We’d like to think that Chief Justice Roberts will see through the game that the Democrats are playing in respect of Sir Matthew Hale. He was the counterpart to Chief Justice Roberts, back in 17th-century England. He’s being cited now by Justice Samuel Alito in his draft opinion overturning Roe v. Wade. So the left is trying to smear this sage who headed the king’s bench a century before America declared its independence.We can remember a time when it was the Democrats who were eager for the Supreme Court to reference foreign law. It was the right wing that used to object to scanning the globe for legal wisdom. On the supposed merits of relying on “judicial references to foreign law,” Justice Stephen Breyer has explained: “It is not the cosmopolitanism of some jurists that seeks this kind of engagement but the nature of the world itself that demands it.”Justice Ruth Bader Ginsburg asked “why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article from a professor?” That cut no ice with The Great Scalia, who reminded his globalist colleagues “We must never forget that it is a Constitution for the United States of America that we are expounding.” Or, more to the point: “Who cares? We have our laws, they have theirs.”Yet today it’s Justice Alito who is mentioning a British jurist and the left that is being all riled up. And all over a point on the history of abortion’s legality. Bess Levin writes in Vanity Fair that it’s “proof that Alito is pure evil and wants to take the U.S. back to a time when women’s bodies were property for men to control.” She calls Hale “an English jurist who defended marital rape and had women executed for ‘witchcraft.’” It’s not our intention to advocate on behalf of the legal positions Hale stands accused of espousing. Yet putting aside the logic of judging a man of the 17th century by the moral and ethical standards of our time, this current criticism of Hale rings hollow. The mistake is to confuse judges with lawmakers. It is the part of the latter to write the laws and of the former to interpret them. Hale’s was to adjudicate cases based on the laws of his day.Historians, moreover, say that Hale was renowned for his “judicial impartiality” and reasonability in an era riven by warring factions. As Stanford Law Review has noted, Hale was considered “the greatest lawyer of his day and the model 17th-century judge.” A scholar and systematizer of law on a par with, in other spheres, scientists like Bacon or Galileo, Hale nursed the ambition to reform and rationalize British law. The reason Justice Alito referenced Hale eight times has to do with his status as an authority of the common law on the level of William Blackstone, a contemporary of the Founders. Justice Alito notes he looked to the common law to see whether abortion was “deeply rooted in the Nation’s history and traditions.” Justice Alito saw “no common law case or authority” to suggest “a positive right to procure an abortion at any stage of pregnancy.”That wasn’t Hale’s fault — or Justice Alito’s. The press attacks on Hale are as cynical a maneuver as we’ve ever seen. Maligning Hale as an apologist for rape and a witch hunter is an effort to delegitimize Justice Alito’s draft opinion against Roe. What Hale can do for Chief Justice Roberts is remind him about the role of a judge. It wasn’t Hale who said the job was to call balls and strikes — but he would have had there been baseball in the 17th century.
