(Article changed on October 24, 2013 at 15:09)
Flummoxed by Marta Steele
U.S. Court of Appeals Justice for the Seventh Circuit Richard A. Posner, whose recent regrets over his 2008 decision to uphold the voter ID law in Indiana have made mainstream news, is the second high-level judge this year to make such an admission, now aware of its long-term impact as he wasn't before.
Posner's regret was expressed in a single sentence in his new book, Reflections on Judging (Harvard University Press, 2013): "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 law now widely regarded as a means of voter suppression rather than fraud prevention."
He blamed this decision on insufficient evidence supplied by the prosecution. In an interview, he later clarified that the prosecution did not give "strong indications that requiring additional voter identification would actually disfranchise people entitled to vote."
The prosecutor himself was given a chance to respond. He argued that even if his testimony was said to be inadequate, enough information by other witnesses was certainly critical in proving that voter ID disenfranchises minorities unable to obtain it due to various discriminatory roadblocks, that by and large involve populations most likely to vote Democratic en masse.
On April 30, 2013, I dissected retired SCOTUS Justice Sandra Day O'Connor's regret over an even more far-reaching decision she made--her decisive vote that put George W. Bush into office as president in 2009. Had she voted with the liberal end of SCOTUS, Al Gore would have been president instead. (He later expressed support for both of Bush's wars, as well as his father's invasion of Kuwait, but that's another story.)
This decision by a former politician (Arizona state senator) has been said to be politically motivated: at a party her husband said that she had misgivings about retiring if a Democrat won the election. In the same interview cited above, she said that she regretted having retired at all, in light of the arch conservatism of her replacement, Justice Samuel L. Alito.
Posner's decision at the time was upheld in SCOTUS by no one less than the usually liberal Justice John Paul Stevens. Other states took the decision as justification for initiating voter ID--even though not one documented case of voter fraud--the basis and justification for voter ID--had been discovered in the Hoosier State. Today voter ID is the law in thirty-three states, including bright-blue Rhode Island. Texas and North Carolina are fighting the DoJ to uphold their recent, stringent legislation (which encompasses other restrictions and cutbacks) to join this cadre. Swing state Pennsylvania is vacillating but will not require ID in its upcoming election.
O'Connor regretted her decision because it renamed SCOTUS, for many of us, after the Motown rock stars the Supremes. In other words, the Court's image plunged in the eyes of the public, probably not as far down as that of Congress these days (5% express confidence; cockroaches have been said to be more popular), but downward--a recent Gallup poll reported that 34 percent of the U.S. population expressed high degrees of confidence in it, and inevitably it's downhill from there.
However subsequent history judges these justices' crucial admissions, one thing is clear: the people have continuously spoken out against voter ID and its groundless proliferation for years. This group is not even confined to Democrats. Why did court arguments have to determine outcomes?