By Don Terry & Tony Bruce | Monday, June 30, 2025 | 4 min read
The marble halls of the U.S. Supreme Court have long symbolized the impartiality and steadiness of American justice. But recent rulings from the Court, particularly those shaped by its conservative majority, suggest a troubling shift—one that edges judicial reasoning toward a past many assumed had been discarded. From the invocation of centuries-old British legal traditions to citations of deeply controversial figures like Sir Matthew Hale, the Court’s trajectory is raising red flags for scholars, legal experts, and citizens alike.
This emerging judicial pattern is not rooted in innovation but in reanimation—resurrecting legal precedents and principles that once enabled tyranny, misogyny, and systemic oppression. In doing so, the Court isn’t just interpreting the law; it’s shaping the very moral boundaries of American democracy.
One of the most glaring examples of this backward gaze is found in the 1948 case Ludecke v. Watkins, where the Court invoked the British “Crown prerogative” to justify detaining non-citizens during wartime without trial. Legal scholar Karl Loewenstein later condemned this line of reasoning as “constitutional formalism enabling tyranny.” It set the stage for accepting unchecked executive power under the guise of legality.
Fast forward to Trump v. United States (2024), in which the Court granted the former president “absolute immunity” for official acts. The majority opinion leaned heavily on 17th-century English Crown immunity principles—a nod to monarchical privilege that flies in the face of the Constitution’s separation of powers. It directly undermines Justice Robert Jackson’s Youngstown framework, a system devised to prevent any American president from acquiring powers akin to those that hollowed out Weimar Germany’s democracy in the 1930s.
But perhaps most alarming is the Court’s recent reliance on the writings of Sir Matthew Hale, a 17th-century English jurist infamous for sentencing women to death for witchcraft. In the 2022 draft majority opinion for Dobbs v. Jackson Women’s Health Organization—the case that overturned Roe v. Wade—Justice Samuel Alito cited Hale’s writings as authoritative in discussing historical attitudes toward abortion.
Hale wasn’t merely a product of his time; even by contemporary standards, his views were extreme. He believed in the literal existence of witches and used his courtroom to carry out executions based on those beliefs. He also wrote that a husband could not be prosecuted for raping his wife—an opinion that codified marital rape as legal for centuries.
To cite Hale in a ruling with profound implications for modern women’s rights isn’t an academic flourish. It’s a deliberate choice. And it sends a chilling message about whose authority matters in determining constitutional freedoms.
These rulings reflect a broader erosion of legal guardrails. Like authoritarian regimes before them, the tools used to consolidate power are often cloaked in legality. Whether through procedural gymnastics or selective historical citation, the effect is the same: to blur the lines between interpretation and ideology.
Much like how Nazi Germany legally dismantled democratic norms through the Enabling Act, today’s rulings seem to operate under a veneer of legal continuity while hollowing out the spirit of constitutional governance. In both cases, truth becomes elastic, loyalty becomes currency, and power becomes performative.
The judiciary has always been a battleground for ideological struggle, but what we’re seeing now is more than partisanship—it’s a recalibration of the rule of law itself. Legal principles once considered foundational, like checks and balances or the independence of the judiciary, are being challenged not just rhetorically but through precedent-setting decisions that will echo for decades.
When the Supreme Court legitimizes outdated doctrines like Crown prerogative or draws on thinkers like Hale, it doesn’t just reshape the law. It reshapes society’s understanding of justice, liberty, and who gets to be protected under the law.
This is not merely a legal crisis—it’s a historical one. Courts are not immune to the tides of authoritarianism. They can, and have, served as enablers. The United States is not Nazi Germany, but history shows us that democracies don’t implode all at once. They erode through slow, deliberate shifts in precedent, language, and power.
As Americans grapple with these rulings, they must also reckon with the uncomfortable truth that justice can be weaponized. The Supreme Court’s path need not mirror the past, but unless its decisions are held to the light of scrutiny, that mirror may reflect more than we dare admit.
The precedent is clear. The question now is whether we have the courage to reject it.
Copyright 2025 FN, NewsRoom.
