When a judge rethinks a prior decision, should he keep mum or admit his error?
By S.M. | NEW YORK
JUDGES on America’s Supreme Court, and on many other tribunals of last resort around the world, are called “justices”. The term carries a whiff of pretence, but the honorific reassures a citizenry whose lives are subject to rulings by unelected members of the judiciary. In the lower courts, judges are just called “judges”, but they tend to inspire similar confidence in their legal knowledge and fundamental fairness.
We expect judges to be governed by principle and to adjudicate cases with an eye to stable readings of the law. For the most part, based on the principle of stare decisis ("let the decision stand"), they deliver. Overturning a prior decision usually takes place long after the original ruling was issued, as when the Warren court abandoned the “separate but equal” doctrine after 56 years. Sometimes the court reverses course more quickly, as when it protected schoolchildren who refused to salute the flag just three years after it allowed such behaviour to be punished. But when courts overturn a precedent, rarely do individual judges switch sides; it is typically the court’s evolving composition that enables a reversal.
So it is very curious that Richard Posner, a judge on the Seventh Circuit Court of Appeals, is now walking back a decision he made in 2007 regarding the hot-button issue of voter-identification laws.
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.
Is Mr Posner’s about-face on voter-ID laws a refreshing admission, or a blow to his office? Charles Lane thinks it is the latter:
Some critics of voter ID laws may revel in Posner’s confession. I wish he’d kept his mouth shut. Not because I’m a fan of voter ID laws—I’m not—but because Posner’s casual mea culpa is improper behavior for a sitting federal judge.
The Code of Conduct for United States Judges discourages members of the bench from opining on the issues of the day. They may “speak, write, lecture, and teach on both law-related and nonlegal subjects,” as long as that doesn’t “detract from the dignity of the judge’s office” or “reflect adversely on the judge’s impartiality,” among other caveats.
Not the clearest line, to be sure—it has proved flexible enough to accommodate Posner’s vast opus, which, over the years, has included dozens of books and articles on subjects ranging from antitrust to sex, as well as a popular blog. HuffPost Live calls Posner “the premier American public intellectual” of our time.
Yet however blurry that line may be, by publicly recanting one of his decisions while still on the bench, Posner has finally crossed it.
The fundamental problem Mr Lane sees with Mr Posner’s comments is that ”judges shouldn’t engage in the hurly-burly of political argument. It fosters the impression, corrosive to the rule of law, that there is no difference between a judicial process and a legislative one.”
One need not turn to the Supreme Court’s ruling in Bush v Gore to observe that the courts are already quite politicised. Justices often express political opinions, both on the bench and off. Ruth Bader Ginsburg weighed in on everything from gender discrimination to gun rights in an interview last month. Samuel Alito broke protocol during Barack Obama's state-of-the-union address in 2010 by aggressively shaking his head in response to Mr Obama's prediction that the Citizens United decision would "open the floodgates" of corporate campaign donations. Dissenting from last year’s ruling striking down the Arizona ballot initiative that required voters to prove their citizenship, Antonin Scalia laid out a vehement critique of Barack Obama’s immigration policy.
For Mr Posner to wander into a political debate over voter identification is only to follow the lead of his superiors. That he is willing to admit something few politicians and fewer sitting judges will cop to—making a mistake—is only another point in his favour. We want our judges to be judicious and impartial. It would be alarming if they changed their minds willy-nilly from day to day, lending no stability to their decisions. But Mr Posner's new stance on Crawford poses no such threat. His reasoned reconsideration is a testament to his willingness to keep an open mind, to listen to counterarguments and to adapt his own view when the evidence warrants a switch. Would we prefer our judges narrow-minded, crusty and intransigent?
