Judicial Activism: "What the other side does while we play by the rules!"

Before I discuss my critiques of McCain's speech yesterday on judicial activism, as a partisan Democrat, I'd like to request that he continue to give more speeches along these lines.

Given all the internecine fighting among Democrats over the course of the presidential campaign, I can think of few better ways to unite the Democratic party than hearing McCain loudly proclaim his desire to move the Supreme Court rightward. As much as Clinton supporters may loathe Obama and Obama supporters may loathe Clinton (and those numbers will go down drastically over the course of the general election), many will be scared shitless by the prospect of President McCain replacing the aging "liberal" justices (more on that later), Stevens (age 88), Ginsburg (age 75), Breyer (age 69) and Souter (age 68) with "people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist." (As an aside, I'm curious why McCain repeatedly leaves out Scalia in naming his model justices...)

For Democrats wanting to show a stark difference between the candidates and the long-term legacy their administrations would leave, it doesn't get much better than this. More Americans already think the Court is tilting too conservative than too liberal, yet McCain has just announced his intention to accelerate this trend.

In general, do you think the current Supreme Court is too liberal, too conservative or just about right? (9/14-16/07)

Too Liberal: 21%
Too Conservative: 32%
About Right: 43%
Unsure: 5%

In his speech, McCain repeats the typical Republican rant against judicial activism:

For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate and confirm better judges.

...

The moral authority of the judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to cehck the abuses of other branches of government when it cannot even control itself.

Oddly enough, I agree with everything McCain says here. The judiciary is the only unelected branch of government. Unlike the executive and legislative, its legitimacy doesn't come from its representation of the will of the people, of having been voted into office. Rather, its power derives from its integrity. It must maintain its image of being apolitical, of deciding cases based on their merits and according to the laws passed and executed by the elected branches of government, rather than by creating rationales that support preferred outcomes. As McCain argues,

In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of "judicial activism." But real activism in our country is democratic. Real activists seek to make their case democratically -- to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don't seek to win debates on the merits of their arguments; they seek to shut down debates by order of the court.

This very notion was explicitly stated by Justice John Paul Stevens, both in, and in response to, the Court's decision in the controversial eminent domain case of Kelo v. New London. In the majority opinion, Stevens wrote that "]n]othing in our opinion precludes any State from placing further restrictions on its exercise of the takings power... The necessity and and wisdom of using eminent domain... are certainly matters of legitimate public debate." Speaking before the Nevada Bar Association weeks later, Stevens declared that his own ruling was "unwise," but he "was convinced that the law compelled a result that [he] could have opposed if [he] were a legislator."

McCain, however, chose Kelo of all cases as one of three examples of judicial activism to mention in his speech. In all three cases, however, he attacked the Court's ruling without providing any rational for why they were wrong. They were wrong, it aseems, simply because they produced a result with which McCain disagreed. In each case, he criticizes their conclusions, yet he never engages with their logic, precisely what he accuses activist judges of doing.

In the case of Kelo, Connecticut law specifically allows eminent domain to be used to further economic development. Rather than lobby for Connecticut to change its law, McCain castigates the Supreme Court for upholding it, railing that "in the hands of a narrow majority of the Court, even the basic right of property doesn't mean what we all thought it meant since the founding of America. As the New York Times pithily points out, that definition has, by all accounts, changed considerably: "He did not mention that in 1789 many women could not own property, and African Americans were property, but he did criticize the idea that values evolve over time." Nor did he mention Connecticut's General State §8-186, upon which the Kelo decision revolved: "The economic welfare of the state depends on the continued growth of industry and business," and "that permitting and assisting municipalities to acquire and improve unified land... for industrial and business purposes... are public uses."


Moreover, study after study has shwon that it is the judges McCain declares to be models of restaint and judicial passivity (I guess that would have to be the opposite of activism) that are, by empirical measures, the worst offenders against his own standards.

In a 2005 New York Times op-ed entitled "So Who Are the Activists?" Yale Law's Paul Gewirtz and Chad Golder define a judge's activism as how often they have voted to strike down a law passed by Congress and signed by the president. As they explain,

Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act of "great delicacy, and only to be performed when the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like a reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994 [NB: this was before Alito and Roberts replaced Rehnquist and O'Connor] by our count it has upheld or struck down 64 Congressional provisions.

