“Judge in Landmark Case Disavows Support for Voter ID”
“Judge Who Framed Voter ID Laws As Constitutional Says He Got It Wrong”
“Judge: my voter ID ruling was wrong”
“Judge Who Upheld Nation’s First ID Law Now Regrets It”
The declarations above headline some of the many pieces written in response to an appearance Judge Richard Posner made last week on HuffPost Live. In an interview with the streaming network’s “Legalese It!” show, Posner discussed his new book, Reflections on Judging, in which he takes stock of some of the changes he’s observed during his thirty-one years as a member of the federal judiciary. His focus is on complexity, both within the judicial system and in the world at large, and the ways in which it affects legal proceedings.
In the book, Posner notes that decisions rendered on issues pertaining to the First Amendment constitutionality of legislative restrictions on contributions to political campaigns have “enmeshed” the Supreme Court and the lower federal courts in the electoral process, in spite of a lack of understanding of that complex process and of possible consequences of court rulings. Posner admits his own susceptibility on this front, as manifest in the landmark Crawford v. Marion County Election Board case: “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.”
When the HuffPost Live interviewer seized on that comment to ask whether Posner believed the court had ruled incorrectly in the case, the judge made his position clear:
Yes. Absolutely. And the problem is that there hadn’t been that much activity in the way of voter identification, and we weren’t given any reason—maybe we should’ve been more imaginative—we weren’t given strong indications that requiring additional voter identification would actually disfranchise people entitled to vote… But I think we did not have enough information. And of course it illustrates the basic problem that I emphasize in my book. We judges and lawyers, we don’t know enough about the subject matters that we regulate, right? And if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.
Posner’s disavowal of his earlier opinion is the subject of all those articles linked above, and a federal judge speaking so candidly about something as important as voting rights is obviously newsworthy. We shouldn’t lose sight, though, of Posner’s larger point about that “basic problem” of complexity, a concept on which he elaborates in his introduction to Reflections on Judging:
I must explain what I mean by “complexity.” A question can be difficult without being complex—for example it can be an ethical or other values question, or simply a question to which no answer can be given, for want of data. A question is complex in the sense in which I shall be using the word when it is difficult by virtue of involving complicated interactions, or, in other words, involving a system rather than a monad. The system can be economic—a market, for example, which involves interactions between sellers and buyers and frequently tacit interactions among competing sellers. It can be political—the international balance of power, for example. It can be ecological—a population of animals that compete to maximize (unconsciously of course) their genetic fitness. It can be technological—a cell phone or other complex machine. Indeed, it can be almost anything—a business firm, a college, the cells of a living body, the combination of subatomic particles that form an atom, the solar system.
All these are examples of complexity that are external to the legal system, that are part of the environment that generates cases. But like other professions, the judicial profession generates its own complexity, which I call internal, and which makes it more rather than less difficult for judges to cope with external complexity. “Professionals are rated by the presumed complexity of what they know and do. So to retain or raise an occupation’s status, tasks are made more mysterious, usually by taking what’s really simple and adding obfuscating layers.” Abetted by lawyers, law professors, law clerks, and legislators, judges “complexify” the legal process needlessly—and do so in part to avoid the struggle to understand the complex real-world environment that generates much of the business of a modern court.
And here’s that HuffPost interview:
UPDATE: Surprised by the continued attention on a single sentence that he’d thought innocuous, Judge Posner clarified his comment on Crawford v. Marion County Election Board for the New Republic.
