Richard Posner is the latest judge to learn that while confession may be good for the soul, when a judge does the confessing, people sit up, notice and take potshots.
In just one line in the newest of 40 books by the court of appeals judge, Posner wrote “I plead guilty” to having written a decision upholding Indiana’s voter ID law. Posner said he has since come to realize that such laws are “now widely regarded as a means of voter suppression rather than of fraud prevention.”
Posner’s change of heart was no small matter. The U.S. Supreme Court upheld Posner’s ruling in 2008, and voter ID laws have proliferated. With such laws a raw subject for many, Posner’s statement made news. Posner, who has sat on the U.S. Court of Appeals for the Seventh Circuit since 1981, spent much of last week denying he had recanted. But the damage was done.
Lawyers who opposed the Indiana law fumed that Posner had access to all the information he needed to get it right the first time. Conservatives criticized Posner for vacillating. Pundits said Posner erred by confessing error at all. “I wish he’d kept his mouth shut,” Washington Post columnist Charles Lane said. In the Los Angeles Times, Michael McGough worried Posner’s comments could be “used to discount or distort” his court’s conclusions of law.
Posner told The National Law Journal in an email that, “if the judge just says, based on what I now know, I think I may have voted incorrectly (or I did vote incorrectly), I don’t see any problem with that. The important thing is that the judge’s opinions indicate that he approached the case in a responsible, informed, and fair-minded way.”
Supreme Court justices of late appear to agree. Posner’s confession itself led retired Supreme Court Justice John Paul Stevens, who wrote the 2008 decision affirming Posner, to voice misgivings about his own stance. As a matter of history, Stevens said, the justices who dissented from his ruling were “dead right.”
In April, retired Justice Sandra Day O’Connor mused that in the election-deciding case of Bush v. Gore, “Maybe the court should have said, ‘We’re not going to take it, goodbye.’ “
More recently, Justice Ruth Bader Ginsburg regretted joining the majority in a 2009 voting rights case that laid the groundwork for the decision in June that struck down a major part of the Voting Rights Act. “With the benefit of hindsight, I might have taken a different view,” she said.
Such confessions have a long history in the law, going back at least to 19th century Britain, where Baron Bramwell, the patron saint of judicial recantation, wielded his gavel. When an impertinent lawyer pointed out a position he had taken in a previous case, Bramwell famously said, “The matter does not appear to me now as it appears to have appeared to me then.”
Bramwell’s bewigged portrait hangs on the wall of Yale Law School lecturer Eugene Fidell, who has written about judicial recantation. “Judges are human beings,” Fidell said. “People do get wiser, occasionally, when they get older.”
But Fidell thinks public recantation should be rare. It violates the “need for repose” in the law, he said — the sense that judicial decisions are made for the long term. “The public needs to be reasonably confident that legal decisions are being made in a way that is not ad hoc.”
After he retired in 1987, the late Justice Lewis Powell said he probably made a mistake when he cast the decisive fifth vote in Bowers v. Hardwick, upholding Georgia’s anti-sodomy law. Powell also wished he had dissented in McCleskey v. Kemp, instead of writing the majority opinion that made it difficult to overturn a death sentence on the basis of perceived racial bias.
Duke Law School dean David Levi thinks judicial recantation is never a good idea. Levi was a federal district judge in California for 17 years. “A judge has a limited role, making the best decision he can possibly make based on the information provided by the parties,” Levi said. Coming to a new conclusion without the benefit of a new proceeding, Levi said, is “outside the decision-making process that we admire, protect and cherish. It’s not judicial behavior.”
Amanda Frost, professor at American University Washington College of Law, thinks that when used sparingly, confession of error can do some good. “Powell’s regret about his vote in Bowers was very powerful, and I think it was part of what influenced the court to overrule that precedent in Lawrence v. Texas,” she said.
Recantations also affirm that judges are fallible. “We and they should accept the fact that sometimes they are wrong,” Frost said.
Or, as the late Justice Felix Frankfurter once put it, “Wisdom too often never comes, so one ought not to reject it merely because it comes late.”
Tony Mauro can be contacted at firstname.lastname@example.org.