The results of their study were stark. The percentage following each justice's name is the percentage of those 64 Congressional provisions they voted to strike down:

Thomas: 65.63
Kennedy: 64.06
Scalia: 56.25
Rehnquist: 46.88
O'Connor: 46.77
Souter: 42.19
Stevens: 39.34
Ginsburg: 39.06
Breyer: 28.13

They conclude that "Those justices often considered more 'liberal' - Breyer, Ginsburg, Souter and Stevens - vote least frequently to overturn Congressional statues, while those often labeled 'conservative' vote more frequently to do so. At least by this measure, the latter group is more activist."

In a similar study ("Who are the bench's judicial activists?") Chicago Law's Thomas Miles and Cass Sunstein examined the court's record from 1989 through 2005, looking at which justices were the most "political:"

We examined all cases in which members of the court, using settled principles, evaluated the legality of important decisions by federal agencies, such as the EPA, NLRB, OSHA and FDA.

We used clear and simple tests to code the decisions of these agencies as either liberal or conservative. For example, we counted an environmental regulation as liberal if it was challenged by industry as too aggressive, or as conservative if it was challenged by an environmental group as too lax.

We used equally simple tests to code the decisions of the justices. If a member of the court voted to uphold conservative and liberal agency decisions at the same rate, we deemed him neutral, in the sense that his voting patterns showed no political tilt. If a justice showed such a tilt, we deemed him partisan. If a justice regularly voted in favor of agencies, we deemed him restrained, because he proved willing to accept the decisions of another branch of government. If a justice was unusually willing to vote against agencies, we deemed him activist, in the literal sense that he frequently used judicial power to strike down decisions of another branch.

Their results?

The Judicial Neutrality Award, for blind justice, goes to Justice Anthony Kennedy. From Kennedy's voting patterns, we are unable to detect even the slightest political tilt. He upholds liberal and conservative decisions at an identical rate -- slightly more than two-thirds of the time. Justice David H. Souter, a fellow GOP appointee, is the runner up.

Justice Clarence Thomas is the winner of the Partisan Voting Award for the most politically skewed voting pattern. When the agency decision is conservative, Thomas votes in its favor 84% of the time. But when the agency decision is liberal, Thomas votes in its favor merely 38% of the time -- a remarkable 46% swing.
Partisan voting can be found among some of the court's most liberal members as well. Justice John Paul Stevens is the runner up -- with a 40% swing.

...

The Judicial Restraint Award for the most humble exercise of judicial power goes to Justice Stephen G. Breyer. Overall, he votes to uphold agency decisions more than four-fifths of the time. Notably, Breyer votes to uphold conservative decisions 64% of the time.

The Judicial Activism Award, for aggressive use of judicial power, goes to a most surprising winner: Justice Antonin Scalia. He upholds agency decisions only about half the time. this is an impressively low number. Under established principles, to which all members of the court subscribe, agencies are supposed to get the benefit of the doubt.

Lastly, Chicago Law's Judge Richard Posner and William Landes, in a new paper entitled "Rational Judicial Behavior" examine the votes of all justices from 1937 through 2006. On the basis of their decisions in non-unanimous civil liberties cases and economic cases, they calculated the percentage of cases in which a justice took the conservative or liberal position, and rated them according to their ideology. For the current Supreme Court justices, the following are the fraction of cases in which they took the conservative position, along with their conservative rank out of all 43 justices from this time period.

RANK NAME % OF CONSERVATIVE DECISIONS
1 Thomas 82.2
3 Scalia 75.7
4 Roberts 75.3
5 Alito 74.0
10 Kennedy 64.7
29 Souter 37.4
31 Breyer 37.2
32 Stevens 34.1
35 Ginsburg 31.2

The results are striking: four of the five most conservative members of the Supreme Court over the last 70 years currently sit on the bench (the missing justice, ranking in at #2, was Rehnquist), while the "swing" vote, Justice Kennedy, the 10th most conservative justice. Of the liberals, only Ginsburg cracks the top 10.

