The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.
