You remember there was the mea culpa, then the walkback. (My take on it was in the Daily Beast: Why Judge Posner Changed His Mind on Voter ID Laws, Daily Beast, October 23, 2013).  Now comes something of Judge Posner further tying himself into knots over this in an interview with the ABA Journal:

JC: You somewhat famously “pleaded guilty” to having authored the voter ID case, Crawford v. Marion County Election Board, that ultimately went to the Supreme Court. You authored an opinion holding the voter ID law in Indiana constitutional, and the Supreme Court then affirmed. Later, you “pleaded guilty” and it was basically reported that you had done a mea culpa over your decision. However, you took the position that “No, I was not making a mea culpa. I was just saying I was pleading guilty to having authored the opinion.” Am I correct?

RAP: No, what I said I pleaded guilty to was not having come out the wrong way in that case. In Reflections on Judging, where the mea culpa appeared, I was complaining about judges not knowing enough. I was pleading guilty to not having in-depth knowledge of the problem of disenfranchisement created by voter ID laws. What we (the judges on the panel assigned to the appeal) were presented with was the opponents of the Indiana voter ID law saying that having to produce a photograph of yourself, either a driver’s license or a photo from the local government office, at the polls would discourage people—especially those without a car—from voting. So, they argued, this is a scheme to disenfranchise the poor people, presumably mostly Democrats. The argument on the other side was that there is a problem of voter fraud. You have people impersonating the registered voter and the election officials can’t do anything about it because there’s no requirement that the voter produce a photo ID. We weren’t given any information about the incidence of fraud or the incidence of deliberate disenfranchisement. We were just given arguments. And I said in the opinion that we didn’t want to get into this. We didn’t want to micromanage election rules.

What has happened since is that more evidence has emerged that these voter ID laws are intended to disenfranchise Democrats. That evidence either didn’t exist when Crawford came before us or the lawyers didn’t present it to us. I should have done more looking, but I’m not sure the evidence actually existed at the time.

There have been cases where judges have said, usually after they’ve retired, that they are sorry they voted a particular way in a particular case. The late Justice Lewis Powell said that about Bowers v. Hardwick, the Georgia sodomy case, later overruled, which held that homosexual sodomy is not constitutionally protected activity, even between consenting adults. I’d say that for me, for everybody in the judiciary, there’s probably a high error rate. The law is often unclear, the facts typically underdeveloped. I’m sure I’ve voted erroneously in an unknown number of the 6,000 cases that I’ve heard argument in. I don’t think a judge should spend his time grading himself on the cases that he voted on many years ago.

JC: So do you think you got it wrong in Crawford?

RAP: I don’t know because I don’t know what the evidence was that was available then. If there was no evidence available—it was just guesswork or just a hunch, just the two major parties clashing over this for partisan reasons—then I think we were right. When in doubt, it doesn’t make sense to create a whole new head of federal jurisdiction requiring minute supervision of local election officials. If there was a lot of evidence that the voter ID law was disenfranchising honest voters rather than preventing fraud, and I just missed that evidence, then probably I was wrong.