Ed Whelan in the National Review is frustrated with Judge’s Posner’s renunciation of his Crawford opinion on voter ID. He contends that Posner’s admission of error—and his new, more critical judgment about voter photo ID requirements—is a demonstration of the flaws in the “pragmatic” adjudication that the Judge has long championed. Posner is now convinced that photo ID requirements have led to voter suppression, and Whelan counters that Posner is just expressing a personal judgment, “sloppy and ill-considered,” that follows from an open-ended mode of judging that invites subjective judgments.

In support of his view, he cites from Posner’s book for the proposition that “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.’” Whelan, citing Richard A. Posner, Reflections on Judging 6 (2013). This is not fair representation of Posner’s views, and it cannot help account for his change of heart on photo ID. If pragmatic adjudication failed Posner in this case, it is not in the way Whelan suggests.

Posner’s theory of judging acknowledges that judges cannot remove themselves—their “intuitions, personal history and like sources of subjectivity”—from the analysis they bring to their cases, but he calls for decisions grounded in “scientific theory and empirical understanding” as judges consider carefully the practical consequences of their decisions. Reflections on Judging at 353. But in the same work cited by Whelan , Posner stresses that that this “attention to consequences has disciplinary force, slowing the rush to emotional judgment,” and prompts the jurist “aided by lawyers and social scientists…to investigate consequences systematically.” Id. at 122. Contrary to the impression left by Whelan’s selective quotation, Posner contrasts this approach with one more heavily dependent on and traditionally criticized for “the substitution of personal beliefs and emotions—at best of common sense (which often is untrustworthy)….” Id. at 353. “The judiciary needs better tools for deciding cases,” he writes, which means for Posner “realism grounded in modern analytical and empirical methods, realism that goes beyond the hunch.” Id.

In his reconsideration of Crawford, Posner now concedes that he failed in the pragmatic judge’s core obligation to attend carefully, on available facts, to the consequences of the decision. His original position in 2007 engaged only superficially with the arguments on both sides. Assessing the effects of ID requirements, Posner identified the problem as one of voter apathy: any voters who did not have photo ID were at fault for declining to make the time and pay the money to secure one. And those who turned up at the polls without their IDs, but would not travel home to retrieve the IDs, exhibited similarly lax habits of citizenship. In his view, neither category of voter could carry too much blame for their casual treatment of the franchise, because in each case the value of the vote to the individual voter is “elusive.” On the other side of the ledger was the state’s interest in defending against fraud, even if there had been none of it—certainly none of the impersonation kind—in Indiana. In Posner’s Crawford opinion, the “elusive” right to vote was weighed against elusive vote fraud, neither weighing all that much. Fraud won out. Crawford v. Marion County Election Board, 472 F.3d 949, 951 (7th Cir. 2008).

This first edition of Judge Posner’s pragmatic labors seems also quite “sloppy and ill-conceived,” but it troubles Whelan less than the second. Whelan objects that Posner goes too far to find vote suppression in recent legislative ID enactments and enforcement. “Any fraud prevention measure,” Whelan declares, “will have the incidental effect of deterring some people from voting,” and the loss of votes and their suppression are improperly equated.

This question of when regulation becomes suppressive in intent and effect is a large and important subject, better left for another day, but Posner’s second thoughts have this much going them: they reflect in summary terms his consideration of actual experience with the voter photo ID initiatives of recent years. Now paying closer attention to the facts and relating them to foreseeable consequences, he is doing what his pragmatism bids him to do. His jurisprudential failure in Crawford is not that this pragmatism necessarily leads him to indulge moral feeling or intuitions, but that he failed in his pragmatic duty, as he defines it. Whelan’s charge of “sloppiness” is more fairly brought against Judge’s Posner’s first pass at the voter ID issue, in Crawford.

Category: Voting Rights

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