That’s the title of an excellent new law-review article by Erin Hawley. In his concurring opinion two years ago in June Medical Services v. Russo. Chief Justice Roberts invoked Edmund Burke in support of his decision to adhere to a four-year-old precedent that he (in his words) “continue[d] to believe … was wrongly decided.” Taking a much deeper dive into Burke’s views, Hawley explores how those views bear on the decision whether to overturn Roe v. Wade. Here is her concluding paragraph:

Adherence to precedent, even wrong precedent, may sometimes be necessary to “avoid an arbitrary discretion in the courts.” But the Court’s abortion cases are not entitled to traditional stare decisis: they are egregiously wrong, hopelessly unworkable, and remove from democratic debate a divisive social issue. To adhere to a precedent that is so clearly wrong and so obviously harmful does nothing to promote the rule of law. Edmund Burke believed in the persuasiveness of historical wisdom, but he would caution that the precedent must first possess certain qualities to be accorded the “force of law.” Roe does not possess these qualities. It was not a humble decision but a breathtaking break from tradition. It has no part in the bank and capital of the nations and ages but is an abrupt historical aberration. The Court’s abortion jurisprudence fails Burke’s test because it is contradictory, disagreeable to general legal principles, and decided in a time when the Supreme Court was willing to extrapolate relying on emanations from the text of the Constitution. To say that one must stick with Roe and its progeny is to suggest that the judicial branch cannot err. But humility is best shown in the ability to admit that one was wrong. The humble approach is to reverse Roe v. Wade.