The Appellant’s Brief in Scopes, Part 3

John T. ScopesJohn T. Scopes

What, specifically, were the grounds for Scopes’s appeal to the Tennessee Supreme Court? That was the question that I began to address in part 1, relying on a copy (big PDF) of the brief at the Clarence Darrow Digital Collection of the University of Minnesota’s Law Library. I started to transcribe the headings in the “assignment of errors” from the brief submitted to the Tennessee Supreme Court by Scopes’s lawyers here—there are ten in all—and offer running commentary. (Because these are headings, they are set all in capitals; for the sake of legibility, I’ve transcribed them as regular text, so except for the capitals at the beginning of sentences, the capitalization is inferred. For explanations of the “motion to quash the indictment” and the “demurrer thereto” and “the defendant’s motion for a new trial,” consult part 1.) I addressed only the first three in part 1, and only the next four in part 2, so here are the final three.

  1. The trial court erred in overruling the defendant’s motion to quash the indictment and his demurrer thereto on the ground that said act is unconstitutional as violating Article I, Section 10 of the Constitution of the United States, which provides that “no state shall pass any law impairing the obligation of contracts”.

Frankly, I was surprised, not having heard the argument here before! The idea is that when Tennessee accepted federal appropriations to fund state colleges and universities, that “amounted to a solemn convenant” that “constituted a contract” entailing that the legislature “cannot lawfully evict science from the State University. It cannot provide that science be measured by the Bible, or by any other doctrinal book.” The Butler Act thus impaired Tennessee from fulfilling its contract with the United States government.

  1. The trial court erred in excluding the testimony of the scientific witnesses offered by the defendant.

There’s no constitutional issue here. Rather, the brief asserts, “By moving to exclude this testimony, the State admitted that such facts could be established, or that such facts are immaterial,” contends that they are not, in fact, immaterial, contrary to the prosecution’s theory, and concludes that the Supreme Court must consider that the facts have been established or at least that the trial court erred in excluding the testimony. The brief argues that both the jury and the judge should have heard the excluded testimony.

  1. The trial court erred, in view of the invalidity of said indictment and the unconstitutionality of said act, and the exclusion of said expert testimony, in pronouncing the defendant guilty of any offense and in assessing a fine against him.

The brief summarizes, “It follows without argument that if the indictment is valid or if the Act is invalid, the sentence pronounced upon the defendant Scopes is likewise invalid,” adding, “It follows that if the foregoing assignments of error or any of them is valid, the trial court erred in finding the defendant Scopes guilty. It is earnestly insisted that not only one but all of said assignments are valid, and that said judgment should be now reversed and this prosecution dismissed at the cost of the State.”

The appellant’s brief was 134 pages long; the reply brief, written by Nashville attorneys Ed T. Seay and K. T. McConnico, was 400 pages long. But the Tennessee Supreme Court’s majority decision upholding the constitutionality of the law was just fourteen pages long. The court ruled, in summary, that the indictment and the Butler Act were sufficiently clear (addressing points 1 and 2 from the appellant’s brief), that the Butler Act didn’t give a preference to a religious establishment because religions are divided about evolution (point 4), that the Tennessee constitutional requirement of cherishing science is unenforceable (point 5), and that Scopes was a employee of the state so considerations of due process weren’t applicable (points 6 and 7). “Some other questions are made,” the court noted, “but in our opinion they do not merit discussion, and the assignments of error raising such questions are overruled” (presumably points 3, 8, 9, and 10). But the decision wasn’t a slam-dunk for the state.

Indeed, despite its swift and sometimes cursory dismissal of the arguments in the appellant’s brief, the Tennessee Supreme Court didn’t uphold Scopes’s conviction, as noted in part 2 of “Flubbing the Appeal in Scopes.” Instead, the court seized upon a point that neither the appellant nor the state mentioned in their briefs: that Judge Raulston had decided the fine, opting to impose the minimum possible fine of $100 under the law. Under Tennessee state law, the jury had to decide the amount of any fine greater than $50: “the trial Judge exceeded his jurisdiction in levying this fine and we are without error to correct his error,” the decision intoned—although it was observed at the time that the jury might be deemed to have constructively set the fine, since the jury explicitly delegated the task of setting the fine to the court. Instead of remanding the case to the trial court for a retrial, the Tennessee Supreme Court strongly hinted, “We see nothing to be gained by prolonging the life of this bizarre case,” and the state took the hint.

Commenting on part 2 of “Flubbing the Appeal in Scopes,” David Munson wrote, “I am no legal scholar, but I do not understand why the conviction was overturned when the problem was with the sentencing.” Well, as far as I can tell, there was no compelling legal reason for it. And certainly the reaction of the contemporary lawyers was that the snafu with the sentencing served, for the Tennessee Supreme Court, as a pretext to forestall further proceedings and avoid further controversy. Arthur Garfield Hays, who represented Scopes at the trial and during the appeal, told The New York Times, “It does look a little as though the court was not anxious to have the case go any further.” (The reaction of his colleague Dudley Field Malone was pithier: “a typical country lawyer’s trick.”) But Hays took it as a victory nevertheless, telling the Associated Press, “It seems clear to me that the courts are dodging the issue. I think the Anti-Evolution law in Tennessee is dead, because the courts don’t want to pass upon it.”