Judge Richard Posner’s talents are not in doubt, nor are his range of interests, and certainly not the skill with which he has turned out extra-judicial writing on an impressive range of subjects.  But the performance he turned in yesterday, writing for the majority upholding the Indiana photo ID law, was hardly a tour de force.  It was a flop:  a display of smugly packaged intellectuality that betrays, in the end, a failure to grasp why voting, as an act of participation, actually matters.  Failing to appreciate that much, Posner reduces the ID law question to an exercise in technocratic policy-making, which is of course not at all, in the hands of the Indiana legislature, what it was.

      Posner takes some satisfaction in repeating in his opinion what he has taken pains to say before:  "the benefits of voting to the individual voter are elusive."  Slip op. at 3.  Elsewhere he has commented on its "crudity" as a method of "aggregating preferences," and its rough edges being obvious in a number of ways, including its insulation of the voter from criticism:  "[the voter] is neither rewarded for voting intelligently nor punished for voting stupidly."  Id. at 13.  What most mystifies him, in considering the "instrumental" value of voting, is "why anyone who is eligible bothers to vote":  "obviously they have little to gain from such an investment."  Breaking the Deadlock: the 2000 Election, the Constitution and the Courts (2001) at 13-14. 

      With this premise in hand, Posner not surprisingly manages, almost casually, the disposal of the issues before him.  It really is, he advises, a matter of balancing, of weighing the relevant costs and benefits:  "The fewer people harmed by a law, the less total harm there is to balance against whatever benefits the law might confer." Slip op. at 5.  Posner then takes it upon himself to speculate on how, and with what motives, legislators might have carried out this task.  Page after page, he put himself in their places, advancing this or that argument without the slightest pretense that he is speaking for anyone but himself.  Certainly the voice here is not that of the Indiana state legislator.

      But can’t poll workers, matching poll book signatures with those on file, detect an impersonator?  Don’t be silly, answers Posner:  "there is little chance of preventing this kind of fraud because busy poll workers are unlikely to scrutinize signatures carefully and argue with people who deny having forged someone else’s signature."  Id. at 7.  Does it matter that the State of Indiana has never prosecuted anyone for impersonation?  This can be "explained," Posner counsels, "by the endemic underenforcement of minor criminal laws" and by what this Judge has determined to be "the extreme difficulty of apprehending a voter impersonator."  Id.  Even the absence of reported fraud proves nothing since this "may reflect nothing more than the vagaries of journalists’ and other investigators’ choice of scandals to investigate."  Id. at 8. 

      Posner has thus dismissed as false negatives the records of prosecutors and journalists, and he can offer in their place the policy-making deftness of the pragmatic judge.  For as Posner has written,

It is not as if American judges were chosen at random and made political decisions in a vacuum. Judges of the higher American courts are generally picked from the upper tail of the population distribution in terms of age, education, intelligence, disinterest, and sobriety.  They are not tops in all these departments but they are well above average…Judges are schooled in a profession that sets a high value on listening to both sides of an issue before making up one’s  mind, on sifting truth from falsehood, and on exercising a detached judgment.

     "Pragmatic Adjudication," in Morris Dickstein, ed. The Revival of Pragmatism: New Essays on Social Thought, Law, and Culture (1998) at 243.  Those of us who attended law school, and those among the graduates who proceeded to practice law, might wonder:  what profession, so commendably concerned with "sifting truth from falsehood," might Posner have mind?  

     Posner is sure that appellate judges in this sense are solidly professional, and that it is not for this reason "completely insane to entrust them with responsibility for deciding cases in a way that will produce the best results in the circumstances…."  Id. at 244.  In the Indiana ID case, he is satisfied, on his independent review, that the result reached is the best in the circumstances. 

     Which result, however:  the one issued by a 2-1 vote, in his Court, or the one voted by the Indiana legislature in what the dissent calls "a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic"—(slip op. at 11 (Evans, J, dissenting))—a "group…mostly comprised of people who are poor, elderly, minorities, disabled, or some combination thereof"?  Id. at 13(Evans, J, dissenting).  Posner once was skeptical of the trustworthiness of legislators when they regulated, or avoiding regulating, political activity.  Breaking the Deadlock at 247.  He has made the case, in his arguments for election reform, for having "the administration of elections…vested in officials of unquestioned neutrality."  Id. at 245.  But in Indiana, he has remodeled the legislative edifice, transforming it from a drably colored branch of Republican Party headquarters into the gleaming temple of High Policy. 

     Posner cannot see that voting is a rich act of civic faith by which, however "irrationally," citizens maintain their vital connection to their government, and he is blind to the fragility of that connection and its vulnerability under pressure from politicians or parties acting their own interest.  And this is a surprising blind-spot, because he has conceded, at other times, that "politicians have limited horizons" and that "policy myopia is built into democratic politics."  "Can Washington Protect Us?  Our Incompetent Government," TNR online (Nov. 5, 2005). 

     Perhaps Posner is balancing something more than just anti-fraud and anti-disenfranchisement policies.  Perhaps he is also weighing the rationality of partisan manipulation against the irrationality of voting and favoring, as always, what is most rational. 

Bob Bauer