The Volokh Conspiracy
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How Would You Know If a Justice Issues A Wise, Solomonic Ruling?
Here's looking at you, Chief.
The Free Press published an extended excerpt from Justice Barrett's new book. Justice Barrett develops at some length the theme of King Solomon. She reminds readers that Solomon never actually cut the baby in half. Rather, his wisdom was putting forward a test that would identify the real mother, without having to murder the child. And that test has endured for milennia. Barrett writes:
"Doing justice" doesn't call to mind a judge parsing statutory language; it sounds more like King Solomon, who famously mediated the dispute between two women claiming the same baby. In a brilliant (if high risk) strategy, Solomon proposed to divide the baby in half, betting that the true mother would relinquish the child rather than see him die.
Fortunately, Solomon was right. And because he achieved the just result, the Old Testament memorializes this story to illustrate Solomon's wisdom. In fact, Solomon is also honored on a frieze in the courtroom of the Supreme Court, where he appears as one of the "great lawgivers of history."
Barrett goes on to say that King Solomon is not the right model for a federal judge. Federal judges do not decide cases based on internal wisdom, but they decide cases based on external law.
It's notable to me that Solomon's wisdom came from within. He didn't resolve the case by turning to sources like laws passed by a legislature or precedents set by other judges. Nor was there any limit to the kind of solution he could impose—after all, his proposed remedy was to literally split the baby. Solomon's authority was bounded by nothing more than his own judgment. But that wasn't cause for concern, because the man and wise rule were one and the same.
If you'd asked me before law school, I may well have identified Solomon as the ideal judge. And in a certain respect, he is—it's appealing to entrust a dispute to someone who resolves it with reference solely to principles of justice. Solomon, however, stands out for a reason: His wisdom was flawless. Those who framed and ratified the Constitution didn't expect the same to be true of federal judges.
Barrett is exactly right here. Indeed, I have difficulty with the fact that the slogan chiseled into stone atop the Supreme Court is "Equal Justice Under Law." That phrase has no home in any legal authority. It was proposed by the architects of the Supreme Court. I suppose it is technically correct that the justice must be done under some type of written law, but that phrase conveys all the wrong message to litigants. The job of a judge is not to dispense justice, as she sees it.
Justice Barrett's point brings to mind a rather infamous statement made repeatedly by then-Judge Sonia Sotomayor. She would often say that a "wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life." King Solomon could perhaps draw on his wisdom, but federal judges should not. Then again, Justice Ketanji Brown Jackson recently described "equal justice under law" as "this Court's guiding light nearly a century after those words were first engraved there." Not quite.
Barrett continues to develop the Solomon theme with regard to the death penalty. She restates her longstanding moral opposition to capital punishment. Yet, she still voted to affirm the death sentence for the Boston Marathon bomber. Barrett peels back the curtain a bit and explains how she could have issued a Solomonic vote, in which her legal judgment was (quietly) informed by her moral beliefs. Barrett writes that no one would have ever known if she had done this--not even her colleagues. (Does Barrett think that some judges do this?) But Barrett saw such an action as a dereliction of her duty, and violation of her oath. Read these passages carefully:
Soon after my appointment, the Court considered a death sentence imposed on Dzhokhar Tsarnaev, one of the Boston Marathon bombers. The court of appeals had vacated Tsarnaev's sentence, and the United States argued that it had done so in error. I thought that the United States was right, and I joined the Court's holding that Tsarnaev's death sentence was valid.
That was not the only course open to me. Given my view of capital punishment, I could have looked for ways to slant the law in favor of defendants facing the death penalty. There were, after all, plausible arguments going Tsarnaev's way—the court of appeals agreed with him, as did three of my colleagues in dissent. Had I voted in favor of Tsarnaev, no one would have known that I did it because I objected to the death penalty rather than because I concluded that Tsarnaev had the better of the argument.
But that would have been a dereliction of duty. The people who adopted the Constitution didn't share my view of the death penalty, and neither do all my fellow citizens today. Quite the contrary: 27 states authorize capital punishment, as does the federal government.
If I distort the law to make it difficult for them to impose the death penalty, I interfere with the voters' right to self-government. My office doesn't entitle me to align the legal system with my moral or policy views. Swearing to apply the law faithfully means deciding each case based on my best judgment about what the law is, not what it should be.
I found the vote distasteful to cast, and I wish our system worked differently. Yet I had no doubt that voting to affirm the sentence was the right thing for me to do. Had I concluded that casting such a vote was immoral or that I couldn't fairly judge the case, the right thing to do would have been to recuse—not to cheat.
Once again, Barrett's prose brings to mind another one of her colleagues. Who on the Supreme Court is known to "distort" the law to reach "Solomonic" rulings based on a broader sense of "Justice"? Hmmm…..
Let me quote a law professor from 2017, writing about NFIB v. Sebelius:
In NFIB v. Sebelius, the inspiration for Barnett's book, Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress's commerce power.
That law professor, of course, was Amy Coney Barrett, writing a review of Randy Barnett's book. On this front, I agree with Professor Barrett. Here is how I described Chief Justice Roberts's tenure of "faux-Solomonic" rulings:
Roberts's defining rulings are not models of judicial excellence. Instead, they dole benefits to the left and the right in a transparent effort to split the baby. In NFIB v. Sebelius (2012), Robert changed his vote to uphold the Affordable Care Act. But to reach that result, Roberts rewrote a penalty into a tax, and rewrote the mandatory Medicaid expansion into an optional program. And he did so during an apparently successful pressure campaign from legal elites. Few people believe that Roberts offered the best reading on the law based on neutral principles. Rather, the Chief twisted and turned the law to avoid striking down President Obama's signature law, while still preserving some conservative separation of powers principles. More than a decade later, we are stuck not with the healthcare law that Congress adopted, but with the compromise that Chief Justice Roberts brokered.
