Closing Thoughts on Book Deals for Justices

Going forward, the Justices should agree to caps on book royalties and advances.

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Since writing my two posts about Justice Barrett's book deal, I have been reliably informed that the description from Politico was incorrect. Two people independently told me that the book will not be about "how judges are not supposed to bring their personal feelings into how they rule." Rather, they said, the book will be a collection of letters Justice Barrett wrote to correspondents during the confirmation process. Going forward, I will assume this account is correct–and I have every reason to believe it is. At this point, Sentinel, the conservative imprint, should issue a press release to announce the book, and describe the project. Ideally, the release would include some quote from Justice Barrett herself. Knopf issued such a release for Justice Sotomayor's memoir in 2010.

This episode illustrates the pitfalls of a Supreme Court justice writing a book. Much of my negative commentary here is likely informed by my experience with book publishers. And I think that background will shed some light on my critical posts.

I've worked with a popular press, an academic press, and a trade press. Perhaps the greatest advantage of an academic press is they are the least interested in selling books. The goal of an academic press is to spread influential ideas. Maybe those books will be sold to libraries, and have some course adoptions. Thankfully, expectations are low. For that reason, the advances are small (or $0) and the royalties are tiny. Yet, academic publishers provide authors–generally professors–with the greatest autonomy and latitude. When I worked with Cambridge University Press, I never felt the slightest pressure to produce a certain type of book for a certain audience. There were no efforts to trim the size of the book–Unraveled ballooned to nearly 600 pages. Nor was there any attempt to influence how I marketed the book. The process was entirely hands-off. Of course, that meant that not that many books were sold. But I knew those details going in. (And thankfully, I greatly exceeded Cambridge's low expectations).

The popular press was an entirely different experience. The goal of a popular press is to sell as many books as possible. Full stop. And that demand exerts a lot of pressure on the authors. My first book, Unprecedented, was published with a popular press. On the whole, the experience was positive. But throughout the process, I felt pressure to produce a more edgy book that will appeal to conservative buyers. I resisted that pressure, because I wanted to write a more neutral book that would be the definitive account of NFIB v. Sebelius.

An anecdote will illustrate these dynamics. From the beginning, I wanted the title to be "Unprecedented." It encapsulated in a word the constitutional arguments in the ACA litigation. At one point, I joked with my editor that we could call the book The People v. Obamacare. I was riffing on The People v. Larry Flynt. (Which, by the way, has one of the most realistic SCOTUS scenes in any move I've watched; the Justice Scalia actor read the question from the transcript, almost verbatim). My editor loved this farcical title. Indeed, he sent a book notice with that title to Amazon! I was furious. That title would convey a very different message, and not at all appeal to the market I wanted to target. We had a huge fight, and I threatened to cancel the entire project, walk away, and return the advance. (A good rule of thumb: never begin any project unless you are really willing to walk away). Finally, the editor relented and we went with my preferred title.

Later in the process, I delivered the final manuscript. The editor said it was 25,000 words too long. Yes, I actually had to delete the equivalent of a law review article. Trashed. Plus I had to completely rewrite the ending to make it more edgy. Some of the suggestions were helpful. But I was not fully satisfied with the revised ending. It is the weakest part of the book, in my estimation. And so on. My point is that popular presses have very specific expectations. Law review editors fight over picayune footnotes, but generally let authors write their own articles. Popular presses take a much more hands-on approach.

That background brings me to conservative imprints. While I was shopping the proposal for Unprecedented, I spoke with an editor at a famous conservative imprint. (If I said his name, you would know it). We had a really friendly chat, where he told me exactly what he expected. He wanted a book that would appeal to the then-booming Tea Party audience, and get me booked on Fox News. He wanted something that would savage President Obama as a lawless autocrat, and attack the ACA as a socialist takeover of health care. I had no interest in writing that book, and I did not pursue that option.

Sentinel, the conservative imprint Justice Barrett signed with, is in the same ballpark as the imprint I spoke with. Sentinel is currently featuring books by Allie Beth Stuckey, Dave Rubin, and Jordan Peterson. (If you don't know who these people are, google them.) These books are targeting a very specific conservative audience. Now I don't think an editor would try to push around Justice Barrett, the way I was pushed around. But the relationship can be distorted in different ways. Specifically, the publisher has latitude to market the book in ways that may not cohere with Justice Barrett's direction.

