Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.
A brief observation about the problems of judicial Burkeanism: In June Medical LLC v. Russo, the Chief Justice provided the decisive fifth vote to invalidate Louisiana abortion regulations, writing that the regulations were on all fours with similar Texas abortion regulations invalidated by a 5-3 vote four years ago in Whole Womens’ Health v. Hellerstedt. Although the Chief dissented in the earlier case, he claimed that his vote in June Medical was dictated by stare decisis. In the key passage of his concurrence in the judgment, the Chief appealed to the Burkean virtue of epistemic humility:
This principle [of stare decisis] 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).
This Burkean argument suffers from a paradox, however, which causes the Burkean logic to undermine itself, and which the Chief’s concurrence vividly illustrates. If the very first decision freezes the law forever, obliging all subsequent Justices to put aside their disagreements permanently in the name of stare decisis, then the “bank and capital of nations and of ages” shrinks radically. The only depositors to the bank will be the Justices in the initial majority, which means in practice that a majority of only one or two will frequently determine the law forevermore. From a Burkean standpoint, it is breathtaking epistemological arrogance to think that one or two Justices, deciding at a single time under conditions of sharply limited information, should be able to determine the permanent course of the law. But the effect of the Chief’s approach is to require Burkean Justices to conform to the initial, maximally arrogant decision; conversely, more information would be contributed to the stock of epistemic capital if later Justices treated the second or subsequent case as one of first impression. The self-undermining approach of the Chief’s concurrence, then, actually embodies a kind of judicial hubris cloaked in the garb of humility. (I will leave it to other commentators to speculate about why a veneer of humility seems so often to appeal to the Chief Justice).
The Chief Justice’s confusion over the logic of judicial humility in a system of precedent, then, inflicts a harm that, ironically enough, transcends the case at hand and creates a malign methodological precedent for future cases. But this is not to say that a system of precedent cannot be justified by political morality. It is to say that if and insofar as the main argument for precedent is one of epistemic humility, then freezing the very first decision on a given point is a spectacularly bad idea. Various legal systems have addressed this very risk in various ways. On one account I have heard, whose truth I cannot evaluate, to establish stare decisis, the Mexican Supreme Court must issue five decisions on the same point without contradiction. Even if this is in fact false, the idea makes a great deal of sense; a number of other civil-law jurisdictions in Europe and Latin America pursue similar approaches. Indeed, in the history of the common law as well, there was a loosely defined idea that a single decision was not enough to create a precedent; only a string of two or more decisions could do so. Such a system has the epistemic advantage that precedent is tested by multiple courts and judges, over time, before becoming woven into the fabric of the law.
This civil-law approach, and older common-law approach, is really just one aspect of the classical legal tradition, which took into account the views of the many courts participating in the ius commune and the whole vast inter-jurisdictional community of the ius gentium, rather than treating precedent in sharply positivistic fashion as an act of sovereign law-declaration given at a single time and then binding unless and until repealed. The classical approach represents true judicial humility, whereas the positivist approach puts maximum strain on the epistemic capabilities of a single bench. Here as elsewhere, a return to the classical approach puts precedent into a healthy relationship to the legal system.
Adrian Vermeule