Matthew Hale And Witch Hunts

A definition of a witch hunt is “a search for evidence of witchcraft.” Ironically, one of the best examples right now was given by a Twitter thread stoking Internet rage about the citation of a certain British jurist, Matthew Hale, in the draft opinion in Dobbs v. Mississippi by Justice Samuel Alito. Articles appeared in Vanity Fair, Jezebel, Pro Publica, Talking Points Memo, and more.

Here’s Jezebel:

It’s quite fitting that Alito would cite this guy’s opinion on abortion in deciding to revoke the right from the American people, nearly a half century after Roe legalized the health procedure in 1973.

The problem is that none of these articles—some by historians, some by journalists, some by lawyers—realize how comically absurd this attack is because Roe v. Wade itself cites Matthew Hale. Roe v. Wade 410 U.S. 113, 132 fn. 21 (1973). Not a single one of these articles bothered with a 5-second Google search. So we’re off to hunt witches!

In fact, the discussion of Hale’s work is in the same historical digression in Roe that Justice Alito was responding to in the draft of Dobbs. Whatever else Hale may have believed that we now find repugnant, the reason his works appear in Dobbs is because Roe itself went into an even more in-depth historical analysis. Justice Blackmun goes back to the Greeks, including Pythagoras, Aristotle, and Plato. None of these men had 21st-century views on gender.

The witch hunt this time was for some misogynistic trend in the law exposed by Hale and Alito. To the extent that these trends exist, they are out in the open. There was no need to wait for this opinion. A Westlaw search for Matthew Hale will find more results than these two. The reason is there is often cause to research English common law, especially in the pre-revolutionary period, to understand American law. There is much more reason to discuss Hale than there is to cite Plato.

This witch hunt, in addition to being based on a silly, embarrassing omission, has an even more malign implication: that legal authority is based on the individual character of the judge writing the opinion. That’s nonsense of course. It would destroy what is left of stare decisis by allowing present judges to disregard any legal authority whose source’s biography was not praiseworthy.

Supporters of abortion rights, including those of us who accept the halakha on this issue, are rightfully concerned about what the future holds, but silly witch hunts based on flawed scholarship will not help anyone. It will just make us feel silly later.