Edmund Burke is getting a revival these days in the Supreme Court. The Chief cited him in his opinion in June Medical in 2020. Now, an article by Erin Hawley in the Georgetown Journal of Law & Public Policy argues that Burkean judicial humility, properly understood, should present no obstacle to the overruling of Roe v. Wade when the Court decides Dobbs in June. From the introduction: 

This essay will argue that respect for tradition does not weigh in favor of keeping Roe. A deeper dive into Edmund Burke’s writing shows that Burke himself likely would not stay the course in Roe.

First, in the writings featured by the Chief Justice, Burke was addressing a much different situation. He was speaking as a statesman about statecraft, not about judicial doctrine. And stare decisis factors that developed in the common-law era where prior precedent was the best evidence of what the law is, do not necessarily transfer to our system of positive, written law. Finally, Roe is in no way a product of the history and tradition that Burke praised—it is a radical departure from the “bank and capital” of the nations, including this nation.

Second, when in separate writings Burke addressed judicial precedent, he showed support for reexamining precedent. He laid out a five-factor test he believed must be satisfied before a judicial decision was considered precedential. Roe fails at least three of those five factors. Abortion law is not consistent with the general tenor of legal principles. It is contradictory and mutually destructive. And Roe was not decided in good and constitutional times but is a result of purposivism, the prevailing legal theory of the day that allowed judges to make, rather than just interpret, the law.

Burke’s reliance on tradition and history was grounded in twin humilities, a humility that recognized the fallibility of both human and institutional reasoning. Burke would overrule Roe.

Read the article here.

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