Precedent and the Conservative Court
In the spring of 2019, the Supreme Court's new majority, which by then included two Trump appointees, overturned one of the Court's decades-old precedents. In Nevada v. Hall, decided in 1979, the Court had ruled one state could not claim sovereign immunity in another state's courts. The Court's 2019 majority, in an opinion authored by Justice Clarence Thomas, concluded that Hall had misread the historical record and that its rule had survived as an outlier.
For Justice Stephen Breyer, who was in the minority, this rationale was not enough. "[J]udges may be tempted to seize every opportunity to overrule cases they believe to have been wrongly decided," he wrote, "[b]ut the law can retain the necessary stability only if this Court resists that temptation." He ended on a foreboding note: "Today's decision can only cause one to wonder which cases the Court will overrule next."
There is reason to wonder. Since 2017, when Justice Neil Gorsuch joined the Court, its justices have overruled past decisions several times. In terms of subject matter, the decisions run the gamut. In 2018, Janus v. AFSCME overruled the 1977 decision Abood v. Detroit Board of Education, holding that a state's collection of public-sector-union agency fees from non-consenting employees violates the First Amendment. South Dakota v. Wayfair overruled two more precedents that year, allowing states to apply a tax on out-of-state purchases when the seller lacks a physical presence in the state. The following year, Franchise Tax Board of California v. Hyatt overruled Hall, while Knick v. Township of Scott overruled Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 opinion that had required property owners to exhaust their remedies in state court before bringing a federal takings claim. Finally, in 2020, Ramos v. Louisiana overturned Apodaca v. Oregon (1972) and incorporated the unanimous-jury right against the states.
It would be a mistake to see the last few years as a frenzy of overrulings. On multiple occasions, the Court elected to hear a case that squarely presented the question of whether to overrule a past decision and then chose not to do so. In 2019, for instance, Kisor v. Wilkie upheld (albeit with refinements) Auer deference — the doctrine that directs courts to defer to an agency's interpretation of its own regulations. Likewise, 2019's Gamble v. United States overwhelmingly affirmed the exception to double jeopardy that allows state and federal governments to prosecute a person for the same crime. Finally, this past year, June Medical Services v. Russo upheld the Court's four-year-old ruling in Whole Woman's Health v. Hellerstedt.
Indeed, by historical standards, the Roberts Court has been remarkably unwilling to overturn past decisions. The Warren and Burger Courts overturned an average of four Supreme Court precedents each term. Even when counting some of its more perplexing statements as overrulings — including declarations that "the court of history" had overruled the 1944 decision of Korematsu v. United States and that the 1896 ruling of Ward v. Race Horse had been "methodically repudiated" — the Roberts Court has overturned, on average, a little over one decision per term.
More recently, some signs have emerged of the Court's increasing readiness to overturn precedent. Since Justice Gorsuch joined the Court in 2017, the average is up to three overrulings per term. The appointment of Gorsuch, along with those of Justices Brett Kavanaugh and Amy Coney Barrett, have and will continue to shift the intellectual makeup of the Court.
The recent overrulings have provided an opportunity for the justices to reason about the nature and authority of judicial precedent. To the nation's great benefit, several justices in the conservative majority have forthrightly described the conditions under which they would vote to overrule precedent. By publicly elaborating criteria for overruling past decisions, these justices have provided a way for the governed to hold them accountable to a neutral set of principles. They also offer some valuable clues as to which way the Court's new majority may be headed and the internal divisions that may characterize it. More important still, their discussions illuminate the role and the limits of judicial authority in our constitutional system.
THE PRECEDENT DEBATES
The Court's deference to its own precedents under the doctrine of stare decisis serves many important functions. It pushes the justices to learn from past example. It allows justices who disagree strongly about fundamental interpretive questions to find points of agreement. While the originalist and the living constitutionalist may disagree about the Constitution, precedent allows each to recognize that, as a factual matter, the Court has decided a given constitutional question before and then permits them to agree to let it stand. Perhaps most important, precedent is good for public faith in the Court as a court of law. If changes in the makeup of the Court caused a sea change in the law, the Court would increasingly resemble a legislature, weakening the case for its independence from electoral politics.
