There has been much discussion as a consequence of one sentence in Judge Richard Posner’s recently published book, Reflections on Judging.   The sentence reads, “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.”  Judge Posner’s 2007 opinion for the US Court of Appeals in Crawford v. Marion County Election concedes that the then new Indiana law makes it more difficult for the elderly and the poor to vote because they are less likely to have drivers’ licenses.   To vote, those who lack drivers’ licenses, must find out what identification will be required, where they can obtain the special state identification voting cards, and then find time and transportation to take them there.  In an October 22, 2013, Washington Post opinion piece, Charles Lane criticized Judge Posner for publically casting doubt on his own decision.  A  judge who suggests he (and by implication the Supreme Court) was wrong in deciding a case could risk undermining public confidence in our judicial system.  But there are circumstances in which it is important for a court to reverse a decision, or a judge to criticize an opinion, that appeared to be proper at the time it was made.  In those circumstances a confession of errors does not diminish the reputation of the courts.  An obvious example has been presented by rape convictions where later DNA analysis shows the defendant did not commit the rape.  Reversing a conviction in those circumstances ought to enhance the prestige of the courts because it demonstrates that the courts can and will do justice when the evidence demands it. 

Explaining his confession in a October 27, 2013 article in the New Republic, Judge Posner emphasizes that circumstances have changed since he wrote the opinion: “now”, in 2013, laws like the one upheld in Crawford “are widely regarded as voter suppression.” In addition to benefit of hindsight, Posner also blames the attorneys who had challenged the Indiana restrictions for not presenting sufficient evidence of an unconstitutional effect on denying rights to citizens who are entitled to vote.  That effect on voting rights appears more obvious in the wake of other recent state laws restricting the right of citizens to vote.  There will be litigation in many of those states. Because the Supreme Court had a split opinion upholding Posner’s decision and because Posner is probably the most influential judge in the United States who is not on the Supreme Court, his concession that he may have made a mistake could affect other court decisions in the wave of litigation that has begun. By saying nothing about his opinion, Posner would have done greater harm to the reputation and integrity of courts than stating that he has changed his mind.  

Books like Posner’s Reflections on Judging have made important contributions to the development of American and British law.  At least since the 13^th century when Henry de Bracton published The Laws and Customs of England, judges have help shape and refine legal standards by writing about court decisions.  In the 16^th and 17^th century, Sir Edmund Coke, Chief Justice of the Court of Common Pleas and later Chief Justice of the King’s Bench, wrote opinions that recognized that accused persons had rights, and helped establish those rights by including discussions of his decisions and those of other judges in his Reports on Cases.  His Institutes of the Laws of England provided a clearer statement of the rights of citizens that had been and should be recognized.  

The evaluation of judicial decisions by judges has continued in United States.  In the early 19^th Century Chancellor Kent, the highest judge in New York State, published his Commentaries on American Law.  Those provided guidance to American judges that distinguished American from British law.  In the late 19^th century Oliver Wendell Holmes Jr., wrote The Common Law, which was probably the most influential book on judicial decision making for a century after its publication.  Holmes continued writing about judicial decisions after he became Chief Justice of the Supreme Judicial Court of Massachusetts and later an Associate Justice of the Supreme Court.  Homes’ colleague on the Supreme Court, Benjamin Nathan Cardozo also wrote extensively about judicial decisions.  This tradition was followed in the mid twentieth century by Judges Learned Hand and Henry Friendly.  Currently, Antonin Scalia, and Stephen Breyer, both Associate Justices of the Supreme Court, have written books about judicial decisions. History and legal tradition support the notions that judges contribute to the development of our law by writing about judicial opinions and court decisions.  Posner’s confession in his recent book that he may have made a mistake in the Indiana voting rights case has been widely commented on and criticized by some, but it is squarely within this long standing tradition.  

Posner’s doubt about his decision in Crawford was not based on dramatic new technology that caused reversals in DNA cases; rather the confession is important for other reasons that are fundamental to the operation of our legal system.  We require judges, like Posner, to justify their decisions by writing opinions that explain their reasons for at least two sets of reasons.  First, the judge is supposed to show that the evidence in the case and the decision are consistent with previous cases or other accepted legal principles.  This reason for writing opinions is designed to demonstrate that the decision is not arbitrary and does not reflect illegitimate considerations such as bribery or prejudice by a judge against one of the parties.  Second, the written opinion of the judge becomes a part of the law of the country.  It is expected that other judges will read the opinion and may rely on it (and other opinions of judges) when they decide similar cases in the future.  This second function, reliance on previous decisions and opinions, provides stability to our legal system.  Judges are supposed to depart from previous decisions only when they can demonstrate reasons why the new case is different and those differences justify a different result or reasons why the opinions of decided cases are wrong and therefore should not be followed.

