In an essay for National Affairs, Jeremy Rozansky analyzes stare decisis, its justifications, and how it may influence the jurisprudence of the Roberts Supreme Court. He examines how justices in the Roberts Court have articulated their diverse views on when past decisions should be overturned. To Justice Thomas, “demonstrably erroneous” precedents that conflict with the text of the Constitution must always be overruled. To Justice Alito and others, however, factors such as the quality of a decision’s reasoning and subsequent reliance on it will determine whether it should be struck down. Rozansky explores how the nuances of Edmund Burke’s philosophy, which has often been misunderstood, can help conservatives to choose a side in this debate. Although Burke contends that erroneous precedents should not be followed, he also considers prescription to be vital in law. Prescription dictates that change should occur gradually. It should not entail abandoning precedents that have become fundamental to the “legal mores of the community.” When determining which precedents to adhere to and which to overrule, Burke stresses that there are many prudential factors for judges to consider. Rozansky implores conservatives to revisit Burke’s work on legal theory. He hopes that this will reveal a more intricate approach to stare decisis that has long been overlooked. Some excerpts from the piece: “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.” “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.” “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.” Read the full essay here