Take the quote given to Politico. It is possible that someone from Sentinel gave it to a journalist. That unnamed sources may have been misinformed about Barrett's book. Or, the sources may have been trying to pump up the book to appeal to more buyers. (A book of letters sounds lovely, but would not offer any insights into ACB's judicial decision-making process.) It's also possible the Politico sources did not work for Sentinel. Maybe even a flak at a competitor leaked the quote. Who knows?

But here we are, arguing over the content of a book deal for the newest member of the Supreme Court. How to resolve this impasse? Does the Court's PIO office release a statement? Of course not. Does Justice Barrett start tweeting? Lord no. Instead, the publisher should issue a press release. (My suggestion at the top of the post). And Justice Barrett should be much more active in the press materials to avoid any future errors. Yet, herein lies the dilemma.

Why should a Supreme Court justice be wasting her time on these sort of mundane matters? There are so many more important things to be done. Read more cert petitions. Write more statements concerning the denial of certiorari. (I really respect Justice Sotomayor's attention to the docket). Write more concurrences expounding on the original meaning of the Constitution. All of those tasks would actually advance the law. Spending time to write, and publish a book that is a collection of letters? That should not be a priority now. In a decade, write an opus like Reading Law or A Matter of Interpretation. At that point, there will be 17 Justices (the next prime number after 13), the Court's jurisdiction will be substantially stripped, so the workload should be lower.

This realization brings me to my final point. The federal courts impose very strict rules on outside sources of income. And the Supreme Court seems to follow this rule as a matter of practice. For example, judges are allowed to teach, but usually cannot earn more than about $20,000 per year. (Update: I am informed the number is now closer to $25,000, ore even $30,000). That's about it. Yet book advances and royalties are trapped in some sort of ethical black hole. A publisher is a for-profit concern. During the terms of a book contract, the Supreme Court justice works for the publisher. It is a traditional principal-agent relationship. In my prior post, I identified the inherent conflict of interests between writing opinions that appeal to conservatives and selling books that appeal to conservatives. These conflicts are not allowed to exist in any other context. But, for whatever reason, book contracts are exempt.

I think there is only way to cure this problem: a cap on annual royalties and book advances. Perhaps pegged to the same amount as teaching gigs. Any royalties or advances above that amount can be donated to charity. (RBG routinely donated prizes she received to charity). Or deposit the money in the United States Treasury. Wherever. But Justices should not be able to use the prestige of their office to sell books to the public, and in doing so create inescapable conflicts of interests. (And don't try to tell me that a book royalty is an emolument–I know Justice Breyer has sold his books abroad.). No other government employee can write a book while in office. Then again, most government employees lack life tenure. Here, I am unsympathetic. There are plenty of ways for lawyers to make lucrative careers. Serving on the Supreme Court is not one of those ways. The Nine know what they are getting themselves into.

I am generally skeptical of most efforts to "reform" the Court, but this proposal should be given consideration.

NEXT: Unpublished Sixth Circuit Decision Comments on U.S. Immigration Policy

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  1. Two people independently told me that the book will not be about “how judges are not supposed to bring their personal feelings into how they rule.” Rather, they said, the book will be a collection of letters Justice Barrett wrote to correspondents during the confirmation process.

    Not for nothing, but those two things may well both be true. One is about subject, the other is about form.

  2. “There are plenty of ways for lawyers to make lucrative careers. Serving on the Supreme Court is not one of those ways.”

    Supreme court justices earn more than a quarter million dollars a year. I have to break this to you: Even in D.C, the wealthiest area in the country, (And that’s very revealing about what has happened to the country!) the median household income is only $92K. For the country as a whole it’s $62K.

    Actually, serving on the Supreme court IS one of those ways, for almost everybody’s idea of “lucrative”.

    1. What is the median high-powered lawyer salary in DC?

      Somebody is buying the multi-million-dollar houses around here, and it ain’t school teachers, sanitation workers, or grocery stockers.

      1. OTOH, no one gets drafted to serve on the court. Don’t like the pay, work elsewhere.

    2. It’s not the govvies who make the counties of the Great State of Northern Virginia the wealthiest area in the country, it’s govt contractors.

      The amount of federal money that flows into NOVA is. . . crazy, maybe obscene.

      And it does flow down to caterers, bldg management companies, SCIF builders, cable installers, and also home builders, gardners, maids, etc.

