The Volokh Conspiracy

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Who The Hale Cares What They Think?

Justice Barrett cites Sir Matthew Hale, as did Justice Alito in Dobbs draft.


Over the past month, critics of the Dobbs draft have thrown every conceivable attack at Justice Alito's opinion. Perhaps the most unexpected attacks were directed at the ancient writers that Alito cites. For example, there was an attempt to cancel Henry de Bracton, a thirteenth century English jurist. Others excoriated Alito for citing Matthew Hale, a seventeenth-century English jurist. Of course, Hale had been recently cited by Justices Kagan and Breyer. But whatever, Dobbs.

Has this inane criticism of Sir Matthew Hale permeated the unscalable fences on First Street? Justice Barrett's opinion in Denezpi suggests the answer is no. She favorably cites Hale to interpret the word "offense."

And Sir Matthew Hale could say of a man who breaks into a house and steals something: "[I]f indicted for the burglary and acquitted, yet he may be indicted of the larciny, for they are several offenses, tho committed at the same time." 2 History of the Pleas of the Crown 245–246 (1736). 

I did a quick search of the briefs, and none of the briefs in Denezpi cited this passage, or "History of the Pleas of the Crown" for that matter. If my research is correct, Justice Barrett did this research on her own.

I hate reading between the lines, but this citation–which was not stripped out of the majority opinion–suggests ACB said IDGAF to critics. Good for her. Who the Hale cares what they think?