It is an old joke, though, that stare decisis is Latin for "stand by things decided when it suits our purposes." Every justice believes some opinions must be overruled some of the time — the question is which ones those are. For this reason, Justice Breyer's contention that stare decisis is essential because it constrains judges from deciding cases based on the vagaries of preference may be exactly wrong. A judge who believes a past decision was erroneous as law the day it was decided but likes the decision as policy would find that stare decisis enables him to reach his preferred result and uphold the past decision. The norm of adherence to precedent may therefore expand, not constrain, judicial discretion. What is needed to constrain judicial caprice, then, is not the call of mere stare decisis, but rather a clear, cross-cutting test for when precedent constrains a judge — and, equally significant, when it does not.
There exists a stable of what Justice Kavanaugh has astutely called "precedents on precedent" — a series of cases in which Supreme Court majorities or pluralities have elaborated the factors justices should consider when a past decision is challenged. The most noteworthy is Planned Parenthood v. Casey, the 1992 decision that set forth three circumstances in which overruling is permissible. According to Casey, the earlier decision must not only be errant; the rule it presents must also have proven unworkable, the legal doctrine must have developed as to render the decision an "anachronism discounted by society," or the decision's factual premises must "have so far changed...as to render [the] central holding somehow irrelevant or unjustifiable." Even in one of these circumstances, a rule should be preserved if citizens or institutions have relied on it such that its overruling would create "a special hardship."
As the Casey example illustrates, these precedents about precedent do not amount to a clear test, but a murky and impressionistic set of considerations. And they seem to be honored mostly in the breach. The Court has not applied these or any other set of factors to every question of overruling. In fact, the Court's adherence to the Casey factors in Casey itself — which replaced the framework set forth by Roe v. Wade in 1973, preserving only Roe's outcome — is questionable at best.
In truth, the Court is unlikely to come up with a test that each justice embraces in every case, just as the justices are unlikely to come to consensus on interpretive methods. These questions go to the heart of judicial philosophy, and the Supreme Court will always consist of justices with idiosyncratic approaches. Individual justices' candor about precedent, however, facilitates both intellectual honesty from each justice and the development of their individual views.
Justice Thomas has long been thought of as uniquely willing to reconsider past decisions. As he once quipped, stare decisis has force, "but not enough to keep me from going to the Constitution." He was the first to explain his view in the recent spate of separate writings about precedent.
For Thomas, it is vitally important to recognize that ours is a system of written laws. As he explained in a 17-page concurrence in Gamble, stare decisis "has its pedigree in the unwritten common law of England" (emphasis added). In the latter sort of system, the customs, rules, and maxims are not set forth in writing, but rather discerned through various sources and articulated by judges. Judicial decisions under such a system are, to quote William Blackstone, not the common law itself, but rather "the principal and most authoritative evidence" of the unwritten common law (emphasis added).
Thomas's point is that, in our system of written laws, judges need not hunt for such imperfect evidence of the law. Instead, the written Constitution, statutes, rules, regulations, and treaties are the law, and their objective meaning may be ascertained by interpreting their written letter.
The pivotal question of stare decisis for Thomas, therefore, is whether the precedent in question is "demonstrably erroneous," by which he means "not a permissible interpretation of the text." If the past decision is demonstrably erroneous, "the Court should correct the error, regardless of whether other factors support overruling the precedent." Thomas also goes a step further, supporting the Court's discretion to correct errors that are not fully demonstrable. "Federal courts may (but need not) adhere to an incorrect decision as precedent," he writes, "but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law."
