The Deeper Problems with Justice Barrett's Book Deal

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Yesterday, I criticized Justice Barrett's reported book deal with Sentinel, a conservative imprint. According to Politico, she will write about "how judges are not supposed to bring their personal feelings into how they rule." I struggle to understand why a publisher would give Barrett a sizable advance for a book on this topic. She has been a judge for a short time, and has decided very few cases. Perhaps Sentinel predicted that Justice Barrett will generate a lot of buzz. She will go on a splashy book tour. She will speak to a wide range of groups and sell her feelings-free approach to judging, whatever that is. I fear this premature project could be problematic for Justice Barrett's nascent tenure. Here, I will identify four principal problems.

First, what could Justice Barrett possibly have included in her book proposal about judging? I reviewed her appellate record last fall, and my tentative read was that she didn't have many tough cases. As one of the junior judge on the Seventh Circuit, it was unlikely she would even have been assigned any significant majority opinions. On the Supreme Court, Justice Barrett has written two majority opinions, neither significant. Her only important writing to date was to rule that worshippers could not sing in a California church during the pandemic. (I'll come back to this case later). Perhaps Professor Barrett had long ago worked out a complete theory of judging. If so, that's news to me. I reviewed her law review articles last year. I didn't see any evidence of some all-encompassing theory. And we certainly didn't hear much about that theory during her confirmation hearing. Her testimony was lovely, but she stuck to general platitudes. How deep can this theory be that she worked out in the span of a few months?

Second, my greatest fear for this book is that Justice Barrett will set lofty standards for judging that her detractors will use to criticize, and even pressure her. Let's say she praises the importance of stare decisis. What better way is there to keep feelings out of law than to stand by precedent? She may even cite her decision not to overrule Smith in Fulton. (She very conspicuously signaled that position during oral argument). Forevermore, if Justice Barrett wishes to overrule some precedent, her book can be used against her. Let's say she explains why she needs to keep her Catholic thought out of her decisions. In the future, her book will be used against her in abortion and death penalty cases. Let's say she insists that textualism is not a conservative jurisprudence, but is neutral. Hello Bostock II. (I query whether Justice Gorsuch's devotion to textualism in his book may have greased the skids for Bostock). Justice Barrett's job is too damn important to make unnecessary concessions in a book. Anything that can be used to exert influence over her in the future is an unforced error. Why? Why write this book now? Why give Justice Kagan ammunition to cow you into submission?

Third, I worry about the book tour. In my view, one of Justice Barrett's greatest assets was that she was not from the Acela corridor. She hails from what Justice Scalia called the "vast expanse in-between." This remove, I hoped, would insulate her from the demands of coastal-people-pleasing. Alas, writing a book–even with a conservative imprint–will force her to embark on a tour of coastal-people-pleasing. She will have to speak to audiences of different ideological perspectives. And she will have to custom-tailor her speech to appeal to those different audiences. Instead of giving a zealous defense of originalism, she will likely discuss some sort of watered-down jurisprudence. I know the switch, because I've done it before. I will give a very different accounting of originalism at, say, a Heritage Foundation talk, then I would at a Northeastern law school. Any good speaker knows his audience. Perhaps the only outlier on the Court is Justice Alito. He has an IDGAF approach to speeches. Look no further than his fiery 2020 Federalist Society address. I can't see Justice Barrett taking this sort of message on the road–at least if she wants to sell some books. I hope she carefully reads Scalia Speaks and uses the Boss's approach as a model.

Fourth, Sentinel, a conservative imprint, should have waited to see Justice Barrett's conservative record before forking over two million dollars. My next point is grotesque, but I need to make it. Conservatives will not buy a book written from a disappointing Justice. If Justice Barrett follows the track of Justice Kavanaugh, then conservatives will soon write her off. Look no further than her COVID case. Can Justice Barrett go in front of a religious group, and explain why she ruled against worshipers' right to sing? Of course, that question will be screened out. But people don't forget.

Going forward, Justice Barrett faces perverse incentives. On the one hand, she will be marketing her book to conservative buyers. (Liberals will never forgive her for taking the Ginsburg seat). On the other hand, she will be deciding cases that could alienate conservative buyers. I don't think the conflict of interest is inescapable, but it is obvious. After some reflection, I no longer think Supreme Court justices should write books, or go on book tours. There is a good reason why judges have limits on outside income. But, for whatever reason, multi-million dollar book advances are exempt.

