says. “I’m proud of that.”
Rothschild has primarily handled commercial litigation since graduating cum laude from University of Pennsylvania Law School in 1993 and joining Pepper in 1994, though he had been involved with several science-related and religious-freedom cases previously. So when he learned about the Dover case through his involvement as a member of the Legal Advisory Board of the National Center for Science Education (NCSE), it was not completely out of character for him to volunteer his services. He immediately recognized the case’s significance. “This trial was steeped in history, running along the fault line for the separation of church and state,” he says. “This is the kind of case when I was 22 in law school I dreamed of doing.”
He knew learning the science would be challenging — “You can’t fake it”— and he would have to “bulk up” his knowledge of constitutional law. Backed by Pepper, a multi-practice firm with 400 attorneys in 10 offices committed to pro bono work and complex cases, he jumped right in. “That’s what we bring as our greatest added value — we do big, complicated cases,” he says.
The “we” matters. While Rothschild is not bashful about the case’s stature, he does not seek individual glory. He’s quick to credit his team, an allstar assembly that included co-lead counsel Stephen Harvey, another Pepper partner; Witold “Vic” Walczak, an ACLU attorney; Richard Katskee, an attorney from Americans United for Separation of Church and State; Nick Matzke, an expert from the NCSE; Thomas Schmidt, another Pepper partner; Alfred Wilcox, a Pepper of counsel; and a host of Pepper lawyers and legal assistants.
Shortly after taking the case in November 2004, the legal team decided to challenge the Dover curriculum change as a violation of the First Amendment, on the grounds that the school board acted with a religious purpose and that it was promoting an inherently religious concept. To prove that meant showing that intelligent design did not qualify as science, but rather was religiously based creationism recast as science.
Rothschild knew the trial would involve a showdown with Dr. Michael Behe, a biochemist and the star witness for the intelligent design movement. Rothschild started by getting to know his opponent, who teaches at Lehigh University in Bethlehem. One of the books Rothschild carried into the conference room was a dog-eared copy of Behe’s book, Darwin’s Black Box, which lays out a justification of intelligent design. Rothschild had marked pages of highlighted passages with more than 100 yellow, red and green tabs, what he called “grist” for cross-examination.
Matzke, who tracks the creationists’ arguments for the NCSE and tutored Rothschild for months, notes that the attorney was a quick study. “He picked up where I didn’t places where Behe was vulnerable,” Matzke says. Still, the challenge before Rothschild in the federal bench trial in Harrisburg was immense. As Matzke puts it, “How does a lawyer who is not a scientist show a judge who is not a scientist that the scientist is wrong?”
Preparation. Rothschild was ready to come at Behe, the first witness called by the defense, from a variety of angles. But he had to wait. For almost two days, Behe boldly held forth on the stand with very little interruption. He described the intricate workings of the bacterial flagellum by comparing its parts to that of an outboard motor, concluding, “Most people who see this and have the function explained to them quickly realize that these parts are ordered for a purpose and, therefore, bespeak design.”
Behe and others argue that such a system of “irreducible complexity” could never develop through natural selection or mutations, not even over a billion years; hence, they conclude by inference, its design suggests a supernatural intelligent designer, who shall go unnamed, wink, wink.
During Behe’s testimony, Rothschild could only fidget and scribble additional queries to his already long list of cross-examination questions. “I felt like a caged animal,” he says.
Late on the second day, Rothschild finally got his chance in what would become the highlight of the trial. He was “in the zone” when he began his cross-examination, determined to discredit Behe’s claims on multiple fronts.
He started by acknowledging in what The New Yorker writer Margaret Talbot described as a “deceptively reassuring geewhiz tone” that the bacterial flagellum was amazing, but so was a lot of biological life and an amazing nature was not necessarily evidence of an intelligent creator. He questioned Behe’s contention that bacterial flagellum could not have emerged through evolution because that development could not be reproduced in a lab by getting Behe to concede that such evolution could occur over 3.5 billion years. He also got Behe to admit on the stand, as he had in his deposition, that the rationale that would justify intelligent design as science would also justify astrology as the same — and so on, point by point, for the rest of that day and all of the next in a disarmingly cheerful manner.
