At Volokh Conspiracy, Josh Blackman: How Would You Know If a Justice Issues A Wise, Solomonic Ruling? From the introduction:
The Free Press published an extended excerpt from Justice Barrett's new book [ed.: Listening to the Law – Reflections on the Court and Constitution (Free Press, Spet. 9, 2025)]. 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 millennia. 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….
But from later on:
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.
Posted at 6:02 AM