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01/13/2021

Jeremy Rozansky on Precedent and Burke
Michael Ramsey

At National Affairs, Jeremy Rozansky: Precedent and the Conservative Court. From the introduction: 

The [Supreme Court's] recent overrulings [of prior cases] have provided an opportunity for the justices to reason about the nature and authority of judicial precedent. To the nation's great benefit, several justices in the conservative majority have forthrightly described the conditions under which they would vote to overrule precedent. By publicly elaborating criteria for overruling past decisions, these justices have provided a way for the governed to hold them accountable to a neutral set of principles. They also offer some valuable clues as to which way the Court's new majority may be headed and the internal divisions that may characterize it. More important still, their discussions illuminate the role and the limits of judicial authority in our constitutional system.

And introducing the discussion of Burke:

A conservative looking to take sides in these debates has many proof-texts to choose from. The writings of The Federalist and the opinions of Chief Justice John Marshall and Justice Joseph Story may be especially relevant, since their discussion of the "judicial power" vested by the Constitution will have some legally binding force for the originalist. But frequently these debates also focus on the Anglo-Irish philosopher-statesman Edmund Burke, who may have some particularly useful insights to offer.

Before serving as a member of British Parliament, Burke studied law. He trained at Middle Temple, one of London's four Inns of Court, around the same time as John Dickinson, the conservative American founder and author of Letters from a Farmer in Pennsylvania. Burke is reputed to have called a legal education one that "sharpens the mind by narrowing it" and, despite his training, determined never to practice as a barrister. Yet the common law clearly left an impression on his thought. Indeed, if one takes a close look at many of the most quotable and essential passages in Burke's writings, one usually finds a metaphor from the English common law of trusts, agency, or property.

Because of these passages, modern legal scholars routinely look to Burke as a kind of theorist of precedent — a conservative who prefers stare decisis to original meaning. As luminaries like David Strauss, Cass Sunstein, Thomas Merrill, and Ernest Young have described it, Burkeanism begins from a perception of the limits of individual reason. Strauss summarizes the Burkean's beginning proposition as the acknowledgement that "no single individual or group of individuals should think that they are so much more able than previous generations." Instead, it advises we look to traditions and other multigenerational institutions that aggregate both the insights of many limited minds and the knowledge gained through centuries of trial and error — what Burke called the "general bank and capital of nations and of ages" — which are presumed wiser than any individual's reasoning.

...

Chief Justice Roberts explicitly took up this conventional view of Burke at the end of the Supreme Court's most recent term. In June Medical, he cited Burke for the proposition that judges should adopt "a basic humility that recognizes today's legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them." Ironically, Roberts was defending his reliance on a precedent that was merely four years old. Nearly all the current justices had been the first to try and answer the question posed in that case, a point Justice Thomas made with his own quote of Burke. As Thomas put it, a true Burkean respects not just any prior decision, but only those decisions old enough to be revered as an inheritance. Yet Thomas did not ultimately disagree with the conventional view of Burke as an expositor of the wisdom of precedent; he merely rejected the idea that Burke would presume wisdom from a four-year-old decision.

There is certainly some truth to the conventional view of Burke. In Reflections on the Revolution in France, Burke praised the common-law "science of jurisprudence" as "the pride of the human intellect" and "the collected reason of the ages." Yet this picture of his thought is fundamentally incomplete....

Via Ed Whelan at NRO Bench Memos, who comments;

By Rozansky’s account, a “basic mistake the conventional view of Burkean jurisprudence makes is to think of judicial precedent as law” rather only as evidence of what the law is. (The same mistake is routinely made by those who refer to Supreme Court decisions as “constitutional law”—a bad practice reinforced by decades of legal miseducation.) Burke “believed a precedent should be followed only if it can prove itself to be good evidence of the law” (my emphasis), and he “is therefore even less friendly to precedent as such than is Justice Thomas.”

Burkean jurisprudence allows a Supreme Court justice to consider “a whole host of prudential factors” in deciding whether to grant review of a case. But “[w]hen the question of overruling is squarely presented to the Court, Burke offers the justices no justification for upholding an erroneous precedent.”