Behe asserted that Darwin’s Black Box had been peer-reviewed; in other words, it has scientific validity by virtue of being scrutinized by his equals. Rothschild exposed the fact that one of the reviewers Behe named had not reviewed his book — indeed had not even read the book — but merely mentioned Behe’s book idea to the eventual publisher in a 10-minute phone conversation.
Behe cited the immune system as another example of “irreducible complexity” that defied the notion of having evolved. “You can look high and low but you will find no peer-reviewed articles describing how the immune system evolved,” he said. In perhaps his most dramatic flourish, Rothschild replied, “No?” as he stacked 60 articles and books with chapters describing the evolution of the immune system on the ledge of the witness stand in front of Behe, who could only wave his hand dismissively.
The moment not only discredited Behe, it crystallized for Rothschild his motivation. “The intelligent design movement is selling a big fraud,” he explains now. “There’s this public relations enterprise that denigrates evolution and presents intelligent design as a scientific alternative. That argument is insulting to real-life scientists. Those 60 articles were written by people anonymous to all of us. Behe, who’s written this book doing no scientific research of his own, just gave them the back of his hand. Maybe I’m patting myself on the back too much, but I felt I was a champion for the scientists who work hard in their labs and classrooms but don’t get the attention they deserve.”
Harvey marveled at the coup de grace Rothschild delivered. “His cross-examination of Behe was brilliant,” Harvey says. “It was funny, joyful and stimulating to watch. He did in intelligent design with that.”
Most significantly, Rothschild and his team impressed the judge, John E. Jones III. “Watching Eric and his colleagues made me recall why I aspired to be a lawyer myself,” Jones says. “The hallmarks of good trial lawyers include their level of preparedness, their ability to think fast on their feet and a good demeanor. All of those are attributes that Eric has. In his examination and crossexamination of witnesses, he mixes a friendly demeanor with a certain incisiveness that is very effective.”
The judge’s admiration notwithstanding, many expected Jones, a Republican and George W. Bush appointee, to rule along party lines, which the president articulated with his comment that intelligent design and Darwin’s theory should both be taught in schools. Rothschild and company managed to convince Jones otherwise. Almost seven weeks after the trial ended, the federal judge ruled that it was unconstitutional for the Dover school district to portray intelligent design as a scientific alternative to evolution. “To be sure, Darwin’s theory of evolution is imperfect,” Jones wrote. “However, the fact that a scientific theory cannot yet render an explanation on every point should not be used as a pretext to thrust an untestable alternative hypothesis grounded in religion into the science classroom or to misrepresent well-established scientific propositions.”
The flood of media attention and stature of the case made it a life-changing, career-altering event for Rothschild. Even if George Clooney doesn’t play him in the movie, he and Harvey have been cast as experts on the issues raised in the trial. Intelligent design is encroaching upon classrooms in other states and the two attorneys have been asked to speak to groups across the country.
Rothschild’s passion to promote religious freedom and grounded science remains strong. He expects to remain involved in the issues evoked by the case. That dedication and indefatigable passion impressed the NCSE enough to present its Clarence Darrow Award, bestowed upon lawyers who aid the cause of good science education, to Rothschild and his team of Harvey, Katskee and Walczak. “The amazing thing is they’re not sick of it,” Matzke says. “After having put so much time into this issue, lesser men would be sick of it already.”
The case exceeded Rothschild’s best expectations. He was able to argue a case he believed in deeply. He had fun working with Harvey and his team, which instituted a penalty jar for the endless flow of bad evolution puns. He enjoyed the media attention to the point of being envious that People magazine featured one of the plaintiffs and not him. And he was able to shine before his wife, a physician, who attended several days of the trial with their two children, Allison, 11, and Jake, 8. “I was able to be her knight in shining armor,” he says.
All that, yet Rothschild almost missed the chance to try his dream case. In 1999, he left Pepper, where he had started seven years earlier as a summer associate, to join a small firm. He felt restless and wanted to try something different. A year later, he returned to Pepper, the small-firm experiment having taught him that the big firm was where he belonged. “The cases I’d had here make your head hurt,” he says. “I needed that. Whatever jones I have for stress and complexity is satisfied here.”

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