I hope Justice Barrett takes this criticism in good faith. I had, and have high hopes for her. But so far, I question her judgment on and off the bench.

Update: A colleague reminds me of Justice Scalia's preface from Reading Law:

One final personal note: Your judicial author knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here—whether because of the demands of stare decisis or because wisdom has come late. Worse still, your judicial author does not swear that the opinions that he joins or writes in the future will comply with what is written here—whether because of stare decisis, because wisdom continues to come late, or because a judge must remain open to persuasion by counsel. Yet the prospect of "gotchas" for past and future inconsistencies holds no fear.

NEXT: “The Reconstruction Amendments: Essential Documents,” Vol. 1: The Antebellum Constitution and The Thirteenth Amendment

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  1. The culture of Washington will change heri nto another rent seeking, big government dumbass.

  2. “Conservatives will not buy a book written from a disappointing Justice.”

    Faulty logic. “Conservatives” are not monolithic. 75 million people voted for Trump. About 4 million watch Fox. Some of them will buy the book no matter what. And, it does not take a very big number to justify 2 million dollars.

    It may be a bad idea, but who cares. Justices have a first amendment right to say stupid shit and get paid for it.

  3. As I stated below, my biggest concern about this is that she has time to be writing books!

    Again: Supreme court Justice isn’t a part time job. The Justices shouldn’t have enough time on their hands to be writing books, they should be busy handling cases.

    Justices writing books is proof they’ve reduced their own workload too much. Is there some way to reform the system so that they can be forced to go back to being full time justices, not part time?

    All sorts of pressing issues, circuit splits, civil liberties violations, are being blown off by this Court, and they’re out writing books and going on speaking tours. They’re not doing their day job!

    1. She can hire a professional writer for $100000.

      1. She could pay for it out of the 2 mil for sure, but I suspect a ghost writer was part of the deal as well. Unlikely to be a shortage of people willing to ghost write for her.

        1. They could put 100 monks on it, no charge.

          Although they might wish to avoid telling the monks that their work is for a woman.

      2. I think SCOTUS is handling the work load just fine. If Congress would do their work, the SCOTUS load would be reduced by 75%

    2. You know SCOTUS has a yearly ~4-month recess too, right? And every Justice engages in various sidelines, although most are uncompensated, at least in terms of express dollar amounts. I seem to recall that fellow Scalia coauthored a book or two during his time on earth. Putting aside the substance, I think we all recognize that the Justices tend to be far more skilled and prolific writers and speakers than us petty mortals.

      We can certainly have a debate over the Court’s present workload, but as it stands they have no shortage of downtime, plus the means and desire to take advantage of that. (And to your question, if Congress wishes it can easily give SCOTUS more to do.)

      1. Yes, I know they have a recess, though it’s not at all clear to me why they need a recess.

        I think it’s mostly a case of “People in control of their own workload don’t tend to assign themselves a lot of work.”

        1. I very much agree with Brett here.

          1. I don’t. People in charge of their own workload assign themselves too much, to little, or not enough, depending on their own proclivities.

            We’re super flexible where I work, and workaholism is a serious problem.

            Though a 4 month recess is pretty nuts.

            1. Lower court judges don’t generally take 4 month recesses, and many of them are not workaholics.

            2. “Though a 4 month recess is pretty nuts.”

              And people think that we teachers have it easy with summer, winter, and spring breaks. (Together, that all adds up to around 3 months) Of course, we literally are not paid for that time. It is not part of our contract. Most districts will give teachers the option of having their paychecks spread out evenly throughout the year, but the district I started with last year does not. So I do not get a paycheck during the summer.

        2. I support an 8 month recess. Why strain at such a low wage?

          1. The less these dumbasses do, the better off the nation.

    3. Being a Supreme Court justice is a part-time job. They only work part of the year, and my understanding is that they have been reducing their workload over the past several decades. In the past, many justices were very active outside their official roles, something that tended to be overlooked.

    4. How do you know they are not doing it in their free time? Or is your position that judges/justices should have no free time?

    5. “they should be busy handling cases”

      Those 70 decisions a year are not too tasking. Even with “shadow docket” items, they have plenty of time.

    6. Um, people with full time jobs write books.

      1. People with full-time jobs write books . . . and read books, watch movies, build families, play basketball, read blogs, volunteer for political activities, cook dinner, perform charitable work, drink beer, play drums, clean aquariums, coach baseball, attend Southside Johnny or Stevie Wonder concerts, have other jobs . . . and more.

