There is little left to be said about Judge Posner’s second thoughts, and his further thoughts about those second thoughts, about his voter ID opinion in Crawford v. Marion County Election Board. No one seems satisfied with his various statements—neither critics or supporters of the “ID” movement, and certainly not the lawyers whom he seemed to fault for failing to fully inform the Court about the consequences of ID statutes like Indiana’s. But the frustration directed at him should be tempered, just a little, by this fact: in suggesting that much legal argument before and by the courts is ill-informed about the political process—and thus about the consequences of regulation or deregulation—the Judge has a fair point. And it is a point that applies to legal decision-makers of all kinds—legislators and regulators, as well as judges. Law is proposed, made and litigated on speculation about its effects on the political process that is often, if well-intentioned, groundless; at their worst, these projections are guided by the analyst’s ideological predisposition of the advocate. Adversaries are quick to level this accusation at their opponents and deny the charge indignantly when it comes their way.
Bauer: The Part that Judge Posner Got Right—the Perils of Forecasting in the Regulation of the Political Process