    3. Brett,
      You have a very distorted view of compensation for senior level professions.
      Even in the government national laboratories, senior scientists and engineers are paid ~200K. Those with managerial duties commensurate with the responsibility of a SCOTUS Justice ae typically paid ~$250K.
      That salary may make one upper middle class but the level is hardly lucrative in the general sense of that word.

    4. She does have something like six kids that are all going to need to go to college, and I doubt that the Univ of DC (with an 18% four year graduation rate) will do.

      But when you compare this to the scams that the Clintons pulled, starting with Whitewater and Hillary’s hog futures and extending through Bill’s speaking tour while she was Sec of State and then the fraud that was the Clinton foundation — why pick on ACB?

  3. Two full articles pontificating and whinging about a book to be written by a (female) Justice only to find that one of the premises for those articles is wrong. It’s not enough just to say “oops” now, is it? Is it ever, amirite? Instead we get 14 more paragraphs explaining why the book deal is responsible for your considerable overreaction to the book deal.

  4. Josh should support the free market. If a Justice is corrupt, impeach. Leave people alone. Lawyers should stop being little tyrants.

    Politico is Soros propaganda hate speech oulet and dismissed.

    1. DB’s typical blah-blah

  5. Alright, you’ve convinced me that there is more to this than I had thought. As I understand it,

    1. The book is being published by a partisan conservative press rather than by a university press or mainstream highbrow book press.

    2. The book business, including large advances not justified by sales prospects and buying otherwise barely salable books in bulk for distribution to donors or members, has become a routine way that partisan political organizations funnel money to favored politicians for personal use without running afoul of the bribery laws. The book itself is becoming increasingly a sham.

    3. Allowing unlimited income for books should be thought of as a loophole. It is an exception to otherwise tight limits on outside income for federal judges, coming perhaps from days when the publishing industry was thought a genteel affair. This loophole is being increasingly exploited by political influence peddlars and money launderers.

    1. That sums up my understanding.

      How many individuals are going to cough up for a book of Barrett’s letters?

      1. Very few are going to cough up the dough. The book deal serves another purpose.

      2. If you look at it as a donation to the cause and not a purchase, then it makes sense.

      3. Depends. Will she title the book “I Want To Tell You”?

    2. “The book is being published by a partisan conservative press rather than by a university press or mainstream highbrow book press. “

      The only reason why there are conservative presses is because the university and mainstream presses have banned anything to the political right of Vladimir Lenin.

      Everything else is still true, but don’t think that the university presses are still the blushing virgins they once were — like the rest of the university, they is woke. And as to the mainstream publishing houses, do you have any idea how much they have consolidated in the past 20-40 years?

      “days when the publishing industry was thought a genteel affair”

      I’d argue it’s that now — I don’t think anyone accepts unsolicited manuscripts anymore — while in an earlier (more competitive) era they welcomed them.

      1. “The only reason why there are conservative presses is because the university and mainstream presses have banned anything to the political right of Vladimir Lenin.”

        So……YAAAAY First Amendment!

        Isn’t that the way it’s supposed to work?

      2. “The only reason why there are conservative presses is because the university and mainstream presses have banned anything to the political right of Vladimir Lenin.”

        Have they? Since when? The university presses, especially the public ones, generally publish almost anything well-written. Plenty of conservative academics use the university press. Public universities have a first amendment obligation to be viewpoint neutral.

        The ones who are driving most of speech suppression are the students, you realize that right? How many students give a shit what the university publishes?

        1. “….university presses, especially the public ones, generally publish almost anything well-written. Plenty of conservative academics use the university press. Public universities have a first amendment obligation to be viewpoint neutral.”

          If I was in need of some laughter therapy, your comment would help. Instead, it was just depressing, because I think you actually believe what you wrote (why else write it).

          University press editors are not obligated to be viewpoint neutral.

      3. The only reason why there are conservative presses is because the university and mainstream presses have banned anything to the political right of Vladimir Lenin.

        I’ve worked with a popular press, an academic press, and a trade press. Perhaps the greatest advantage of an academic press is they are the least interested in selling books.

        -Conservative hack Josh Blackman, in the post you’re commenting on, you knuckle-dragging fabulist.

    3. 2. The book business, including large advances not justified by sales prospects and buying otherwise barely salable books in bulk for distribution to donors or members, has become a routine way that partisan political organizations funnel money to favored politicians for personal use without running afoul of the bribery laws. The book itself is becoming increasingly a sham.

      And don’t forget the subsequent crowing about what a well-regarded bestseller the book is, based on an avalanche of glowing reviews from those straw purchasers. The entire scheme is nauseatingly cynical.