Unlike Thomas, Justice Kavanaugh argues in Ramos for the necessity of a special justification before overruling. One such justification is that the prior decision be not just wrong as a matter of law, but "grievously or egregiously wrong." Another is that the prior decision has caused significant negative consequences, including both negative jurisprudential consequences (echoing Casey's concern for workability) as well as "real-world consequences" (citing Brown v. Board of Education). Finally, Kavanaugh asks whether overruling would "unduly upset reliance interests." These statements suggest that, in the absence of an egregious error of law, Kavanaugh will only overcome the presumption that past decisions must stand after making a pragmatic inquiry into the likely benefits and costs of overruling.
For their parts, Chief Justice John Roberts and Justice Samuel Alito have applied the ordinary stare decisis factors — "the quality of [the earlier opinion's] reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision." But they have also spoken at times of curious supplementary factors. Roberts's 2010 concurrence in Citizens United v. Federal Election Commission, for example, alluded to an additional category that seems to depend more on political circumstance than jurisprudence — namely, that a decision's "validity is so hotly contested that it cannot reliably function as a basis for decision in future cases." Perhaps he is speaking here of "the court of history," or perhaps his view is that society must in some sense ratify a court's decision for it to become a meaningful precedent.
Alito, meanwhile, points out that although the Court may agree that a past decision was wrong, the majority that decides a case may not agree on the doctrine to replace it. As a result, doctrinal change is rarely clean and frequently produces only half-measures. Such a concern came to the fore last year in Gundy v. United States, in which the litigants asked the Court to invalidate a statutory provision under the non-delegation doctrine for the first time since 1935. Though Alito joined the liberals in upholding the statute, he did so not because he agreed with their view of non-delegation, but because, unless the Court's majority was willing to revive the non-delegation doctrine in full, "it would be freakish to single out the provision at issue here." In Alito's view, it is sometimes better to acquiesce to an error than to try to correct it in a way that leaves us with a Frankenstein's monster of a doctrine and the faint hope that the erroneous doctrine will be narrowed piecemeal until it becomes the sort of outlier decision the Court agrees to overturn.
Of course, once a justice pragmatically acquiesces to an error, a whole new set of questions emerges. William Baude, a law professor at the University of Chicago, wonders whether, under Alito's view, it is permissible for a justice to support doctrinal shifts he believes to be erroneous in order to make the doctrine to which he has already acquiesced more palatable. For instance, if a justice determines that the modern non-delegation doctrine subverts the proper constitutional scheme by permitting Congress to give up too much of the power it had over the agencies before they regulate, perhaps he would also be right to support a legislative veto that gives Congress new powers over the agency after it adopts a regulation.
The remaining conservatives on the Court — Justices Gorsuch and Barrett — have not yet written comprehensive accounts of their views from the Supreme Court bench. But there is ample evidence for making informed assumptions about their views. Gorsuch would seem to agree with Justice Thomas's account, as he is the only justice who voted to overrule the relevant precedent in each of the eight recent cases mentioned above. Barrett, meanwhile, devoted a portion of her academic career to the questions posed by stare decisis, and the subject became a major issue during her confirmation hearing. In responding to questions from the Judiciary Committee, she invoked the usual stare decisis factors of reliance interests, the workability of the rule, and developments since the decision was handed down.
In truth, Barrett's academic work has focused less on the particular stare decisis factors and more on the significance of stare decisis for our constitutional order. She has praised stare decisis as "mediating jurisprudential disagreement" in the most contentious cases, discussed the unique category of so-called "superprecedents," addressed the tension between stare decisis and the originalist commitment to the authority of written law, and, perhaps most significantly, identified reasons why the precedent debates have lower stakes than is ordinarily supposed.
A THEORIST OF PRECEDENT?
A conservative looking to take sides in these debates has many proof-texts to choose from. The writings of The Federalist and the opinions of Chief Justice John Marshall and Justice Joseph Story may be especially relevant, since their discussion of the "judicial power" vested by the Constitution will have some legally binding force for the originalist. But frequently these debates also focus on the Anglo-Irish philosopher-statesman Edmund Burke, who may have some particularly useful insights to offer.
