October 30, 2013
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.