Chief Justice John Roberts concurred with the Supreme Court’s liberals today in June Medical Services v. Russo, overturning a Louisiana law that imposed on abortion providers the same modest requirement imposed on all ambulatory care clinics in the state—that they have admitting privileges at a local hospital. He did so, he said, because the case was very similar to the case of Whole Woman’s Health v. Hellerstedt, in which the Court overturned a similar Texas law four years ago. Roberts was actually a dissenter in that earlier case, and said today that he continues to believe that case was wrongly decided. But he still thought it should apply simply as a precedent.
“The question today,” Roberts wrote, “is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” The answer should be ‘yes,’ he insisted, on the basis of the principle of Stare Decisis, by which prior decisions of the Court are adhered to by default absent strong reasons to regard the underlying matters differently. To defend this particular application of Stare Decisis, Roberts pointed to several venerated voices, including Alexander Hamilton (in Federalist 78) and a number of prior decisions of the Court. But he began these references to sources with Edmund Burke, writing of Stare Decisis that:
This principle is grounded in 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. Because the “private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.” 3 E. Burke, Reflections on the Revolution in France 110 (1790).
Justice Clarence Thomas, in his dissent, took proper umbrage at this abuse of Burke, writing:
THE CHIEF JUSTICE advocates for a Burkean approach to the law that favors adherence to “‘the general bank and capital of nations and of ages.’” Ante, at 3 (quoting 3 E. Burke, Reflections on the Revolution in France 110 (1790)). But such adherence to precedent was conspicuously absent when the Court broke new ground with its decisions in Griswold and Roe. And no one could seriously claim that these revolutionary decisions—or Whole Woman’s Health, decided just four Terms ago—are part of the “inheritance from our forefathers,” fidelity to which demonstrates “reverence to antiquity.” E. Burke, Reflections on the Revolution in France 27–28 (J. Pocock ed. 1987).
He’s right, of course. But there’s a more basic problem with the Chief Justice’s resort to Burke. In the passage Roberts cites (as well as the one that Justice Thomas cites), Burke is talking about judgments made by statesmen, not by judges. And it’s not as though he never expressed any views about how judges should think about precedent. That’s actually a subject Burke took up explicitly (as my friend Jeremy Rozansky points out in a forthcoming essay), especially during the years of the trial of Warren Hastings.
Burke described precedents as “one ground, though only one ground, of legal argument,” and said that before they could be treated as authoritative they needed to be tested against five crucial criteria:
They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles, which over-ruled precedents, and were not to be over-ruled by them.
The Chief Justice did not refer to any such criteria in thinking through his defense of a decision he disagreed with just four years ago. And if he had, it isn’t likely that his concurrence today would have withstood scrutiny under them.
A sophistic abuse of a barely-relevant quotation is obviously the least of the problems with Roberts’s concurrence. But it is indicative of the broader sophistry of the whole. Precedent is very important, in the work of a judge as well as in the work of a political leader. But it can’t just be used as an excuse to avoid responsibility, in either case. Only when we see that can we expect to live in “good and constitutional times.”