The Volokh Conspiracy
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Court Watchers Can Safely Skip Justice Jackson's New Book
She doesn't write about the Court, and the press is strictly prohibited from asking about anything of interest.
Unless you've been living under a rock, you will have seen wall-to-wall press coverage about Justice Jackson's new book. She has already made headlines by saying something about an enforceable ethics code and something about the immunity case and something about the election. But if you read the transcript, she really didn't say anything at all about the Court. And you'll find much the same in the actual book.
Abbe Van Sickle of the New York Times sounds almost frustrated with how little Jackson reveals:
Justice Jackson was far less forthcoming about the current court, where she and the justices have come under historic scrutiny after the leaked draft of its decision to overturn the constitutional right to abortion. Revelations about the failure of some of the justices — most notably Justice Clarence Thomas — to disclose luxury gifts and travel from wealthy benefactors only intensified the attention.
For a justice who seemed to find her footing on the bench immediately, peppering lawyers with questions and writing sharp dissents, she was circumspect in addressing the existing pressures facing the court.
After the revelations about Justice Thomas and others, the court announced an ethics code last fall, the first in its history. But Justice Jackson would say only that it was a "very interesting moment to be on the court," acknowledging that discussions about whether to strengthen the ethics code were "ongoing."
Indeed, the press was put under strict instruction to not ask about anything of interest:
Shortly before the interview, her publicist outlined the parameters of the interview, noting that Justice Jackson "will not be able to discuss past or present Supreme Court cases, the upcoming presidential election or any other political or electoral matters."
I bought a Kindle copy of the book so you don't have to. The Kindle version of the book has no actual index, which makes scanning through the contents tough. (Jackson obviously did not follow the wisdom of the Volokh crowds on this one.) If you search, there are exactly zero entries about Clarence Thomas and Samuel Alito. There is a brief mention of the Trump appointees:
Over the next four years, President Trump would have the opportunity to fill not one but three vacancies on the Court. First, he would select Tenth Circuit Judge Neil Gorsuch to replace Justice Scalia. Then he chose D.C. Circuit Judge Brett Kavanaugh to succeed Justice Anthony Kennedy, who retired in July 2018. And after Justice Ruth Bader Ginsburg passed away only weeks before the 2020 presidential election, he appointed Seventh Circuit Judge Amy Coney Barrett Barrett to fill her seat. The appointment of these new justices decisively shifted the ideological balance of the Court, since, as of O.T. 2021, only three of the nine justices—Sonia Sotomayor, Elena Kagan, and my old boss and mentor Stephen Breyer—regularly maintained and expressed a progressive perspective regarding the Constitution and, more broadly, the law.
She does write about some of her high-profile cases on the District Court, but I doubt that will be of much interest to SCOTUS watchers.
In the acknowledgments, she thanks Rosemarie Robotham as a "collaborator." Robotham's actual title is actually "literary collaborator."
First and foremost, I must give thanks where it is most profoundly due: to my intrepid and indefatigable collaborator, Rosemarie Robotham. If a day went by during the writing process that Rosemarie and I did not communicate in some fashion, I don't recall it. She was always there, from the start and throughout, gathering the various pieces of my life story; developing the framework that weaves them all together; assisting with my vision of a narrative that, like me, moves seamlessly between law and life; and, of course, employing her exquisite writing and storytelling capabilities. It is Rosemarie's mastery of prose that breathes life into this book's retelling of my lived experience. I did what I could. Still, it is a point of pride for me that, notwithstanding the demands of my day job, our little duo managed to do a lot. With Rosemarie serving as principal drafter, we conceptualized, wrote, edited, analyzed, reassessed, and revised the myriad strands of my personal and professional story, ultimately producing an intricate tapestry that recounts my journey while also providing information in a manner that reflects my authentic self. I cannot imagine how such a mammoth undertaking could have possibly come into being without such a brilliant, selfless, and dedicated partner. In another stroke of my great good fortune, I never had occasion to find out.
Generally, one would call the "principal drafter" the "author," or perhaps a "co-author." But in the publishing world, this sort of recognition does not appear on the cover, but on page 387. Again, I'll give kudos to Justice Gorsuch for giving Janie Nitze the full-billing of co-author.
Jackson's description of her "collaboration" is similar to the praise that Justice Sotomayor gave to her "collaborator" in My Beloved World:
Given the demands of my day job, this book would not have been possible without the collaboration of Zara Houshmand. Zara, a most talented writer herself, listened to my endless stories and those of my families and friends, and helped choose those that in retelling would paint the most authentic picture of my life experiences. Zara, you are an incredible person with a special ability to help others understand and express themselves better; I am deeply indebted to your assistance. One of the most profound treasures of this process has been the gift of your friendship, which will last a lifetime.
Jackson's book came out within two years of her confirmation. Speedy! But where is Justice Barrett's memoir? She was confirmed in November 2020, and the advance was announced in spring 2021, but her book is still in the works. Barrett tends to be one of the fastest justices to write opinions. What's the holdup? Does Barrett have a "collaborator"?
I'll close by beating my dead horse. Justices should not be able to bypass the limits on outside income by styling a $3 million payment as an "advance" of royalties. Congress should close this actual ethical loophole. At least Justice Jackson gave interviews in her publisher's office, and not at the Court. I find that practice less objectionable than using the trappings of One First Street to earn media.
