Politicians of the executive and legislative breeds have been known to say "I was wrong," but mea culpas are almost unheard of in the high reaches of the judicial branch, where respect for its infallibility is supposed to preserve trust in the courts.
But of late we have seen judicial giants, reflecting on their careers, say that they had erred in some of the great cases of our time. They happen to have been Republican judges — that is, they were appointed by Republican presidents and as active judges had mainly followed the course expected of them.
In the spring, Sandra Day O'Connor, the first woman justice of the U.S. Supreme Court, was talking about her 20 years on the court with editors of the Chicago Tribune, the unofficial organ of Midwestern Republicanism. About the court's most far-reaching decision of our time, Bush v. Gore, in which it halted the Florida vote recount and essentially declared George W. Bush the next president, O'Connor regretted casting the decisive vote.
The court, she said, probably should have refused to accept the appeal: "We're not going to take it. Goodbye." But she and four other Republican justices voted to hear it and granted the request by Bush's lawyers. It was not she but Antonin Scalia who wrote the brief order. Counting questionable ballots (remember those hanging chads?), Scalia said, "threaten[s] irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." The order gave Bush Florida and the presidency by one electoral vote while he lost the national popular vote by 550,000.
O'Connor did not exactly embrace the dissenting opinion, penned by another straying Republican, John Paul Stevens, who said the decision would rattle "the Nation's confidence in the judge as an impartial guardian of the rule of law."
But she was clearly troubled by her pivotal vote. Jeffrey Toobin in the New Yorker described it as a political journey for the justice. She had been the Republican leader of the Arizona Senate before President Reagan appointed her to the court, but she most admired the first President Bush — for her, the quintessential Republican president. So on election night 2000 she was avidly rooting for the son. It did not seem so imprudent to stop the recount and hand the job to the man she thought best suited for it.
She soon retired so Bush could appoint her successor. She became deeply disillusioned with him on many counts, not least of which was his appointment of hard-right justices committed to perceived Republican causes that veered far from what she considered good conservative orthodoxy. She was publicly enraged by the majority's Citizens United decision, which allowed vast secret wealth to be pumped into elections.
Then last week O'Connor appeared in robes again at the Supreme Court, this time to marry a gay couple from Washington. The symbolism of her change of heart was apparent, although as a justice O'Connor had never decided a question about gay marriage. But in 1986 she and her legal twin, Anthony Kennedy, had cast the deciding votes in Bowers v. Hardwick, where the court said states like Georgia and Arkansas did not violate the U.S. Constitution by criminalizing consensual homosexual acts.
O'Connor's symbolic act gave implicit but powerful blessing to the Supreme Court majority this spring in a California case that implied that state gay-marriage bans like Arkansas's would be found unconstitutional once the right case arrived there. (Perhaps that will be Arkansas's.)
Last, and more to the point, was the comment in the latest book by Judge Richard A. Posner, senior judge of the U. S. Seventh Circuit Court of Appeals, that he and a colleague were wrong in 2007 when they upheld an Indiana law that required people to show a government-issued photo identification to exercise their right to vote.
Posner, a Reagan appointee, is considered the leading legal theorist of our time. George W. Bush was pushed to replace O'Connor with Posner in 2001, but he was considered too old and too unreliable on social and economic issues. He confirmed that view last year when he remarked, "I've become less conservative since the Republican Party started becoming goofy."
Republican legislatures and governors have been enacting the photo ID laws across the South and Midwest, including Arkansas this year, as a way of suppressing the votes of groups that are least likely to have driver licenses and most likely to vote Democratic — minorities, the poor and the disabled and elderly.
Vote suppression was only a Democrat theory back then and Posner said two of the three judges just accepted the Republican premise that voters were committing widespread fraud by pretending to be someone else and voting for them. It has become unmistakably clear, Posner said, that the design is simply to suppress votes, not to check election fraud.
The Supreme Court upheld Posner, 5 to 4. The now retired Justice Stevens, who wrote that opinion, too, said last week that given the weak factual record of the Indiana case he had to uphold Posner's ruling but that historically the dissenters at both levels and the reformed Posner were right.
Preventing vote fraud is supposed to be the compelling government interest that allows it to impinge upon people's right to vote. The Republican chief justice, John Roberts, wrote in a concurring opinion that while it might be true there was no record of people impersonating other voters it must surely go on. In other words, when you aren't given facts to support you, supply them yourself.
The handicap of appellate jurisprudence is that reviewing judges cannot search for the essential facts in a case but must rely on the trial court to have developed them. The distinction of the political judiciary of the past 25 years, illustrated from Bush v. Gore to the voter ID laws, is that if you haven't been given facts that are suitable to the cause, imagine them.