Judge Posner’s Weak Mea Culpa

by Ed Whelan

Seventh Circuit judge Richard A. Posner has made news recently with his declaration that he was mistaken in writing a majority opinion that upheld Indiana’s voter-ID law (and that was affirmed by the Supreme Court, with the lead opinion by Justice Stevens). In his new book Reflections on Judging, Posner asserts that the law is of “a type … now widely regarded as a means of voter suppression rather than of fraud prevention.” And in an interview, he explains his supposed mistake by asserting that “we weren’t really given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote” and that “we weren’t given the information that would enable that balance to be struck” between preventing fraud and protecting voters’ rights.

As a general rule, I’m all for people acknowledging their errors, and I’ve tried to make a practice of acknowledging and correcting my own. (Even as to his nonjudicial work, Posner clearly hasn’t adopted such a practice.) Some cross-cutting complications are involved, I think, in a judge’s confession of his own judicial errors, but I’ll pass over those here and assume that such confessions are, on balance, welcome. But I’d like to highlight some oddities of Posner’s admission of error.

It’s fair to presume that Posner gave careful attention to the competing arguments for and against the Indiana voter-ID law at the time he ruled on it. From his own account of his general practice in his new book, he would have read the briefs, discussed the case with his law clerks, done whatever additional research he thought necessary, challenged the attorneys at oral argument, and meticulously worked through the issues in writing his opinion. In addition, of course, before issuing the opinion, he had the opportunity to review the dissent by Judge Terence Evans (who he now says “was right”).

By contrast, one has to wonder what underlies his assertion in his book some six years later that he got it wrong. The few words he writes—that the law “was a type of law now widely regarded as a means of voter suppression rather than of fraud prevention”—seem sloppy and ill-considered. In a book replete with footnotes, he doesn’t bother to cite any support for his proposition. Nor does the stark dichotomy he posits seem a sound one: As his opinion recognized, any fraud-prevention measure will have the incidental effect of deterring some people from voting.

As for Posner’s contention that he wasn’t “given the information” needed to assess the case properly: Paul M. Smith, the accomplished appellate lawyer who represented the law’s challengers in the Supreme Court, thoroughly refutes Posner.

So why should anyone think that Posner’s judgment on the issue is better now that it was when he decided the case?

Posner’s recent remarks may instead stand as an indictment of the unstable and open-ended judicial approach that he advocates in his new book, a supposedly “pragmatic” approach in which how a judge should decide a case “will often depend on moral feelings, common sense, sympathies, and other ingredients of thought and feeling that can’t readily be translated into a weighing of measurable consequences” (p. 6).