Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Unlike some legal commentators on both the left and the right, I have no serious problems with Judge Richard Posner’s recent confession that he believes he erred in his decision upholding Indiana’s voter ID law.
First, judges get things wrong all the time. That is why we have dissents and concurrences, appeals courts, and a respect for precedent (stare decisis), but not permanently binding precedent. It is refreshing to see a judge has the intellectual confidence to admit when he is wrong. It would be good for more judges to admit that they are uncertain about a decision.
Second, Judge Posner in particular should be more open about being wrong because of his unique theory of judging. Posner does not adhere to either the living Constitution or original meaning. Rather, he believes in pragmatism of a law & economics variety. He thinks that judges should reach decisions with an eye to the consequences, and that judges should strive to render decisions that increase social welfare—in other words, decisions where the benefits outweigh the costs.
By his own standards, Judge Posner can be wrong in an individual decision if the consequences turn out to be different than he anticipated or if he balances the costs and benefits differently. Here, Posner has confessed error because he believes that his court did not become fully aware of all of the costs associated with upholding voter ID.
Third, there is some suggestion (such as this, by Charles Lane in the Washington Post) that Judge Posner has violated the canon of judicial ethics by speaking on a public policy issue. Of course, as anyone who has read his non-judicial writings knows, Judge Posner stepped over that line long ago. He is unique in his willingness to write and speak on all manner of issues. We should encourage that trait rather than losing a scholar with many contributions to make just because he joins the bench.
I’ve long thought that this judicial ethics rule is a violation of the right of free speech. Instead of forbidding judges from speaking, the proper rule would be that judges who do speak or write on public policy issues should recuse themselves from cases on that subject. The whole point of the rule is to guarantee parties an unbiased bench. Modifying the rule that way would do as good job or better of reaching that end.