Justices Alito and Thomas' Legal Renaissance Fair
Do Justices Alito and Thomas have an unhealthy obsession with medieval history?
A quick disclaimer. After last week, I was hoping to be done talking about the Supreme Court decisions on gun control and abortion. I was planning to move on to discuss their decision about the EPA, and the Eighth Circuit's decision on anti-BDS laws. But I find it necessary to put both of those discussions on hold for another week because it turns out I have more to say. So for those who have stuck with me for the past two installments of this rant, I apologize that we are on non-consecutive week three. For those of you who are new, you can find the two previous posts here and here.
Reading the Dobbs decision, one of the things that struck me as particularly odd, and to be clear, there were so many things, was how far back in history Justice Alito reached to make his case against Constitutional protection for abortion. Alito cites Henry de Bracton’s 13th-century treatise, and the writings of Sir Edward Cooke and Sir Matthew Hale in the 17th century as relevant authorities for the proposition that abortion should be a criminal act, or at the very least one that ought not be protected at a federal level. In the American context, Alito cites primarily to cases and legislation from the 17th to 19th centuries, with only a brief mention of the state of the law in 1950, 23 years before Roe v Wade was decided, and 62 years before Dobbs, for anyone keeping track. Discussions of history frequently occur in the study and analysis of law. They are essential for understanding how the law evolved to be where it is today. That being said, I’m not sure that taking medical advice from people who lived in an age when you died from a broken leg is really the strongest argument in favour of your opinion. And yet, a not-insignificant portion of Alito’s argument is grounded in material from the 1800s and earlier.
In Justice Thomas’ decision in New York State Rifle and Pistol Assn, a law that had been in effect since 1911, restricting the open carry of guns to those who could substantiate they were in unique danger, was deemed unconstitutional. Thomas purports to recognize that the issues relating to gun control in America today differ from the era of the Founding Fathers in 1791 and Reconstruction in 1868. I say ‘purports’ because he goes on to say, “[i]n the medieval period, almost everyone carried a knife or a dagger in his belt. While these knives were used by knights in warfare, civilians wore them for self-protection, among other things. Respondents point to no evidence suggesting the Statute applied to the smaller medieval weapons that strike us as most analogous to modern handguns” [citations omitted]. This argument is reminiscent of the moment in the classic film A Lion in Winter, when Katherine Hepburn, portraying Eleanor of Aquitaine, cries, “Of course, he has a knife. He always has a knife. We all have knives. It's 1183, and we're barbarians.” It’s one of those great moments where a classic film makes contact with the fourth wall without breaking it. It may, however, have broken through to Thomas. He appears to view the days of widespread knife-toting as something to aspire towards, as he spends over 30 pages of the decision discussing the prominence and regulation of weapons in the medieval and Tudor periods.
Justices Alito and Thomas seem to have an outsized love for niche areas of history. And I get it. Studying history is fantastic and historical fiction is among my favourite genres. But for as much as I love learning about history, I have a firm enough grasp on reality to know that we are much better off living in an era with vaccines, suffrage, and where I can travel the open road at night without fear of marauders. And while there is a lot that we can learn from history, we are not intended to treat it as a rule book for how we live our lives in the 21st century. Alito and Thomas feel differently.
It says a lot about both your perspective on society and the strength of your legal argument if you need to go so far back in time to find material that supports you. Not to mention the heavy reliance on historical laws and practices from a country with which the United States fought a revolution to sever its association.
And again, I get it. It's easy to feel nostalgic for an earlier time - probably because we either don't know or don't remember what it smelled like. For as much as I wish that we all still dressed like Mrs. Maisel, I will take not bleeding out in a bathtub from a home abortion performed with a coat hanger over a hat to match every outfit any day of the week.
The way historical references are used in these decisions implies that they are meant to be viewed as the right way to do things. Readers of the decisions are expected to come away with the perspective that what they were doing in the medieval period was correct, and that by overturning these laws, we are righting the ship of history. Alito and Thomas are using the law to engage in some sort of historical re-enactment whereby the beliefs, practices, and prejudices common in the 14th century are being resurrected and imposed on the American populace.
But handguns and daggers are not analogous. And luckily for all of us, the circumstances that motivated people to carry them for their protection no longer exist for most people. In the medieval period, it was believed that a woman's only purpose was to carry children, despite exceedingly high rates of maternal mortality. When we look at these historical moments, we should be grateful for how far we have come in making a safer and more equal world.
If Alito and Thomas want to live in the past this badly, they should consider a holiday at a pioneer village or attending a renaissance fair. But they should not be rolling back jurisprudence, so it aligns with what was familiar to King Henry VIII.
If you or a friend or loved one needs access to abortion services and can no longer do so in your state, click here.
Well said Sadie...told with wit and intelligence. These are increasingly disturbing times we find ourselves in.