Before serving as a member of British Parliament, Burke studied law. He trained at Middle Temple, one of London's four Inns of Court, around the same time as John Dickinson, the conservative American founder and author of Letters from a Farmer in Pennsylvania. Burke is reputed to have called a legal education one that "sharpens the mind by narrowing it" and, despite his training, determined never to practice as a barrister. Yet the common law clearly left an impression on his thought. Indeed, if one takes a close look at many of the most quotable and essential passages in Burke's writings, one usually finds a metaphor from the English common law of trusts, agency, or property.
Because of these passages, modern legal scholars routinely look to Burke as a kind of theorist of precedent — a conservative who prefers stare decisis to original meaning. As luminaries like David Strauss, Cass Sunstein, Thomas Merrill, and Ernest Young have described it, Burkeanism begins from a perception of the limits of individual reason. Strauss summarizes the Burkean's beginning proposition as the acknowledgement that "no single individual or group of individuals should think that they are so much more able than previous generations." Instead, it advises we look to traditions and other multigenerational institutions that aggregate both the insights of many limited minds and the knowledge gained through centuries of trial and error — what Burke called the "general bank and capital of nations and of ages" — which are presumed wiser than any individual's reasoning.
According to Sunstein, "[t]he argument for Burkeanism is that respect for traditions is likely to produce better results, all things considered, than reliance on theories of one or another kind, especially when those theories are deployed by such fallible human beings as judges." This utilitarian defense of tradition has clear implications for jurisprudence. As Young puts it, precedent "allows the judge to tap into a cumulative wisdom that transcends his own rationality," and therefore aids in the determination of "what the correct interpretation is." The accretions of judicial precedents are one such source of wisdom. In this telling, the Burkean judge renders narrow, modest judgments that submerge fundamental issues and strictly adhere to stare decisis.
Chief Justice Roberts explicitly took up this conventional view of Burke at the end of the Supreme Court's most recent term. In June Medical, he cited Burke for the proposition that judges should adopt "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." Ironically, Roberts was defending his reliance on a precedent that was merely four years old. Nearly all the current justices had been the first to try and answer the question posed in that case, a point Justice Thomas made with his own quote of Burke. As Thomas put it, a true Burkean respects not just any prior decision, but only those decisions old enough to be revered as an inheritance. Yet Thomas did not ultimately disagree with the conventional view of Burke as an expositor of the wisdom of precedent; he merely rejected the idea that Burke would presume wisdom from a four-year-old decision.
There is certainly some truth to the conventional view of Burke. In Reflections on the Revolution in France, Burke praised the common-law "science of jurisprudence" as "the pride of the human intellect" and "the collected reason of the ages." Yet this picture of his thought is fundamentally incomplete.
By and large, the conventional picture of Burkean jurisprudence relies on passages in which Burke is discussing not judging, but statesmanship. In fact, the quotes cited by both Roberts and Thomas fit this description. In these passages, Burke explains not how a common-law judge should rule, but how a statesman might learn from the common-law judge. He contends that a statesman should propose policies that are "carefully formed upon analogical precedent, authority, and example," much the way a common-law judge might form an opinion. Burke even suggests that French revolutionaries learn from Blackstone and Edward Coke how to portray a dramatic reformation like the Glorious Revolution as but a "reaffirmance of the...ancient standing law of the kingdom."
It is not self-evident from these passages that everything good in a statesman is good in a judge, or that judging requires no special qualities that would be trivial to a statesman. Burke addressed the judicial craft more directly in several works that are less widely read than Reflections, particularly his speeches during the impeachment trial of Warren Hastings. In the midst of that trial, Parliament dissolved, raising the question of whether the trial had lapsed and Hastings would escape on that technicality, or whether it would resume when the next session of Parliament began. The most recent precedent on the question held that impeachment lapses when Parliament dissolves, which is what most lawyers at the time expected.