        People who control their workloads — sole proprietors, for example, but also supervisors and entrepreneurs — often work harder than most employees, in my experience.

        The varying perspectives with respect to these issues are fascinating.

  4. As the junior judge on the Seventh Circuit, it was unlikely she would even have been assigned any significant majority opinions.

    Does the Seventh Circuit assign cases? I was under the impression that they are assigned randomly.

    1. Presumably the logic is that she would be likely to be the junior judge on any given panel she might sit on.

      1. That was my reading of the statement, also. The most senior judge on the panel in the majority would probably determine who writes the opinion for the majority.

  5. The only thing that could be interesting about this woman is how she justifies the male supremacism in the groups she belongs to (“People of Praise”, the Catholic Church), and I’m pretty sure she’ll stay mum about that.

    1. This is not the blog you are looking for.

    2. Or rather, she’ll wait for orders from her husband, who will instruct her to stay mum.

      1. Please do not create the impression you are criticizing her for following divine commands, whose provenance and power are unaffected by the modern conceit of men and their reason.

        At least, not at this blog.

      2. It’s funny that you think a woman who is far more accomplished in her chosen field than you likely ever will be in any field, and is in a position of considerable authority is somehow akin to a repressed, submissive hausfrau.

        1. Even the most accomplished, hardworking and super competent Mother Superior has to obey her (male) bishop.

          1. This sounds like a serious case of projection. But it’s nice of your top to give you permission to remove the ball gag and speak out like this.

        2. Your quarrel seems to be with the Catholic Church and the People of Praise, clinger.

    3. “this woman ”

      Left wing misogyny is always fun to see.

      The fact that you think there is something wrong with a woman being a Catholic is just perfect.

      1. I don’t think you know what I’m referring to.

        1. Well then explain yourself better.

  6. “…she will write about “how judges are not supposed to bring their personal feelings into how they rule.””

    And perhaps she either knows judges who have opinions about this, or has access to the comments of prior judges about it. Lots of folks have written about the Civil War, for example, without having been a soldier in the Union or Confederate army. I can’t see why writing on this subject requires personal experience.

  7. 1. Books by Supreme Court Justices that purport to be substantive (leaving aside memoirs), suck.

    2. Justice Kagan hasn’t written a book, which would probably suck if she did write one.

    3. Something is wrong with Justice Kagan because she won’t burden us with a sucky book.

    The connections here aren’t obvious.

    1. Rehnquist wrote various books that I understand were fairly well received. Love or hate him or in between, he was a pretty decent writer.

      I’d wager Kagan has at least one good book in her, if she were ever so inclined.

      For my money, this is the strangest book ever penned by a political figure.

      https://en.wikipedia.org/wiki/The_Apprentice_(Libby_novel)

      1. I don’t disagree with you. I’m laying out what JB is saying.

  8. One voice out of many she will be. Many concerns juggle she will have to do. Condemn her as a hypocrite her enemies will do.

  9. Some years ago, when there were still books stores, I walked past one and the store had an entire table filled with political books. You didn’t have to be an environmentalist to feel that it was a complete waste.

  10. Sentinel, a conservative imprint, should have waited to see Justice Barrett’s conservative record before forking over two million dollars. My next point is grotesque, but I need to make it. Conservatives will not buy a book written from a disappointing Justice.

    I’d say that’s Sentinel’s concern, not Blackman’s. It’s their $2 million, after all. Still, the possibility of bulk purchases does raise a concern.

    1. It is not Blackmun’s concern either.

      1. Well no, because he’s been dead for quite some time.

  11. Look, everyone knows what this is all about. It is not economics, no way this book earns back its advance. It’s about giving a bunch of money to a conservative judge and sending the message to potential conservative judges who worry about money that, no, we will take care of you.

    Bulk book purchases by political groups will fund most of this, just another work around for conservatives of no principles to pay off judges who do their bidding.

    And thanks to Prof. Blackman for his commentary!

    1. Given how Trump’s merchandising sold, I’m not too worried about the publisher earning back this advance.

  12. An argument for lifetime tenure of federal judges is that it gives them the freedom to do their jobs without worrying about pleasing a popular audience, but that argument is weakened once they are tempted to play to that audience to secure their next multimillion dollar book deal.

    1. Agreed. The whole point is that their income wasn’t supposed to hinge on pleasing people.

      1. Well, unlike the President the judiciary is explicitly allowed to receive a pay increase during their tenure, so that can’t be entirely right.

