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When writing legal opinions of great importance, it’s not uncommon for Supreme Court justices to reference others’ work and scholarship. Jurists will often cite previous justices, prominent historical figures, and legal history to bolster their conclusions.
There’s nothing wrong with this. On the contrary, these citations are often helpful in shedding light, not just on what the justices believe, but also how they arrived at their decisions.
With this in mind, Justice Samuel Alito’s leaked draft ruling in Dobbs v. Jackson Women’s Health Organization has received careful scrutiny, not just because of the sweeping impact it would have on American health care, law, politics, and civil rights, but also because of the sources the Republican-appointed justice turned while building the foundation for his reasoning.
For example, Alito made multiple references in his draft to Sir Matthew Hale, a 17th century British jurist whom the conservative justice described as a “great” and “eminent” authority on common law.
And who, exactly, is Sir Matthew Hale? Jill Elaine Hasday, a law professor at the University of Minnesota, explained in a Washington Post op-ed that the influence of Alito’s source “has not been a ‘great’ development if you believe women have equal humanity with men.”
Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy.... Hale was a man who believed women could be witches, assumed women were liars and thought husbands owned their wives’ bodies. It is long past time to leave that misogyny behind.
What’s more, Alito’s draft made six references to Henry de Bracton, a 13th century British jurist with an extensive history of his own. Dana Milbank noted in his new column that much of de Bracton’s work appears quite ridiculous by contemporary standards.
Bracton ... outlines procedures for “viewing a woman to discover whether or not she is pregnant” in which “discreet women” should in certain instances “carefully examine her by feeling her breasts and abdomen and in every way” to make sure she wasn’t faking. If the exam was inconclusive, the woman could be locked in a “castle at her own cost” where the exam would be repeated daily. Once the woman was found to be pregnant, “the time of conception, how, when, and where, and at what time she believes she is to give birth” was to be made “known to our justices at Westminster.”
The 13th century jurist’s work also includes head-shaking ideas related to burning people alive, the greatness of monarchs, slavery, and his certainty that children “born of prohibited intercourse ... are fit for nothing.”
When we talk about conservative justices’ eagerness to turn back the clock, it’s important to appreciate just how far back they’re prepared to go.