In a rich and interesting essay in the new issue of National Affairs, Jeremy Rozansky disputes “modern legal scholars,” such as David Strauss and Cass Sunstein, who “routinely look to [Edmund] Burke as a kind of theorist of precedent—a conservative who prefers stare decisis to original meaning.” According to Rozansky, that “conventional view”—also recently embraced by Chief Justice Roberts—confuses Burke’s view of statesmanship with his view of judging.
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.”