Amy Coney Barrett Somehow Managed to Get the Law and the Bible Wrong in Her New Book

"Supreme Court Justice Amy Coney Barrett's new book, Listening to the Law, excerpted in the Free Press on Wednesday, features a discussion of King Solomon. Barrett believes that the biblical king's ruling about two mothers fighting for custody of a child can explain the difference between "doing justice" and applying the law, with the latter being the proper role of an American judge, according to Barrett. Remarkably, the justice manages to get both the Bible and the legal system wrong."

"To Barrett, "Solomon's wisdom came from within," rather than from "sources like laws passed by a legislature or precedents set by other judges." 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."

"That is a serious misinterpretation of the 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. 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."

A prominent claim portrays Solomon as relying on personal judgment rather than legal sources, presenting his decision as exemplifying 'doing justice' instead of applying law. That portrayal misreads the biblical account. Solomon's ruling operated within a background legal principle that the true mother must receive custody; the proposed division of the child functioned to reveal facts, not to express moral judgment. Solomon adhered to existing legal rules, performing a factual inquiry to determine custody rather than invoking unconstrained personal authority. The legal principle resembles biblical common law, showing a clear rule beyond question in that context.

Read at Slate Magazine