        1. Well, yes, but those pay raises are irreversible, while if you’re getting book royalties they can vary.

  13. Going forward, Justice Barrett faces perverse incentives. On the one hand, she will be marketing her book to conservative buyers. (Liberals will never forgive her for taking the Ginsburg seat). On the other hand, she will be deciding cases that could alienate conservative buyers. I don’t think the conflict of interest is inescapable, but it is obvious. After some reflection, I no longer think Supreme Court justices should write books, or go on book tours. There is a good reason why judges have limits on outside income. But, for whatever reason, multi-million dollar book advances are exempt.

    This seems correct and it goes for both left and right. No justice should feel constrained to fit a political category, but book deals create perverse influences: no conservative will want to buy Justice Souter’s book and no liberal will want to buy Justice White’s book (if that had been a thing). If the book were a technical treatise on federal jurisdiction that wouldn’t create the same issues, though it may create others.

    More generally, the use of book sales as a means of grift, from Jim Wright forward, is odorific enough that the Supremes should keep away.

  14. Given what this development indicates about her priorities, I am tempted to offer to arrange a bulk transaction of 50,000 books if she calls it “A Handmaid’s Tale.”

    1. My mistake. That should have been ‘if her husband decides to call it “A Handmaid’s Tale.’ ”

      My apologies to the Barretts’ fellow believers.

  15. Well, she does have a lot of kids to put through college. So every extra little $ide hu$tle helps. That’s probably why RBG was driving for Uber on her days off and Kagan is delivering for Domino’s on the weekends.

    1. Ginni Thomas will come off the payroll in due course, freeing plenty of funding for the Barrett children.

  16. I dunno….two blogs about this?

    Could it be Prof. Blackman wanted to be part of the Justice’s writing team and was spurned – and now he’s lashing out?

    Just an idea. . . .

    1. I think it’s just professional jealousy. That usually explains most anything Blackman does or says. Not only did no one tap him for any judgeships, but also Barrett gets a juicy advance right out of the gate, while Blackman’s oeuvre isn’t exactly flying off the shelves.

  17. I’ve read Justice Kagan’s most recent financial disclosure (that I could find), she lies. She didn’t list the the ownership of the large mansion she has in Blackmun’s head that she lives in rent free. There should be a Congressional investigation.

    Honestly, it’s pathetic how no matter what the post is supposed to be about you find a way to make an “off hand” statement about Kagan basically being the devil to you.

    1. *Blackman

      We really need a freaking edit button

  18. Josh Blackman criticizing someone else for writing too much on areas they don’t know enough about.

    You cannot make this shit up.

  19. Conservatives venerate (and encourage people to read the works of) Scalia, Alito, Thomas, and (soon) Barrett . . . but if you want to understand America’s future, focus on Brennan, Ginsburg, and Kagan.

    1. If you want to imagine America’s future, never mind that published rationalizations of our brave new order, just think of a sensible shoe stomping on a human face forever.

      1. You seem disaffected in modern America, Cal Cetin.

        Great!

        1. The shoe won’t be on *your* foot. They may even turn on you for not being woke enough, or for being too white.

  20. The answer is simple – she got her ticket punched. That is how it works and will continue to work until us normals do something about it.

  21. Generally, I like to hear from judges about what they’re thinking. Maybe you won’t get their real-real thoughts in a carefully vetted book or speech, but it’s nice to keep up with what’s on their minds.

    That doesn’t mean I like to hear about these big advances or swampy behavior with publishers.

    Also, I’d have to look at the book to see if it actually contains useful information about a judge’s thoughts.

    For books or speeches with substantive content, there’s James Wilson’s law lectures, Story’s Commentaries, and Justice Brewer’s defense of the U. S. as a Christian nation. Say what you will, you at least get to see what these authors *really* think.

    And Brandeis and Cardozo have fascinating pre-judicial (not prejudicial) works.

    But the trend of some Justices is to have soft-focus memoirs about growing up on a ranch…yeah, yeah, I’d love to learn how riding horses taught you valuable life lessons, but what about Roe v. Wade?

  22. My question for every judge/justice that makes a claim like Barrett’s, is ‘Can they point to a decision they’ve authored that stands against what their personal opinion may be?’

    Barrett is very religious for example. It’s sure a nice coincidence that every decision touching religion just happens to coincide with the pro-religion side, right?

    This isn’t unique to her, or conservatives.

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