Judge Posner’s admission that he may have made a mistake in deciding the Crawford case is relevant only to the second purpose of opinions.  Posner’s change of mind is important for future cases that involve the rights of citizens to vote, which is central to the operation of our democracy.  There are likely to be many more of these voting rights cases because, following this year’s decision of the Supreme Court in Shelby County, Alabama v. Holder which  invalidated part of the 1965 Voting Rights Act, a number of states have enacted laws that restrict the right to vote in a whole variety of ways.  These include laws that require new forms of identification even for person who have voted in previous elections, laws that make it more difficult or complicated to register, and laws that narrow the time or places where a citizen may cast his or her ballot. Following this year’s Supreme Court decision a flurry of new state laws have enacted new restrictions on the rights of citizens to vote.  There are now an estimated 35 states that have some kind of new voting restriction.

As early as 1886, the Supreme Court declared that the right to vote is the “fundamental political right because [it is] preservative of all rights.”  The Court elaborated this proposition in its 1964 landmark “one man, one vote” decision stating:  “the right to vote is… the essence of a democratic society and any restriction on that right strikes at the heart of representative government.”   This has been a constant theme of our constitutional law since the adopting of the post Civil War 15^th Amendment, which guaranteed the rights of blacks to vote.  Voting was considered so fundamental that in the early part of the 20^th century, when courts were still enforcing state segregation laws, the Supreme Court decided a series of cases that made the guarantees of the 15^th Amendment more meaningful.  The Court held unconstitutional a variety of state laws that were preventing blacks from casting effective votes by excluding them from voting in primary elections.  In the mid 20^th century, the Supreme Court invalidated state laws that required voters to pay a tax to vote on the grounds that it had an unconstitutionally limited the voting rights of the poor and a disproportionate number of those were black.  Congress sought to eliminate other barriers that prevented blacks and other minorities from voting in the 1965 act.  Voting rights of citizens were also enlarged by the 16^th Amendment which provided that Senators shall be elected by voters rather than state legislatures.

For most of the 20^th century, laws have been enacted that made it easier for citizens to register and vote.  During World War II the federal government guaranteed the right of soldiers and sailors to vote by absentee ballot.  In the 1970s, federal legislation established uniform absentee ballot procedures that allow American citizens to vote in presidential elections even when they live in foreign countries.  Some states now allow voters to register at motor vehicle departments.  Other states have made it easier to vote by mail. Still others have made it easier to vote by allowing voters to cast their ballots on more days and provide longer hours for voting on election days.  These changes seemed to be a response to the sense of the importance of voting and perhaps some embarrassment at the results of studies showing that a consistently smaller percentage of Americans vote in national elections than citizens of European democracies, Australia, New Zealand, or Canada.  

In the past 15 years, however, a growing number of states have attempted to narrow the voting rights of their citizens.  With some voter protections gone as a result of the Supreme Court’s decision in Shelby County, we need the best guidance we can get from our courts on what kinds of restrictions on voting will be held to be constitutional.  Litigation over new restrictions on voting rights has begun and the likelihood that there will be considerably more makes it particularly important that Judge Posner publically disavow his decision in Crawford if he is no longer convinced about the constitutionality of the Indiana law.  The importance his action rests on the respect that Judge Posner has earned from courts, law schools, and the public.  He is held in high esteem because he is smart, thoughtful, and writes persuasively.  It is likely that judges in future cases involving restrictions on voting rights would have looked to Judge Posner’s opinion and might have been persuaded on grounds that he no longer finds persuasive.  In cases involving less fundamental issues, it might have been appropriate for Judge Posner to await another case with better evidence and argument to announce that he has changed his mind, but the importance of voting obliges him to set the record straight now as the issue is being litigated all over the country.

I have not always agreed with Judge Posner’s view of legal and public policy issues.  Two years ago, I published a book, Reality Ignored, in which I portrayed Judge Posner and Judge Robert Bork as the two most visible public figures who were responsible for gutting American antitrust laws.  They harmed our economy by persuading courts, legislatures and government officials that businesses almost never need regulation.   They recast American antitrust laws from what the Supreme Court had characterized as a “comprehensive charter of economic liberty aimed at preserving free and unfettered trade… [and] an environment conducive to the preservation of our democratic and social institutions” to a narrow theory that focused solely on a small set of bad actions by businesses.  In doing this, they helped to move American public policy in a direction that has weakened our economy and our society.   It is important, however, to note differences between these two men.   Richard Posner has shown more often than the late Robert Bork that he is willing to look at facts and be persuaded by demonstrable consequences of actions whereas Bork was more likely to ignore facts and rely on theory.  