  6. I’ll be honest, professor, you do kinda need to trim your writing significantly 🙂 It isn’t bullying for an editor to express this to a writing, writing ought to be concise. Even if the natural tendency of writers is to be too long. I don’t see a problem with what the editors said.

    Now, asking to make your work more “edgy,” yeah I would see that as problematic. But it does give perspective that a lot of the issues with freedom of speech today is not just a leftward slant, through there is that, but it is a push from all directions to become more clickbait-y and extreme. Which is unfortunate.

    1. But it does give perspective that a lot of the issues with freedom of speech today is not just a leftward slant, through there is that, but it is a push from all directions to become more clickbait-y and extreme.

      I strongly recommend this piece by the lefty Freddie de Boer on this. His politics may not be everyone’s cup of tea here, but he gets the incentives in the media industry absolutely right.

      https://freddiedeboer.substack.com/p/cynical-motives-for-a-cynical-time

  7. Regarding books in general, idk I bought Ben Sasse’s book a few years ago and … it was ok? I guess? The politicians are not writers and it shows. Now, it can be interesting to read primary perspectives, but this thing there people in power write books which take precedence over actual thoughtful expression strikes me as problematic.

    I also read Nikki Haley’s and also Obama’s book about a year ago and it just felt … weird. Like you would think actually being in “the room where it happens” gives you a thoughtful perspective on certain issues but the books themselves read like a long internet commentator rant. Very little in the way of actual information. It’s dumb. A neutral observer, with the statistics in hand, could do much better. From either side. Even, perhaps especially, if they are not in the room.

    I don’t necessarily have a problem with the money people make by this. My concern is about the phenomena itself.

  8. ACB and Pence, with their $2 million dollar respective book deals, are getting their 30 pieces of silver.

    1. Pence isn’t in office anymore, nor is his wife. Nor is he likely to be again — which is a shame because I think he was behind a lot more of Trump’s successes than we know.

      He has an interesting story to tell, and as someone who first made it as a radio talk show host, he well may be able to tell it well.

      I know Trump’s side of January 6th, and agree with Trump, but I would like to hear the other side of the story.

      1. “I know Trump’s side of January 6th, and agree with Trump, but I would like to hear the other side of the story.”

        The other side is the vice president can’t unilaterally overrule the election? Which seems obvious? And he was attacked for upholding that obvious position.

        1. It was a long shot to expect Pence, or anyone in that position, to act with the extraordinary courage that the situation required.

          1. Sigh …do yall actually believe this bullcrap? I mean come on. Trump lost. I voted for him too but he lost the election. If the meaning of the word conservative is now believe in provably false things, then f it, there is no point in it anymore.

            1. Trump lost, indeed, because in Georgia (for example) boxes of ballots were pulled out of a hidden place and run through the scanners for hours and hours while GOP election observers and the press were told to go home. It’s all on video. Denial ain’t just a river in Egypt.

              That said, are you aware that 30% of Democrats believe that enough cheating occurred to swing the election?

              1. “Trump lost, indeed, because in Georgia (for example) boxes of ballots were pulled out of a hidden place and run through the scanners for hours and hours while GOP election observers and the press were told to go home.”

                That straight up did not happen. It has been debunked a number of times. The GOP runs the state of Georgia. And yet we are lead to believe that the state engaged in a massive conspiracy against its own party? Really?

                National Review debunked it, Fox News debunked it, the presidents defenders debunked it, so you ignored them and went to sources that were willing to lie to you. That is stupid, and you can’t expect people to follow a movement built on a lie.

                And we also have to believe this only affected the presidential election right? How would that even work? Yeah they modified the presidential ballot but the local races went just fine?

                Trump lost because he was an asshole. Agree or disagree with his policies, he is an asshole. I dont know why that is so hard to believe.

                “That said, are you aware that 30% of Democrats believe that enough cheating occurred to swing the election?”

                And? Your point being?

                1. “Trump lost because he was an asshole. Agree or disagree with his policies, he is an asshole.”

                  That assessment is being kind to Trump

          2. ” to act with the extraordinary courage that the situation required.”
            you mean to act in violation of the law

    2. So who’s Jesus in this scenario?

  9. Another solution looking for a problem.

  10. Prof. Blackman, perhaps your next book can be a review of your blog posts here. (The topic—yourself—should appeal to you.) I’d suggest the title Unneccessary.

    1. So far that is the Snark of the Day

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