During the first Trump Administration, Roberts issued a troika of split rulings. First, in Department of Commerce v. New York (2019), Robert ruled that the executive branch had the broad power to inquire about citizenship status on the census. But, Roberts parried, the Trump Administration's reasons for adding the question was "pretextual," and further proceedings were needed to consider the rationale. Professor Noah Feldman of Harvard observed, "Roberts's approach . . . is to try to craft a middle ground that will make the Supreme Court seem less purely political than it would if he opted to join the conservatives."
Second, in Department of Homeland Security v. Regents of the University of California (2020), Roberts ruled that the executive branch could in theory terminate the DACA immigration policy. But in this case, the Trump Administration failed to adequately consider how that termination would affect the Dreamers. Again, a victory for the presidency, but a loss for Trump. Joan Biskupic of CNN lauded Roberts's decision as "pragmatic and political."
The third case, June Medical LLC v. Russo (2020), involved abortion. Four years earlier, Roberts dissented in a 5-4 decision that halted abortion restrictions from Texas. But in June Medical, Roberts could have been the fifth vote to pare back Roe v. Wade. Instead, Roberts declared unconstitutional abortion restrictions from Louisiana that were nearly indistinguishable from the Texas abortion restrictions that he had favored. An anonymous conservative writer told Vox, "The only way to make sense of the Supreme Court's abortion jurisprudence is to assume it is guided by one principle: 'Pro-lifers must lose.'"
Roberts's triangulations continued during the Biden Administration. In Dobbs v. Jackson Women's Health Organization (2022), the Supreme Court at long last overruled Roe v. Wade. Chief Justice Roberts did not join the majority opinion. Nor did he join the dissenters, and vote to reaffirm the Court's abortion precedents. Rather, the Chief Justice split the difference again. Roberts ruled that Mississippi's fifteen week abortion ban was permissible because pregnant women still had a "reasonable" opportunity to have an abortion. According to press reports, Roberts was attempting to persuade Justices Kavanaugh or Barrett to join his opinion, thus fragmenting the majority opinion. Thankfully, his efforts failed. Where did this manufactured rule come from? Who knows. Justice Alito explained that Roberts lacked "any principled basis," and "would do exactly what [he] criticizes Roe for doing: pulling 'out of thin air' a test that "[n]o party or amicus asked the Court to adopt." Here, Roberts wove a new standard out of whole cloth, but this Emperor had no clothes. . . .
Roberts's decisions are often described as "Solomonic," but this label disregards the wisdom of the biblical monarch. King Solomon never actually cut the baby in half, but developed a test to resolve the dispute: the real mother could not bear to see her child harmed. This timeless principle is still taught today. But Roberts's opinions are tickets good for one ride, if that. They do not extend beyond the narrow confines of the decision. Roberts cannot lay claim to King Solomon's throne.
I found myself nodding while reading Barrett's excerpt. Indeed, I reached very much the same conclusion about Solomon and judging. Yet, I take the extra step and apply that scrutiny to the current members of the Court. And Chief Justice Roberts fits the bill.
Now I appreciate that Justice Barrett writes that she does not issue Solomonic rulings that split the baby. Yet, many of her decisions sure do feel that way, especially when she is the fifth vote. Most recently, she split the difference in NIH v. APHA--counts about cutting funding belong in the Court of Federal Claims, but APA challenges can remain in District Court. In Department of State v. AIDS Vaccine Advocacy Coalition, Barrett declined to enjoin the lower court, yet still hinted that the lower court should reduce the amount of money that has to be spent. In Trump v. United States, Barrett generally found presidential immunity, but would have let certain evidentiary issues be settled at trial. In Trump v. Anderson, well, I'm still not entirely sure what her position was, but it was somewhere in the middle. In South Bay United Pentecostal Church v. Newsom, Barrett's first-ever opinion, she held that California could not shut down churches, but they could ban singing. I could go on. There does seem to be a lot of baby-splitting going on--but nowhere near as much as the Chief.
I think this post illustrates my difficulty with Justice Barrett, and why people don't quite get my criticism of her. I usually agree with Justice Barrett on first principles. I then struggle with how she follows through to apply those principles. To use a gymnastic analogy, Barrett scores high on the difficulty score, but is weaker on her execution score. She sets out up do something extremely important, and only sometimes reaches that level. CASA, PennEast, and a couple other cases are healthy exceptions to the rule. She needs to consistently stick the landing.
Moreover, as I've written before, I don't know if Justice Barrett always sees the consequences of her decisions, and how it affects other facets of what she has done. This excerpt should make any informed reader think of Chief Justice Roberts or Justice Sotomayor. I am confident this was not intentional, but it is there. By describing what she does not do as bad, she is judging those who do the opposite of Barrett.
I will read Justice Barrett's book with an open mind. The short excerpts I've seen so far are well-written, cogent, and bring some insights into her decision-making process. Query how much of this she could have described in a book proposal from 2021 when she struck the book deal.
One final note. Isn't Marbury the ultimate Solomonic ruling? Chief Justice Marshall ruled that Madison violated the law, but declined to grant the writ. Even if Marbury can be defended as a plausible reading of Article III and the Judiciary Act of 1789, I think most scholars see the decision as a strategic jujitsu from the wise Chief Justice. This is not behavior that should be emulated. If I ever become Chief Justice for a day (Lord help us all) I would sandblast the phrase "Equal Justice Under Law" off the west pediment and send the larger-than-life John Marshall statute down to Richmond. Each Justice should have a bust or statute or portrait of (roughly) the same size. It is wrong to elevate one member above all others.