As St. John's Brian Tamaha summarizes,

Through a statistical comparison, Posner shows that conservative Justices on the current court more consistently vote in accordance with their political values than do liberal justices; and that the current generation of Republican appointed federal court of appeals judges shows a significantly higher proportion of conservative votes than Republican judges over the past eighty years, (Republican appointed federal appellate judges from 1925-2002 vote conservative 55.8% of the time; Republicans appointed currently sitting judges vote conservative 66.9%); whereas there is no significant change in the conservative voting pattern (49.6%; 49.7%) of Democratic appointed jduges between these two periods, and a reduction in their liberal votes (43.5%; 39.5%)

Put more simply: the Supreme Court Justices and Appellate Judges appointed by Presidents Reagan, Bush and Bush vote consistent with their political views at a higher rate than previous Republican appointees, and at a higher rate than Democratic appointees. That's what the numbers show.

Once put in context, McCain's speech seems absurdly myopic. Given all of his rhetoric, McCain's ideal justices seem to be exactly the opposite of what he should look for in a potential nomination for the Supreme Court. Today's Chicago Tribune aptly sums up the gap between McCain's "judicial activism problem" and his solution for it:

McCain, seeking the Republican nomination for president, is apparently blissfully unaware that the vast majority of current federal judges were appointed by Republican presidents and that seven of the nine sitting U.S. Supreme Court justices and 12 of the last 14 Supreme Court justices were appointed by Republicans. As Pogo once said, "We have met the enemy, and he is us."

A Change of Pace: Nuclear Prolif.

Here is the video briefing that US Senior Intel Officials gave to Congress a few weeks ago concerning the Syrian reactor that the Israelis struck last September. I have it corroborated from other sources that this was indeed the actual video.

McCain on his Judicial Philosophy

The text of McCain's speech on the judiciary can be found here. I'll have comments on it later.

If You Consent To Sex Under False Pretenses, Is It Rape?

An interesting question courtesy of Volokh Conspiracy: what constitutes rape?

First, some background: a controversial case last year in Massachusetts involved a woman who charged her boyfriend's brother with raping her.

She was living with her boyfriend, Duane Suliveres, in the basement of his father's home, reports the Boston Globe. Duane's brother, Alvin, also lived in the house. One morning, when Duane was working a graveyard shift, the woman says she awoke at 3 a.m. to a man walking into her room. It was dark, she couldn't make out who the person was, but naturally assumed it was her boyfriend. She then asked, "Duane, why are you home so early?" No response. The man then climbed into bed with her, took off her clothes and had sex with her. Afterward, the man got up to leave and, once he opened the door, she realized it was Alvin, not Duane.

So, was this rape? The original trial ended in a hung jury in 2006 and then went to the state Supreme Judicial Court, which ruled Thursday that the rape charges should have been dismissed because Massachusetts law clearly defines rape as an act of force. The court may have closely followed the letter of the law, but rape victim advocates are outraged. "The message that the court sends today is ... that a man's ability to obtain sex through fraud with regard to who he is is more important than a woman's fundamental right to control her own body," said Wendy J. Murphy, a professor at the New England School of Law. "It is impossible -- as a matter of fact and law -- to consent to sex with the wrong person."

In response, a state legislature has proposed the following statute be implemented in Massachusetts (emphasis mine):

Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment, or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years.

Volokh argues, however, that this law goes too far in trying to correct the problem of how rape is defined:

Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.

So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)

The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)

Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.

And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)

Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).

In a separate post, he also explains why, conceptually, engaging in fraud to obtain sex should be governed differently than fraud to obtain property by quoting Askew v. Askew, 22 Cal. App. 4th 942 (1994), in which the decision states:

Words of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law fraud and deceit. The idea that a judge, or jury of 12 solid citizens, can arbitrate whether an individual's romantic declarations at a certain time are true or false, or made with intent to deceive, seems almost ridiculously wooden, particularly where the statements were made prior to marriage and the marriage lasted more than 13 years. “The judiciary should not attempt to regulate all aspects of the human condition. Relationships may take varied forms and beget complications and entanglements which defy reason.” Love has been known to last a lifetime, but it has also been known to be notoriously evanescent. These are matters better left to advice columnists than to judges and juries....

Why Cities Really Are Better Than Suburbs

A few weeks ago, Freakonomics authors Stephen Dubner and Steven Levitt argued in the NY Times Magazine that, from an economic perspective, Americans drive too much:

[T]here are all sorts of costs associated with driving that the actual driver doesn't pay. Such a condition is known to economists as a negative externality: the behavior of Person A (we'll call him Arthur) damages the welfare of Person Z (Zelda), but Zelda has no control over Arthur's actions. If Arthur feels like driving an extra 50 miles today, he doesn't need to ask Zelda; he just hops in the car and goes. And because Arthur doesn't pay the true costs of his driving, he drives too much.