Burke, who had initiated the impeachment of Hastings, objected. His arguments about the authority accorded to precedent won the day. These speeches show Burke to be anything but a supporter of the modern judicial doctrine of stare decisis. "[P]recedents," he began, are "evidence of legal tradition" and thus are "one ground, though only one ground of legal argument." Burke then listed several factors that show precedents "to have the qualities fit to render them of full authority in law":
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.
Taken together, these factors downplay the power of any one decision, instead tasking the jurist with taking a long view of judicial decisions. Individual past decisions, according to this view, are not authoritative if they are outliers, or if they're the product of situation-specific motivations. Intriguingly, Burke also rejects decisions that are the product of a dubious or unconstitutional age. Such a factor calls to mind Justice Gorsuch's justification for repudiating Apodaca, which asserted the decision was on shaky ground because it was of a piece with the Burger Court's functionalism, not the formalism Gorsuch favors. For Burke, it referred to the reign of King James II, whose arch-loyalist Parliament had set forth the precedent in the first place.
What's most notable about these five factors is that Burke says they should be shown before a precedent is considered an authority. In other words, past decisions are not presumed authoritative; rather, they gain their authority only after an inquiry into their circumstances and supports. This turns the modern debate on its head. Instead of setting forth a test for when to overrule precedent, Burke articulates a test for when to follow it.
Burke's view of judicial precedent is therefore closest to that of Justice Thomas, who also rejects the presumption that precedents, merely as such, are binding law. As Burke put it elsewhere, were precedents to make law, "the very frequency of Crimes would become an Argument of innocence." In other words, errors remain errors even if such errors become customary. And like Justice Thomas, whose skepticism toward precedent is rooted in his view of the supremacy of enacted law, Burke embraced legislative supremacy, most notably in a speech seeking to restore the power of juries in criminal-libel trials (a power that judges had usurped). Calling "a superintendence over the doctrines as well as the proceedings of the courts of justice" a "principal object" of Parliament under the British constitution, Burke wrote that Parliament was both "better qualified" and "better disposed" to "assert the genuine principle of the laws" than were judges.
Burke, therefore, was not the partisan of stare decisis that Strauss, Sunstein, or Chief Justice Roberts imagine. Rather, he expounded a view in line with other common-law theorists: that precedent is, at best, evidence of the law, and that, like any evidence, it must be scrutinized before its value may be discerned.
TAKING PRESCRIPTION SERIOUSLY
While he was not a theorist of judicial precedent, precedents do play a meaningful role in Burke's constitutional theory. A preference for the humble over the self-assured, for accretion over avulsion, and for the latent wisdom of inheritance over the designs of the latest political science characterizes Burke's view of statesmanship because it characterizes his understanding of constitutions and how they should change. Burke called this understanding "prescription."
Burke borrowed his concept of prescription from Roman property law. For the Romans — and, importantly, for the common law the Romans influenced — the doctrine of prescription held that possession or use over a long stretch of time can lead to a valid claim to land, no matter what the deed to the property may say. Similarly, Burke argued that the political good was best discovered by inquiring into the institutions, practices, and forms that had arisen over a long stretch of time — what he calls the "constitution." Just as prescription helps determine authority to use land, it also helps set the metes and bounds of just political authority.
Burke described prescription as "the most solid of all titles, not only to property, but, which is to secure that property, to government." Such judicious praise (prescription is "solid," not salutary) bespeaks Burke's low view of human nature. He thought an inquiry into the origins of property rights would frequently reveal some initial cruel or violent usurpation, just as an inquiry into the origins of political societies will frequently reveal a founding barbarism. Prescription "mellows into legality governments that were violent in their commencement." For Burke, it is better to work from the old political forms that had survived and adapted than to risk the barbarism inherent in starting from scratch.
Such forms, according to Burke, are likely to have survived and adapted because they served some practical benefit to the community; statesmen, therefore, should seek to discover that benefit. In addition to this consequentialist argument for tradition, Burke also gives an argument from moral anthropology: Political life, he contends, exists in a kind of trust, setting forth obligations to continue what the generations before have started and to bequeath that trust to the generations to come. This moral reality distinguishes human society from that of "the flies of a summer," to borrow Burke's memorable image.