Posner is often considered the founder of the “law and economics” movement in the United States.  His writings over the past half century have altered the teaching in law and business schools and economics departments.  More significantly, his writings have altered American attitudes toward government regulation.  He has advocated deregulation because he believes that regulation is generally unnecessary and harmful to business and the public.  However, after the 2008 economic collapse of the global banking system, Posner declared that he had finally read John Maynard Keynes 1936 classic book The General Theory of Employment, Interest, and Money.  Apparently, the reading of this seminal text on “modern” economics and the disaster resulting from the 2008 crash persuaded Posner that he had been wrong about the self regulating character of markets, or at least financial markets.  He wrote two books explaining his new insight that regulation of financial markets is both necessary and useful to the operation of a free market or capitalist economy.  

Judge Posner’s disavowal of his opinion in Crawford is another example of his sensitivity to facts.  It may have been less obvious at the time of his 2007 decision that numerous state legislatures would leap at the chance to deprive their citizens of the right to vote.  Indiana and other states may have been responding to a perception that the enlarged ability to vote under new laws of other states has endangered the integrity of the election process.  States must have standards that ensure that voters include only persons who have the qualifications to vote and that they vote only once in each election.  The issue in Crawford and other statutes that are now being challenged is whether the new restrictions on voting are designed to safeguard democracy by preventing voter fraud.  The Indiana legislature had no evidence that any ineligible person had ever voted in Indiana under its prior law and procedures.  Indeed, none of the legislatures that have passed new more restrictive voting laws have looked for and found evidence that ineligible persons are voting.  Nevertheless these laws impose new requirements on citizens to prove their eligibility to vote and diminish the opportunity to vote by limiting the time and places where votes may be cast.  These laws seem to be the opposite of promoting the voting rights of citizens.

Judge Posner wrote in Crawford that those challenging the Indiana law failed to show that it imposed an “undue burden” on the citizens who sought to vote.  The law required persons wishing to vote to show government approved photo identification proving their eligibility.  He acknowledged that Indiana’s voter identification law was likely to impose a greater burden on Democratic voters, and therefore Democratic candidates, because persons who lack such identification are likely to be poor and more of the poor tend to vote for Democratic candidates.  Nevertheless, he was not persuaded that the “burden” violated the constitution.   He reasoned that states must have some identification requirements to determine who is an eligible voter and these requirements will inevitably cause some burden to persons who want to vote.  He decided that states should be given considerable freedom in formulating their eligibility requirements.  His opinion declares that state eligibility rules should not be subjected to strict constitutional scrutiny that would examine whether the rules have an unconstitutional discriminatory effect or could have been written in a manner that would be less burdensome to citizens who wish to vote.   

It seems difficult to reconcile Judge Posner’s failure to apply a strict constitutional scrutiny standard with the Supreme Court decisions which characterized voting as our “fundamental political right” and declared that “any restriction on that right strikes at the heart of representative government.”   His opinion does not discuss these Supreme Court cases or the evolution of voting rights in the United States. Even if it is normal for the courts to invoke a presumption that legislation is constitutional, our constitution and the decisions of our courts suggest that restrictions on voting should not enjoy that automatic presumption of constitutionality.  Restrictions ought to be carefully examined when, as Judge Posner notes, the Indiana eligibility rules impose a burden on identifiable groups of voters.    

It is important to note that Posner’s concession that he made a mistake is not a determination that the Indiana law or other new voter eligibility requirements are necessarily unconstitutional.  Persons challenging those eligibility requirements will have to show that a new requirement is likely to restrict voting rights and courts will have to determine whether there are less burdensome means to protect real threats to the integrity of the election process.  Judge Posner does not decide these factual issues in his confession.  New eligibility rules may differ in each state and the circumstances of the states enacting the voter eligibility legislation may be different.  Instead, Judge Posner has hit the reset button on his decision.  This reset should encourage other courts not to rely on Judge Posner’s opinion in Crawford.  Rather they should look at each voting restriction and evaluate its constitutionality on the basis of prior constitutional decisions and the facts presented in each case that challenges restrictions in a voting law.