Ed Whelan in the National Review is frustrated with Judge’s Posner’s renunciation of his Crawford opinion on voter ID. He contends that Posner’s admission of error—and his new, more critical judgment about voter photo ID requirements—is a demonstration of the flaws in the “pragmatic” adjudication that the Judge has long championed. Posner is now convinced that photo ID requirements have led to voter suppression, and Whelan counters that Posner is just expressing a personal judgment, “sloppy and ill-considered,” that follows from an open-ended mode of judging that invites subjective judgments. In support of his view, he cites from Posner’s book for the proposition that “how a judge should decide a case ‘will often depend on moral feelings, common sense, sympathies, and other ingredients of thought and feeling that can’t readily be translated into a weighing of measurable consequences.’” Whelan, citing Richard A. Posner, Reflections on Judging 6 (2013). This is not fair representation of Posner’s views, and it cannot help account for his change of heart on photo ID. If pragmatic adjudication failed Posner in this case, it is not in the way Whelan suggests.
Posner’s theory of judging acknowledges that judges cannot remove themselves—their “intuitions, personal history and like sources of subjectivity”—from the analysis they bring to their cases, but he calls for decisions grounded in “scientific theory and empirical understanding” as judges consider carefully the practical consequences of their decisions. Reflections on Judging at 353. But in the same work cited by Whelan , Posner stresses that that this “attention to consequences has disciplinary force, slowing the rush to emotional judgment,” and prompts the jurist “aided by lawyers and social scientists…to investigate consequences systematically.” Id. at 122. Contrary to the impression left by Whelan’s selective quotation, Posner contrasts this approach with one more heavily dependent on and traditionally criticized for “the substitution of personal beliefs and emotions—at best of common sense (which often is untrustworthy)….” Id. at 353. “The judiciary needs better tools for deciding cases,” he writes, which means for Posner “realism grounded in modern analytical and empirical methods, realism that goes beyond the hunch.” Id.