Supreme Court Justice Amy Coney Barrett's book manages not only to misinterpret the law, but also the Bible, wrote Steven Lubet in a scathing analysis for Slate published Friday.
Barrett's new book has come under fire for other controversies, including a passage in which she complains that overturning Roe v. Wade spoiled her vacation.
In one passage of the book, Barrett contrasted the role of American judges with that of the Biblical King Solomon, who in one famous story was presented with two women both claiming to be the mother of one infant. Solomon ordered the baby to be divided in half, knowing that the false mother would accept this and the true mother would relinquish custody rather than see it killed.
"To Barrett, 'Solomon’s wisdom came from within,' rather than from 'sources like laws passed by a legislature or precedents set by other judges,'" wrote Lubet. "His authority was 'bounded by nothing more than his own judgment.' In contrast, Barrett says, American judges, including Supreme Court justices, must apply the rules found 'in the Constitution and legislation,' without consideration of their personal values, no matter how Solomonic they may seem."
But this, Lubet wrote, is a "serious misinterpretation" of the Bible story.
"Solomon was neither making a moral judgment nor applying his own understanding of right and wrong. Instead, he was reaching a purely factual determination while carefully adhering to the background law," wrote Lubet. "The pure legal principle in the dispute, from which Solomon never strayed, was that the true mother must be awarded custody of the child. We might call that biblical common law, a rule beyond question. Thus, Solomon never considered the best interest of the child or the women’s respective nurturing abilities ... Solomon’s sole objective was to decide which woman was the actual mother and which was the mother of another boy, one who had passed away — his goal was not to invoke his personal concept of justice."
"Solomon then figured out how to expose the liar," wrote Lubet. "His threat to divide the baby was a credibility test, the equivalent of high-stakes cross-examination. It may well have been a bluff. The true mother’s immediate outcry was demeanor evidence, which allowed Solomon to render an accurate verdict, conforming to the underlying law."
That Barrett misunderstands this story is incredibly revealing, Lubet argued, because what she misinterpreted as Solomon rendering a personal belief was actually just him engaging in fact-finding — a standard and important part of any judge's ability to apply the law, including in the American legal system.
"Apart from three years as an associate at a law firm, she has spent her whole career in academia or appellate courts. It is entirely possible that she has never examined a witness at trial," wrote Lubet. "Accurate fact finding, however, is the essential first step in any judicial system, a process the justice mentions not at all." By contrast, "Justices Sonia Sotomayor, a former prosecutor, and Ketanji Brown Jackson, a former public defender, would not have made the same mistake. Their years of experience in the trial courts surely taught them that there is more to justice than a review of the appellate record."
"Like her mentor, the late Justice Antonin Scalia, Barrett claims to be a strict textualist," Lubet concluded. "It is therefore unsettling that even the Bible is not sacrosanct when she wants to make a point."
