The Corner

Law & the Courts

Roberts vs. Burke

Chief Justice John Roberts presides during the final votes in the Senate impeachment trial of President Trump in the Senate Chamber at the U.S. Capitol in Washington, D.C., February 5, 2020. (U.S. Senate TV/Handout via Reuters)

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.”

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.

Most Popular

Sports

The NFL Is on the Brink

The National Football League celebrated its 100th anniversary last year. This should be a time of self-congratulation for the brutal sport, which has no similar counterpart outside the United States. The NFL’s megaprofits dwarf those of other professional sports in the U.S. The Super Bowl, not the World ... Read More
Sports

The NFL Is on the Brink

The National Football League celebrated its 100th anniversary last year. This should be a time of self-congratulation for the brutal sport, which has no similar counterpart outside the United States. The NFL’s megaprofits dwarf those of other professional sports in the U.S. The Super Bowl, not the World ... Read More
U.S.

Did the Times Print an Urban Legend?

This week, the Times brings us a story from Methodist Hospital in San Antonio. The headline is: "Texas Hospital Says Man, 30, Died After Attending a ‘Covid Party,’” and what we get is a story with one source. The story reveals itself in three paragraphs: A 30-year-old man who believed the coronavirus ... Read More
U.S.

Did the Times Print an Urban Legend?

This week, the Times brings us a story from Methodist Hospital in San Antonio. The headline is: "Texas Hospital Says Man, 30, Died After Attending a ‘Covid Party,’” and what we get is a story with one source. The story reveals itself in three paragraphs: A 30-year-old man who believed the coronavirus ... Read More

Peak Jacobinism?

The Jacobin Left is just now beginning to get edgy.  A few of its appeasers and abettors are becoming embarrassed by some of the outright racists and nihilists of BLM and the Maoists of Antifa — and their wannabe hangers-on who troll the Internet hoping to scalp some minor celebrity.  The woke rich too ... Read More

Peak Jacobinism?

The Jacobin Left is just now beginning to get edgy.  A few of its appeasers and abettors are becoming embarrassed by some of the outright racists and nihilists of BLM and the Maoists of Antifa — and their wannabe hangers-on who troll the Internet hoping to scalp some minor celebrity.  The woke rich too ... Read More

Even Saints Can Get Canceled

The vandals in St. Louis have a new target: St. Louis. The American city began as a French settlement in Spanish Louisiana. The French fur traders who set up shop there named it for Louis IX, the sainted French king whose Christian zeal and personal integrity caused him to be regarded by his contemporaries and ... Read More

Even Saints Can Get Canceled

The vandals in St. Louis have a new target: St. Louis. The American city began as a French settlement in Spanish Louisiana. The French fur traders who set up shop there named it for Louis IX, the sainted French king whose Christian zeal and personal integrity caused him to be regarded by his contemporaries and ... Read More