The Volokh Conspiracy

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Oh Hale Yes!

Justices Sotomayor and Kagan cite Sir Matthew Hale.


Last year, there was a bit of a stir when Justice Alito cited Sir Matthew Hale in the Dobbs draft, as ultimately in the published opinion. The well-known seventeenth century English judge sentenced two women to death for witchcraft. Therefore, everything the jurist wrote should be cancelled.

For those who still care about these things, Justice Sotomayor's dissent in Pugin v. Garland, which was joined by Justices Gorsuch and Kagan, also cites Hale. She cites Blackstone too. I'm sure he said some misogynistic things.

Although the Court quotes Blackstone's statement that " 'dis-suad[ing] a witness from giving evidence' " was an " 'impedimen[t] of jus-tice' " in support of its position, ante, at 8, Blackstone actually supports this dissent. The Court ignores that in historical usage "giving evidence" meant "testifying" at a proceeding. See, e.g., 3 W. Blackstone, Commentaries on the Laws of England 305 (1768) ("[E]very defence, which cannot be thus specially pleaded, may be given in evidence, upon the general issue at the trial"); 2 M. Hale, History of the Pleas of the Crown 280 (1736) ("If a reward be promised to a person for giving his evidence before he gives it, this, if proved, disables his testimony"). The majority also ignores that the Blackstone passage is discussing "[c]ontempts against the king's . . . courts of justice." 4 Blackstone, Commentaries, at 124 (1769). This context confirms Blackstone is referring to impeding a wit-ness from testifying at a proceeding, because otherwise it would not be a contempt against the king's courts.

Kagan had cited Hale in the past as well. Is there a problem? Hale no.

Last year ProPublica—yes that ProPublica—assailed Alito for quoting "infamous witch trial judge with long-discredited ideas on rape." I'm waiting for that venerable new organization to discover any Justice who was appointed by Presidents Obama or Biden.