John Armor: Judging the Judges, and the Reporters

On 24 September, the New York Times published an article on the decision of the Circuit Court of Appeals in Chicago, which approved the Indiana voter ID law in January, in a divided decision. The losing plaintiffs asked the whole circuit to rehear the case, which it just rejected, so the decision stands.

Both dissenting Judge Terence T. Evans in the 2-1 decision, and reporter Adam Liptak, the reporter on the story, demonstrated a profound misunderstanding of the role of judges in the American political system. But first, the article denigrates the well-respected Judge Richard A. Posner, who wrote the majority decision.

Judge Posner wrote, “It is exceedingly difficult to maneuver in today’s America without a photo ID. Try flying, or even entering a tall building such as the courthouse in which we sit.” The reporter immediately says, “somewhere between 13 million and 22 million Americans of voting age, most of them poor, get by without driver’s licenses….” No source is given for this number. Nor does it deal with the fact that millions of those living in the US are illegal aliens, who in most cases do not have drivers licenses, and who should not be voting in American elections, anyway.

The article sneers in print, “Judge Posner seemed to think it a small burden to ask such people to get a photo ID in order to vote.” The article does not note that anyone who wants to present a $20 check at the grocery store is subject to the requirement of a picture ID. And most states make picture IDs available for free, to those who cannot pay for them.

The article implies that there is no factual need for such a voter ID law. It says, “As far as anyone knows,” Judge Posner conceded, “no one in Indiana, and not many people elsewhere, are known to have been prosecuted for impersonating a registered voter.” Neither the lawyers in the case nor the reporter afterward bothered to punch up “voter fraud” in any computer program. It would have produced dozens of pending cases in at least five states, involving more than 10,000 false entries, all apparently provided by a national organization, ACORN.

The article closes with a quote from the dissent: “Is it wise,” Judge Evans asked, “to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table?”

This demonstrates the failure to understand the role of a judge. The “wisdom” of a law is never the province of a reviewing judge. All laws involve trade-offs between benefits and liabilities. Usually, that is a balance between the desirability of the program against the undesirability of more taxes to pay for it. Whether a given choice is “wise” is committed to elected representatives. If they are wrong in their decisions, they can be replaced by better, and wiser, representatives in the next election.

Federal judges are subject to no such correction. That is precisely why judges should only determine whether the action of a legislature, or of Congress, is within the limits of the powers granted by their constitutions. To consider whether a law is constitutional has nothing to do with whether an unelected judge in his personal opinion believes that the law is wise.

Judges who think and write this way are unfit to serve on either state or federal courts. And reporters who believe this is a valid argument in a case on the Constitution are unfit to report on decisions made by courts. Such judges and such reporters, if they are genuinely interested in the “wisdom” of any political decision, they are welcome to step down from their present positions, run for the legislature. Once elected, they will have a legitimate right to consider the wisdom of any proposed law that may come before them.