Judge Richard Posner suggested in his new book that he was wrong to uphold Indiana’s voter ID law

Judge Posner: I Never Said My Opinion Was Wrong

Richard Posner

By Jacob Gershman

Judge Richard Posner —Reuters
Judge Richard Posner generated quite the hullabaloo when he suggested in a book — and later confirmed to a reporter — that he was wrong to uphold Indiana’s voter ID law. For legal watchers, it was rare admission by one of America’s most famous judges, especially on such a polarizing issue.

But in the latest twist, Judge Posner now says he never disavowed the 2007 opinion he wrote for the 7th U.S. Circuit Court of Appeals in Crawford v. Marion County Elections Board. Writing in the New Republic, he says:

I did not say that my decision, and the Supreme Court’s decision affirming it (written, be it noted, by the notably liberal Justice Stevens), were wrong, only that, in common with many other judges, I could not be confident that it was right, since I am one of the judges who doesn’t understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process.

He says the point he was trying to make in his new book, “Reflections on Judging”, was that “in many cases judges can’t have any confidence in the soundness of their decisions if they do not have empirical data concerning the likely consequences of deciding the case one way rather than another.”

The controversial passage in his book is just a single sentence on page 85: “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,” he wrote.

The line didn’t get much attention until HuffPost Live’s Mike Sacks asked Judge Posner about it in an interview that aired Oct. 11 (fast-forward to the 8:40 mark). The reporter read the passage to the judge and asked him if he and the court had gotten the case wrong. “Yes, absolutely,” Judge Posner replied. Judge Posner doesn’t mention the interview in his New Republic piece.

The U.S. Supreme Court in 2008 affirmed the Seventh Circuit ruling by a 6-3 vote. Retired Justice John Paul Stevens, who wrote the opinion, told WSJ’s Jess Bravin that he believes he ruled correctly, but said he’s concerned by the proliferation of state laws tightening voter-identification requirements.

So what to make of Judge Posner’s latest turnabout? “I do not believe it is credible given his Huffington Post comments,” University of California-Irvine law professor Richard Hasen, an electoral law expert who was critical of Judge Posner’s opinion in Crawford, told Law Blog.

Law Blog has put in a request to speak to Judge Posner.

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