The British constitution exemplified the prescriptive constitutional order. As Burke put it, "by looking backward as well as forward, by the modesty as well as by the energy of their minds," the British had drawn their constitution "nearer and nearer to its perfection by never departing from its fundamental principles, nor introducing any amendment which had not a subsisting root in the laws, constitution, and usages of the kingdom."
Prescription does not require specific actions and outcomes. Instead, it sets the boundaries of the space in which the statesman works. In a nation with a rich and complex inheritance, a statesman working prescriptively — building on what is best within the society to remedy society's defects — has many materials to draw upon and many options for how to build with them.
In this sense, judges in our system are ordinarily prescriptive. They work by applying old holdings to new facts, by ascertaining legal principles from the dicta of opinions past, by reasoning according to inherited canons of interpretation, by taking cognizance of custom. Whether a judge is applying a past decision or overruling it because it is superseded by a higher source of law (say, a written constitution), the judge is working from the "subsisting roots" of the nation's laws.
Thus, prescription offers little guidance in addressing the underlying question of stare decisis: whether to overrule an erroneous precedent. But that is not all there is to Burkean jurisprudence, for prescription may help us think about the more fundamental question of whether a precedent is wrong in the first place.
PRESCRIPTION AND THE CHALLENGE OF WRITTEN LAW
It is not entirely clear what Burke would ask of a judge in a system like ours, which, depending on how you look at it, either enjoys or is burdened by an incredible abundance of written law. Indeed, our system's dependence on this written law is fundamentally what shapes the judge's duty.
One basic mistake the conventional view of Burkean jurisprudence makes is to think of judicial precedent as law, and so it puts precedent on an equal plane with written law. It is a uniquely modern mistake, possible only after the rise of legal realism at the turn of the 20th century. The legal realists taught modern lawyers to think that law is something judges make. Yet in Burke's time (and at the American founding), the common law — what James Stoner calls the "social consensus" — was understood as something to be discovered.
A judge's duty in the latter sort of system is to discern the unwritten common law from the available evidence — which includes judicial precedents. This iterative search for the social consensus obviously carries out prescription's natural model of growth and change. But in the United States, the written Constitution, statutes, ratified treaties, and duly promulgated regulations are law. Thus, the judge is not a primary source of the law's prescriptive change; rather, direct changes to the law are only possible through the constitutionally legitimate processes of amendment, bicameralism and presentment, and executive action. Whether those (perceptible) changes in the law are prescriptive is up to the political branches.
On this basis, it is appealing to conclude that the Burkean judge in our system is a restrained one, consciously maximizing the political branches' discretion to effect prescriptive change. Such an approach would in fact be radically antithetical to the doctrine of stare decisis. After all, many of the most cumbersome limits on the political branches come from precedents in which the Supreme Court exercised its power of judicial review over the actions of those branches. Congress and the president will have the maximum space to legislate prescriptively only if such precedents are reversed.
Yet every time the Court makes space for prescription by Congress and the president, it reduces the domain of the constitutional-amendment process, which also may be prescriptive. Without an inquiry into the materials of our legal tradition, the restrained Burkean cannot answer the essential question of which lawmaking process a given reform must go through. Simply put, the Burkean judge cannot avoid the necessity of sorting through our legal tradition and deciding which materials are more authoritative than others.
So how might the Burkean judge sort through the body of American written law to decide cases? There seems to be both a milder and a stronger version of prescription in legal interpretation, although they are not mutually exclusive and may work well in tandem.
The milder version starts from the premise that all written law is to some degree ambiguous when it is first enacted. There are always circumstances in which it is not self-evident what a given provision will require. As James Madison wrote in Federalist No. 37:
All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.
