EDMUND BURKEIn his New York Times column today, David Brooks writes that Chief Justice John G. Roberts Jr.’s decision upholding the Affordable Care Act “represents a moment of, if I can say it, Burkean minimalism and self-control.” Brooks may be right about categorizing Roberts’ decision as Burkean, but I have a quibble with how Brooks put it.
The phrase “Burkean minimalism” has become popular, especially so in legal circles since Cass Sunstein wrote an article with that title in the November 2006 issue of the Michigan Law Review. It is not quite right, however, to consider Burke a minimalist.
Burke was not only a reformer – at times he advocated radical reform. Burke was, however, ever mindful that (1) our institutions, customs, and traditions have come to be as they are for good reasons that are not always obvious to us; (2) change, especially dramatic change, always has potential for unintended consequences; and (3) our ability to perceive those consequences through the use of logic and theories is limited. It is more accurate to say that Burke believed that reform should be undertaken with great care and a healthy respect for tradition and precedent than it is to call him a minimalist. Burke may have believed that, all other things being equal, modest or incremental reforms are preferable to sweeping or rapid reform; but Burke recognized that sometimes the status quo is unacceptable and radical reform is necessary, though even then he worked mightily – leaning heavily on the study of history – to proceed as carefully as possible and attempt to anticipate and correct for undesirable consequences.
Burke was a reformer with humility. Sunstein was right when he said in the text of his article that Burkean jurisprudence would “emphasize the limitations of human and judicial knowledge.”
Charles Krauthammer also devoted his column, in the Washington Post, to Chief Justice Roberts’ jurisprudential approach. Although he never mentions Burke, Krauthammer identifies something that is genuinely Burkean. “Institutionally, [Roberts] is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation, and stature,” writes Krauthammer. If Krauthammer is correct in surmising that Roberts’ decision was driven by those concerns, then Roberts did indeed act in a decidedly Burkean way.
Burke understood that our institutions – and widespread respect for them – are crucially important. The Court, however, diminished itself by determining the outcome of a presidential election along partisan lines in Bush v. Gore. I doubt the justices understood just how badly that decision damaged the Court’s stature.
In many eyes – including mine – the Court further damaged its reputation in other decisions such as its 2008 and 2010 Second Amendment cases. Prior to 2008, none of the then-sitting justices had ever considered the meaning of the Second Amendment. In that year, nine justices rolled up their sleeves, examined the history and text of the Amendment for the first time, and divided 5-4 along purely ideological lines about what the Second Amendment means. Two years later, the Court’s nine justices considered another issue they themselves had never confronted before: When does a right guaranteed by the Bill of Rights apply only against the federal government and when is it incorporated by the Fourteenth Amendment and apply against the states as well? Although this too involved the Second Amendment, the issue of “incorporation” is distinctly different than the meaning of the Amendment, and there is no sound jurisprudential reason why there should be a correlation between how justices come out in the two cases. Nevertheless – and I am sorry to say to no one’s surprise – the Court again divided 5-4 along the same ideological lines. It had become difficult to see the Court as anything more than another political branch of government.
The deterioration of the Court’s authority is a matter of great concern to any Burkean. Whatever else it may have done, Roberts’ decision gives at least a temporary boost to the Court’s stature.
As for the rationales employed by the chief justice, well, that may be a different matter. In an op-ed in today’s New York Times, Georgetown University law professor Neal K. Katyal argues that the Court’s decision may radically change established precedents and practices under which the federal government encourages states to engage in particular activities by funding those activities. And in another op-ed in today’s New York Times, Richard A. Epstein, a law professor at New York University, argues that Roberts’ decision may fundamentally change how we have interpreted Congress’ power to collect taxes to provide for the “general Welfare of the United States.” I pass no judgment today on either Katyal’s or Epstein’s argument. But whether, in future years, we will look back on the Roberts’ opinion and praise it as Burkean is very much an open question.