Another Justice signs a book deal shortly after being confirmed

I am skeptical about a Justice who writes a book before writing a significant majority opinion.

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Three of the last four Justices have secured lucrative book deals. And each struck the deal shortly after they joined the bench. Justice Sotomayor was confirmed in August 2009. Less than a year later in July 2010, she signed a book deal, and received a $1.2 million advance.

Justice Gorsuch was confirmed in April 2017. Shortly thereafter, he received a book deal, and received a $225,000 advance. The book was released in the fall of 2019. (I could not find the exact date the deal was signed).

Justice Kavanaugh (as far as I know) does not have a book deal in hand.

Today, Politico reports that Justice Barrett has signed a book deal, with an advance for $2 million–nearly double what Justice Sotomayor earned a decade ago.

Most books by Supreme Court Justices are not very good. I agree with Judge Posner's criticism of Justice Breyer's book, Active Liberty. Posner wrote, "a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all." People are not appointed to the Supreme Court because they are the best writers, or because they are the smartest attorneys, or even because they have the greatest insights. Rather, they are appointed because their political stars aligned. We read their opinions because they have the force of law. But (thankfully) their books lack the force of law. For the most part, people read these books because of the unfortunate cult of celebrity attending the Justices.

There are exceptions, of course. Justices Scalia's works are iconic. We will be reading his writings for decades to come. And memoirs of fascinating people–like Justices Thomas and Sotomayor–are worth reading apart from the law. But Supreme Court justices who write books about the law are generally not going to persuade anyone. The books will be forgotten as soon as the book tour is over. For what it's worth Justice Breyer has another book coming out in October–another data point that he is not going to retire.

This background brings me to Justice Barrett. According to Politico, her book will be about "how judges are not supposed to bring their personal feelings into how they rule." That topic is generic enough. But is she really qualified to write that book? At this point, Justice Barrett has issued a grand total of two majority opinions. And she was a circuit judge for about three years. During that brief stint, she wrote about 100 opinions. This sort of lofty opus should be based on a career of judging. Not on such a brief tenure. Even Justice Gorsuch had a decade of circuit court decisions to draw on. I will, of course, reserve judgment till I read the book. But I'm skeptical.

I was long confused by the fact that Justice Kagan never wrote a book. She was an academic who wrote influential articles–though her output was quite limited. Why has she written nothing since joining the bench? And then it hit me. What would she write about? Her entire career has been based on trying to strategically push the Court to the left. She was like Justice Brennan with only four, and now three fingers. I can't think of any important jurisprudential contributions she has made in dissent, other than a commitment to stare decisis. Breyer has his unique views about Democracy and international law. And he keeps writing books on those themes. What would a Kagan book even look like? Her most influential actions are hidden to the public.

NEXT: Heller's Sad Bar Mitzvah

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  1. Justice Barrett’s personal life is more interesting to the public than her dry, cliché judicial views. She should invite a reality show into her family to humanize the court. To her credit, she is not an Ivy indoctrinated lawyer. She is a real American from the Midwest. She can make a lot more than $2 million from a reality show, including limitless merchandizing opportunities.

    1. On a more human basis, she’s actually “walked the walk” on being both a mother and having a professional career, and how on earth she ever managed to accomplish that is going to be an interesting story.

      That said, as I understand it, SCOTUS justices can’t accept honorarium for giving speeches and hence why can they for writing books? Aren’t there some legal or ethical rules here???

  2. I enjoyed reading Rehnquist’s history of the Supreme Court. He wrote several historical legal books.

    1. +1

      Was never a fan of his jurisprudence, but Rehnquist’s legal history books were very informative.

      1. Rehnquist’s Supreme Court book has two chapters on Youngstown (during the events of which he clerked for Justice Jackson). Strongly recommend, as he was a participant.

        1. Well, not participant. Bad choice of words. Better to say witness. (must start proofreading these)

  3. “a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.”

    There’s always James Wilson’s (posthumously published) law lectures, Justice Story’s *Commentaries,* and David J. Brewer’s *The United States: A Christian Nation.*

    Oh, and that Posner quote started off as a joke by Samuel Johnson about women preachers, you sexists!

  4. Douglas wrote about climbing the Himalayas. A bad man but at least he had an interesting life.

  5. I admire Justice Kagan’s opinions and her contributions to oral argument. Now that Prof. Blackman has criticized her, I admire her even more.

  6. These book deals are money laundering, plain and simple.

    You don’t bribe someone who can’t change an outcome.

    Gorsuch’s advance makes it seem like he isn’t someone they trust to stay bought.

    Kavanaugh perhaps already got his payday.

  7. This lost seems a bit like sour grapes.

    When you become a Supreme Court Justice, people become interested in what you have to say. Given how important in people’s lives the Supreme Court has be ome, this doesn’t seem especially surprising.

    Professor Blackman’s gripe reads a bit like an English professor complaining that, say, J.K. Rowling never so much as got a graduate degree in literature, so what right does she think she has to make money writing books? The fact of the matter is, often the successful people are the people for whom the stars align.

    This isn’t really any different. Professor Blackman may think the world isn’t fair that these people are making the big bucks selling their books and he isn’t, that people are interested in reading what these people have to say but not him, just because they’re Supreme Court Justices and he’s a professor at a university few have heard of. But you know what? Sometimes the world just isn’t fair.

  8. “I agree with Judge Posner’s criticism of Justice Breyer’s book, Active Liberty”

    Wonderful! Be sure to adopt the rest of Posners judgment, including his harsh critique of originalism and the surprising controversial belief judges should actually know what subject matter they are talking about, and we ought to be on the same page about things.

  9. “There are exceptions, of course. Justices Scalia’s works are iconic. We will be reading his writings for decades to come. ”

    Oh come on. Did you see what Posner had to say about Scalias book?

  10. Supreme court Justice is supposed to be a full time job. If Justices have time to write books, the Supreme court isn’t taking enough cases.

    I think it’s as simple as that: The questions of whether the book deal is a disguised honorarium, of whether she actually has anything to write about that’s worth reading, we shouldn’t even be getting to them, because if she has time to be writing a book, she’s not spending enough time on her day job.

    None of them are.

    1. Lots of people have written books while holding full-time jobs, just like they’ve raised families, written articles, and pursued hobbies. And for that matter posted on legal blogs.

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