In a scathing legal analysis published Wednesday by Slate, legal experts and journalists tore into the conservative-controlled Supreme Court for “cherry-picking historical evidence” in making its decisions, including its past reliance on an actual “witch burner” and pro-rape judge.
“You’ve got the conservative majority doing history and tradition – what they call ‘originalism’ – in a totally illegitimate way: butchering the historical record, cherry-picking historical evidence that supports their position, starting with the outcome they want and just working backward,” wrote Mark Stern, who covers courts and law for Slate.
“No credible historian thinks that what the court is doing here is how anyone should practice history.”
Specifically, the authors of the analysis point to several instances of conservative justices citing precedents set in the 1700s, and often by judges of questionable morality. One such example includes Justice Samuel Alito in his draft opinion on Dobbs v. Jackson, the case that ultimately overturned abortion protections established under Roe v. Wade.
“We live in a time when executive power is what it is, the administrative and regulatory state is what it is, and we are freezing only a chunk of time going back to, what, Roman law?” wrote Dahlia Lithwick, lawyer and senior editor at Slate.
“Where does this stop? Some of this was revealed in Dobbs with reference to Sir Matthew Hale, infamous witch burner. The silliness of the originalist project is in full bloom right now. Not only the cherry-picking-ness of it, but the utter silliness of trying to navigate our modern world in these terms.”
A 17th-century jurist, Hale was a proponent of martial rape, and wrote of his fears that young women had learned “to be bold” and “talk loud,” as reported by ProPublica. Hale also supported the execution of women believed to be witches.
The question posed by the authors of the analysis was largely how the court’s more liberal justices, which include Justices Sonia Sotomayor, Elena Kagen and Ketanji Brown Jackson, should approach their conservative colleagues' reliance on such figures.
“I don’t want to lose sight of the fact that originalism is impractical and just a fundamentally unworkable way of doing law,” Stern wrote.
“And I think that when the liberal justices are refuting and rebutting flawed historical claims, they need to keep in mind (and generally do) that their argument isn’t that originalism is the one true way. Their argument is more like ‘these guys say they’re doing originalism, but they’re doing it wrong.’”