What are the negative externalities of driving? To name just three: congestion, carbon emissions and traffic accidents. Every time Arthur gets in a car, it becomes more likely that Zelda - and millions of others - will suffer in each of those areas.

They go on to discuss three policies that could help fix this by forcing drivers to internalize the costs they force on to others: higher tolls, and, in particular, congestion pricing (which I supported in NYC); increasing the gas tax (as much as I hope that Clinton beats Obama, he's 100% right to oppose cutting the gas tax); and, their choice, structuring car insurance so that its cost is dependent on how much you actually drive (the more you drive, the more externalities you produce, the more you pay).

This represents, I hope, the beginning of a discussion about transportation that our country is sorely in need of. "White Flight" from cities and the rise of suburbia didn't just happen on its own, it was driven by policy choices. Whether on purpose or by accident, we've designed a system in which we insufficiently invested in building and maintaining public transportation systems, even in most large cities (see: LA), while providing incentives for car ownership. This is epitomized by The Atlantic's Matt Yglesias, who writes:

You often hear that there are huge swathes of the country in which it's just not feasible to make changes that will lead to people driving less -- there's no other way to get around! This is often quite true in the literal sense. But oftentimes it would be possible to make non-drastic changes that would still make a difference at the margins. Here's a satellite phot of a swathe of Virginia near Tyson's Corner. You'll note that the housing north of the highway is actually very close to all this non-housing stuff south of the highway. but if you live north of the highway you can't walk to the south of the highway stuff just because the streets aren't designed to make that possible.

The necessary changes would, however, be relatively simple to make and would even provide money and jobs for people in the road-building sector -- it's just a case of making sure that roads actually link up with one another (rather than being cul-de-sacs strung together to reach a handful of arterials) and feature sidewalks or bike paths. People are still going to drive for some -- maybe even many -- trips, but at least some of suburban American's trips could be replaced by walking or biking without radically overhauling neighborhoods of constructing massive new transit systems. Among other things, that would take pressure off the roads and fuel supply, leaving those resources available for trips where there genuinely is no reasonable alternative.

Since World War II, this kind of poor planning, and the rise of urban sprawl and exurbs, has fundamentally shifted where Americans chose to live. With record-shattering oil prices that, thanks to increasing energy demands primarily from India and China, are unlikely to go down anytime soon, however, we may be in the midst of a new era of re-urbanization. As University of Oregon economist Mark Thoma noted in February,

I didn't realize how much population flow there is within the US from rural to urban areas and how many rural areas are actually losing population. the first graph shows the breakdown of urban-rural counties, and the second shows counties where population has increased or decreased... "There is a remarkable degree of overlap in the rural counties in Map 1 and the counties with population loss in Map 2".

MSNBC reported on this trend a couple of years ago (I did a double take when reading the article's juxtaposition of "rising fuel costs" and a quote that"Most analysts believe that crude oil prices in the $50s and $60s will be with us for some time,"), which I think will only increase in intensity:

Economist Jack Lessinger points out that suburbia not only depends on autos for commuting to and from jobs, but that everything in the suburbs -- from stores to schools to restaurants -- requires increasingly expensive trips in cars
...
With the cost of gas hovering around $3 per gallon on average in the US, it's worth considering whether a shorter commute would pay for the incremental cost of a more expensive in-city home.

Assuming a full-time job, $3 gas, 26 mpg and 50 cents a mile for maintenance and no parking fees, a 50-mile roundtrip commute costs $646.15 a month, or $6,753.80 a year
...
Moving closer to work boosts your house-buying power. Everything else being equal, a 10-mile roundtrip commute costs just $1550.76 yearly -- saving about $6,200 per year, or $517 monthly. That can add about $80,000 for the total amount of a mortgage loan, says one Chicago lender. The rule of thumb: each $250 a month you can free up for mortgage payment equals roughly $40,000 more you can borrow at current rates.

Assuming that most people balance the cost of a commute (both in time, convenience and financially) against the added space that they can afford by living farther from cities' central business districts, rising gas prices will inevitably lead to a desire for shorter distances to drive for work, shopping, and social trips. My guess is that this will lead to increasing population density in cities, as people flock back to them from the suburbs.

