There has been a huge hoopla over comments made by Judge Richard Posner during a HuffPost Live interview with Mike Sacks, and in various other media outlets, that he likely made the wrong decision upholding Indiana's Voter ID law in Crawford v. Marion County. This decision was affirmed by the Supreme Court in a decision written by Justice Stevens. Most of the commentary on Posner's out-of-court statements has been negative. Legal scholars and political commentators have argued judges should speak through their opinions not in after the fact writings and interviews. Ed Whelan of the National Review went so far as to say that "Posner's vacillation and contradictions on the Indiana voter ID case provide further evidence that he is wrong to advocate an open-ended judicial approach in which it is desirable to have the soundness of a decision turn on the judge's estimation of its 'likely consequences.'"
Is there something wrong with a judge admitting he may have been or even was wrong in a case he decided six years ago? Judge Posner admits that, if he had a similar case before him today, such out-of-court commentary might be inappropriate because the comments might suggest prejudging of the result. But, assuming no similar case pending, a judge who admits he made a mistake is performing a valuable service that is all too rare among our judiciary-displaying great humility about hard judicial decisions.
Far too many judges write opinions as if pre-existing law generates clear answers to hard cases. The truth is that in Crawford, as in most difficult cases where there is no clear precedent, results are generated much more by values and taste than logic and legal analysis. This "realist" way of understanding how judges reach legal decisions is crucial to understanding the role of the judiciary in our system of government. Whether the right to abortion is protected by the Constitution; whether affirmation action violates the rights of white people; whether Congress has the power to make you buy health insurance; and whether Voter ID laws violate the Fourteenth Amendment are all questions that can only be answered with reference to the political values and personal experiences of judges not by resort to law and logic. The great discretion judges, especially appellate judges, have to decide cases explains why Justices Ginsburg and Scalia, both brilliant lawyers and judges, disagree on virtually every contested issue of constitutional law.
Judge Posner has now publicly said that, contrary to his conclusion when he decided the case, Voter ID laws are likely more about voter suppression than voter fraud. This judicial humility should be applauded not criticized. Judges are people who make mistakes like everyone else. More importantly, whether Voter ID laws in fact violate the 14th Amendment is a question that depends on a host of imponderables -- how much fraud really exists, what is the true intent of the laws, and how burdensome are the laws on low-income and minority voters. How one views those facts not only can change over time as Judge Posner has suggested, but much more importantly depends on the judge's views (not legal) of the world. There is simply nothing wrong with Judge Posner looking back at his decision and saying that he might today have a different take on the important and contestable facts germane to the legal issue he had to resolve years ago.
In a visit to my law school after her retirement, Justice Sandra Day O'Connor was asked whether she regretted any cases she had decided during her time as a Supreme Court Justice. She dismissed the question with a wave of her hand saying that, once the case is over, "I don't go back and agonize over it. I just move forward to the next case." With all due respect to Justice O'Connor, that is exactly how a judge, especially a Supreme Court Justice, should not behave. I hope that judges who have to decide important questions of public policy are self-reflective, both before and after the fact, and are constantly challenging their own assumptions and biases. Judge Posner has written over forty books, countless law review articles and blogs, and is constantly discussing in the media how judges should and do decide cases. There is nothing improper about his going back a few years, revisiting a hard legal issue, and announcing that he might have made a mistake. The more information he gives the public about his tastes, values, and, yes, legal analysis, the fairer it is to the parties who argue in front of him and then have to abide by the decisions he makes. If the nine Justices who have the final say on our most difficult and important issues would all be as open, transparent, and willing to admit error as Judge Posner, we would all be a lot better off.