Laws are liquidated — that is, they are made clear — through a process that resembles Burkean prescription. The course of conduct that follows from the law's enactment, the way the public comes to understand the law, and, yes, the precedents (the "adjudications," in Madison's words) all help to gradually clarify the meaning of the law. Crucially, this kind of Burkean judge believes that, once the meaning of a provision has been liquidated, the meaning is settled. For texts that can bear many interpretations, this weaker form of prescription allows judges to decide on a single interpretation and move on.
The stronger version of Burkean jurisprudence contends that prescription may settle more than ambiguities in the initial law. Under this view, long-standing practice and precedent can override what the judge might believe to be the irrefutably correct view of the text. They may even become "superprecedents" that, despite not being written directives passed through the required constitutional channels, still attain a foundational authority in our law and should not be overturned.
Justice Antonin Scalia decried such a principle as "the adverse-possession theory" of constitutional law, referring to the common-law doctrine that allows hostile occupiers of property to become legal owners. In Scalia's view, the strong version of Burkean jurisprudence should be rejected because it may make the Court's precedents legally superior to the laws Congress has passed and the constitutional provisions the people have ratified. In that sense, judicial precedent becomes a hostile occupier of the political branches' rightful domain.
Much, however, depends on how the strong Burkean identifies those settled precedents and distinguishes them from the precedents open to revision. Burkean jurisprudence does not permit a judge to call a precedent settled merely out of some policy preference. Prescription defines the space for statecraft, permitting reforms that take a "subsisting root" from the laws and customs of the political community. A precedent is settled by prescription only if the act of overturning it lies outside that space — that is, if the precedent has become so fundamental that any rejection of it would be alien to the legal mores of the political community. Usual stare decisis factors like reliance interests are therefore a poor proxy for prescription — while investors might prefer to rely on settled law, they are not strangers to making bets on a contested question. Under the model of prescription, only time and broad accord across the political community can settle a precedent and make it uniquely authoritative.
A BURKEAN COURT
Our constitutional system has a means of identifying and enshrining those settled precedents. Legal doctrines become settled over time not because of the force of the Supreme Court's pronouncements, which are overturned and revised nearly every term, but because of the Court's institutional position and jurisdictional rules. These institutional facets of the Court set in motion an endless interplay between the Court and the people that renders some precedents contested and others unassailable.
As Justice Barrett has explained in her scholarly work, several rules keep the Supreme Court from re-assessing the vast majority of its decisions, causing such decisions, for all intents and purposes, to fall into the "unassailable" category. Foremost among them is the rule that the Supreme Court has a discretionary docket. In other words, the Court selects the questions it wishes to hear. The Supreme Court's rules state that the writ of certiorari may be granted when the lower courts have divided on a question or if the appeal poses "an important question of federal law."
As a rule, lower courts do not divide on federal questions the Supreme Court has clearly answered, so circuit-split petitions rarely lend themselves to overruling Supreme Court precedent. Those based on an "important question of federal law" are more conducive to allowing the justices to overturn precedent. Yet because judicial resources are not infinite, the Court limits the number of cases it hears — as of late, to about 70 cases per year — and usually prioritizes deciding new questions above revisiting old ones. Strategic considerations may also cause a justice to vote against reconsidering a precedent he believes was erroneous. For instance, he may think the current Court will compound or entrench the error, and therefore concludes it is best to let the original error stand.
The Supreme Court is bound in other ways, too. For one, the Court cannot give advisory opinions; it may only hear "cases" and "controversies." If no controversy ever arises that implicates a particular past decision, the Court will not be able to reconsider it. Likewise, in our adversarial system, the Court is ordinarily limited to the issues the parties to the controversy present. If the parties do not ask the Court to reconsider a precedent, the issue has not been presented. The justices, acting as a whole, may raise issues not raised by the parties and solicit amicus briefing, but those cases are the exceptions that prove the rule.
The effect of all these institutional rules is to cause the bulk of the rules declared by the Supreme Court to become settled law. As Justice Barrett has emphasized, they are settled not by any abstract criteria of stare decisis set forth in some "precedent on precedent," but by the reality of the American people's interaction with the courts in the suits they choose to bring, the questions they choose to present, and the justices they help select.