Then again, maybe I'm just biased. I've always subscribed to the John Updike quote, "The true New Yorker secretly believes that people living anywhere else have to be, in some sense, kidding."

First Thoughts on Crawford v Marion

I've only read the controlling opinion (Stevens, Roberts and Kennedy) so far, so I'll probably have more to say later, but there seem to me to be three flaws with it on a first read:

1) Pages 17 and 18 list a small number of Indiana citizens who claim that the law imposes a burden on them that will prevent them from voting. While Stevens argues that the burden on most of these voters isn't excessive, it does in fact seem to be for the homeless. He notes that

The record does contain the affidavit of one homeless woman who has a copy of her birth certificate but was denied a photo identification card because she ddi not have an address. But that single affidavit gives no indication of how common the problem is.

In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes "exessively burdensome requirements" on any class of voters.

Let's see: homeless people have no home. If they have no home, they have no address. Apparently, if they have no address, they can be denied photo ID by the DMV. If they have no photo ID, they now cannot vote. This seems a to be a class of voters who now have an excessive burden placed on them.

2) Stevens references a lower court's decision, which found a study claiming that 989,000 Indiana voters did not have the required photo identification to be "utterly incredible and unreliable," yet we are never told why this is, or presented with any evidence to the contrary. Rather, we are given the district judge's estimate that only 43,000 people don't have the required ID. What the judges estimate is based on is unclear, as is why it should be accepted by the Court while the original study should not be.

3) Precedent requires the State to put forward interests to justify the burden being imposed by its restrictions on voting. The interest put forward by the State is the need to curb vote fraud, yet the State was unable to present any evidence of vote fraud taking place which this law would actually prevent. The Court admits as much, noting that "The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history."This seems a rather large problem with the State's argument. Rather, the State is left to argue that voter fraud has happened elsewhere, yet the evidence is still incredibly weak. As disclosed in footnotes 11 and 12, it boils down to the actions of Tammany Hall's Boss Tweed in the 1860s, and that, in Seattle, after an investigation into fraud in a gubernatorial race in 2005, "One voter was confirmed to have committed in-person voting fraud."

While footnote 12 argues that there have been other examples of vote fraud elsewhere, it admits that "the brief indicates that the record of evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud," both of which would not be curbed at all by this new law.

This seems an example of a solution in search of a problem. The State's compelling interest is to prevent Tammany-style fraud, despite no proof of such fraud ever occuring in Indiana. And for that, it is disenfranchises thousands of voters.

UPDATE:

Courtesy of the Associated Press, reporting on today's Indiana Democratic Primary.

About 12 Indiana nuns were turned away from a polling place by a fellow bride of Christ because they didn't have state or federal identification bearing a photograph.
Sister Julie McGuire said she was forced to turn away her follow sisters at Saint Mary's Convent in South Bend, across the street from the University of Notre Dame, because they had been told earlier that they would need such an ID to vote.
The nuns, all in their 80s or 90s, didn't get one but came to the precinct anyway.
"One came down this morning, and she was 98, and she said 'I don't want to go do that,'" Sister McGuire said. Some showed up with outdated passports. None of them drives.
They weren't given provisional ballots because it would be impossible to get them to a motor vehicle branch and back in the 10-day time frame allotted by the law, Sister McGuire said. "You have to remember that some of these ladies don't walk well. They're in wheelchairs or on walkers or electric carts."

Today's SCOTUS ruling is crazy interesting - I find it difficult to believe that no substantive evidence, or certainly not much, has been found that indicates the identification law does not impose a burden on the poor/disabled/old. Of course, there's an inherent methodological problem in trying to prove that - you have to prove the counterfactual that there had not been the ID law, then would have voted. I want to take a look at the briefs and Amicus submitted in this case.

Also, interestingly, though most of the major newspapers suggest that the court's ruling is a sign. win for those who are proponents of ID requirements and that therefore other states are going to have a very difficult time overturning the ruling, I don't think this is the case. The court ruling applies specifically to Indiana in that the the party arguing for overturning the law did not show that in Indiana there had been a significant burden. However, if one could show that there had been a burden in other states, it's very feasible that the court could rule differently there and then the entire thing could just proceed on a state by state basis. That would also present problems, of course.

http://www.nytimes.com/2008/04/29/washington/28cnd-scotus.html?hp