Northwestern University Law Professor Emeritus Steven Lubet tells Slate that Supreme Court Justice Amy Coney Barrett managed to misinterpret both the Bible and U.S. law in one book.
Lubet takes issue with Barrett’s interpretation of King Solomon’s handling of an ancient custody battle in her new book, “Listening to the Law.” In that Old Testament scenario, Solomon mediated the dispute between two women purporting to be a child’s real mother by proposing “to divide the baby in half, betting that the true mother would relinquish the child rather than see him die.”
Barrett claims in her book that “Solomon’s wisdom came from within,” rather than from “sources like laws passed by a legislature or precedents set by other judges.” His authority, therefore, was “bounded by nothing more than his own judgment.”
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In contrast, Barrett says, American judges must apply the rules found “in the Constitution and legislation,” without consideration of their personal values, no matter how Solomonic they may seem.
“That is a serious misinterpretation of the story,” said Lubet, because “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.”
“The pure legal principle in the dispute, from which Solomon never strayed, was that the true mother must be awarded custody of the child,” Lubet argues. “… Thus, Solomon never considered the best interest of the child or the women’s respective nurturing abilities. He did not base his ruling on ‘innate wisdom or divine inspiration.’ He was figuring out how to expose a liar, and his threat to divide the baby was a credibility test.
It was “the equivalent of high-stakes cross-examination,” said Lubet. “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.”
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But Barrett insisted in her book that: “If a judge functions like Solomon everything turns on the set of beliefs that she brings to the bench.”
This is descriptively incorrect, said Lubet: “Solomon’s beliefs played no part in his judgment, other than his conviction that he was called upon to award custody to the child’s own mother.”
“It is disappointing, though not surprising, that Barrett fails to recognize Solomon’s role as the trier of fact,” Lubet said. “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.”
Read Lubet's full Slate essay at this link.
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