As an example, one might consider the Legal Tender Cases, which are often posed as a kind of test of originalist faith. Because the Constitution speaks only of Congress's power to "coin" money, some evidence suggests that the Constitution did not grant Congress the power to print paper money. But it is unimaginable that the Supreme Court would, a century-and-a-half after addressing the issue, declare paper money unconstitutional. Were the Legal Tender Cases ever to come before the Court again, the Court could feasibly rely on the sorts of fuzzy stare decisis factors found in Casey — certainly, the popular reliance on paper currency would be significant. But more likely, the issue would never arise: Only a litigious kook would ever bring the case to court, the lower courts would dismiss it without fanfare, and the Supreme Court would exercise its discretion in the certiorari process to avoid bothering with an essentially uncontested question.
By contrast, when the Supreme Court has overruled a decision, it has often done so after dissatisfaction has percolated within the legal community, indicating that the point of law is not settled. For instance, 2009's Pearson v. Callahan overruled the qualified-immunity framework of 2001's Saucier v. Katz after criticism emerged among the lower courts. Janus overturned Abood after the latter's regime had been whittled away over time. In other cases, the Court seems to be reacting to criticism from mass culture, from regulated industries, or from the legal academy.
This looks an awful lot like Burkean prescription. The Court's institutional rules serve to separate out those precedents that have "mellowed into legality" and are now beyond the ken of legal contest. And they do so organically, taking cues from the people's actual grievances and arguments. Just as prescription defines the space for statecraft, the Court's institutional rules define the space for its judicial craft.
BEYOND STARE DECISIS
The mistake made by Chief Justice Roberts, and echoed throughout the legal academy, is to see Burkean jurisprudence as a kind of humble and dutiful application of a strict version of stare decisis. Yet Burke understood judicial precedents not as lawmaking events, but as evidence of the law. In contrast to the modern approach — with its presumption that, absent some extraordinary defect, a court's precedents are binding — Burke believed a precedent should be followed only if it can prove itself to be good evidence of the law. Burke is therefore even less friendly to precedent as such than is Justice Thomas.
Yet prescription, which Burke calls a "great fundamental part of natural law," does incorporate precedent. Prescription is a gradual, humble, and empirical model of political change that asks the statesman to build from existing materials — the "subsisting roots" of the nation's laws. The judicial craft largely involves working with such materials — from enacted legal texts to longstanding canons of interpretation — so it is not a stretch to imagine a prescriptive model of doctrinal change. The key question that remains for Burkean jurisprudence is how to identify which existing materials — in this case, judicial precedents — have been so widely accepted that the act of overturning them, no matter how well reasoned, would constitute a fundamental break from the legal mores of the community.
Our constitutional order already has several mechanisms for separating out such settled precedents from the ones subject to revision: The Supreme Court's discretionary docket, the bar on advisory opinions, and norms of party presentation combine to set in motion a delicate dance in which the public's grievances must align with the justices' priorities in order for a precedent to be reconsidered. This makes reconsideration all but unfathomable for many precedents.
Burkean jurisprudence therefore suggests different considerations at different stages of the Supreme Court's deliberation. When the question of overruling is squarely presented to the Court, Burke offers the justices no justification for upholding an erroneous precedent. But at the earlier stage, when considering whether to grant certiorari, a Burkean judge may properly consider a whole host of prudential factors, including whether the question is settled, for all intents and purposes, or whether the Court's voting majority is likely to further distort the doctrine. Put another way, the Burkean jurist synthesizes a resolute view of the judicial duty to enforce written law with statesmanlike prudence by giving each its proper stage.
As on so many questions, Edmund Burke has much to teach us. Unfortunately, too many prominent commentators have flattened his thought, casting him as a kind of utilitarian proponent of stare decisis. Burke's actual views on the judiciary are much richer and more liable to surprise than this understanding suggests. For the Supreme Court's new majority, he might supply just the theory they've been searching for.