The Volokh Conspiracy
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Nearly Five Years Later, Justice Barrett's Memoir Has A Publication Date
"Listening to the Law: Reflections on the Court and Constitution"
Earlier this month, I queried where Justice Barrett's book was:
Speaking of Barrett's writings, where is her book? The lucrative deal was announced in April 2021 before she had written a significant majority opinion. Four years later, the book is not on the shelf, and I cannot find a publication date anywhere. By contrast, Justice Gorsuch has already co-authored two books during his tenure, and Justice Jackson published her memoir within two years of her confirmation. Justice Kavanaugh's book deal was announced in June 2024, with a publication date in 2025 or 2026. I know people get upset when I talk about Barrett's publication record as a professor, but her productivity on the bench is much the same. She has not given any speeches of note in years, and had only a light-hearted conversation at the Federalist Society National Lawyers Convention in 2023.
Well, Penguin Random House has finally announced some details. The title is "Listening to the Law: Reflections on the Court and Constitution." And it will be published on September 9, 2025, a few weeks before the Court's OT 2026 term will begin. (I'm sure Penguin was thrilled to have the recent negative press about ACB in advance of the big announcement).
The 304-page book has this description:
From Supreme Court Justice Amy Coney Barrett, a glimpse of her journey to the Court and an account of her approach to the Constitution
Since her confirmation hearing, Americans have peppered Justice Amy Coney Barrett with questions. How has she adjusted to the Court? What is it like to be a Supreme Court justice with school-age children? Do the justices get along? What does her normal day look like? How does the Court get its cases? How does it decide them? How does she decide?
In Listening to the Law, Justice Barrett answers these questions and more. She lays out her role (and daily life) as a justice, touching on everything from her deliberation process to dealing with media scrutiny. With the warmth and clarity that made her a popular law professor, she brings to life the making of the Constitution and explains her approach to interpreting its text. Whether sharing stories of clerking for Justice Scalia or walking readers through prominent cases, she invites readers to wrestle with originalism and to embrace the rich heritage of our Constitution.
There have generally been three genres of books by Supreme Court justices. The first is the memoir: the Justice's life story. For example, Justices Thomas and Sotomayor wrote compelling memoirs about their remarkable journeys from poverty to the highest Court in the land. These books get the biggest advances. Second, there are general books about the law: Justices Gorsuch and Breyer tend to write about their particular understandings about the law. These books get far-smaller advances. Third, there are canonical reference books that everyone needs. Here, Justice Scalia owns the genre: Making your Case and Reading Law and Precedent should be on every (virtual) bookshelf. And Scalia's books will be cited for generations to come.
Barrett's book seems to straddle the first two categories: it is part memoir, and part law. I'm not sure if this will work. The types of people who want to learn about her personal story are likely less interested in "wrestling" with originalism. And the types of people who want deeper insights into Barrett's jurisprudence likely already know about her personal story. Thomas and Sotomayor's memoirs were careful to not focus on current cases. Even Justice Jackson's new memoirs stops short of talking about the Supreme Court. By contrast, Justice Scalia's many books on the law did not even touch his personal life. Barrett's book is both fish and fowl.
The bigger problem is that this memoir will simply not be compelling. Barrett's life was largely one of privilege. She grew up in an affluent family, went to excellent private schools, clerked on the highest court on the land for distinguished jurists, was hired at a top law school, and made it to the circuit court without doing very much. That is not a particularly motivational story. I think it would be useful to hear about how she balanced her work responsibilities with having such a large family, including adopted children. On a personal level, I find Barrett's family quite admirable. But that might take a few pages to describe. The upbringing of Thomas and Sotomayor warrant an entire tome. There is a reason most people do not write autobiographies: there lives simply aren't that interesting.
What about the law? What will Barrett actually tell us about the Constitution?
With the warmth and clarity that made her a popular law professor, she brings to life the making of the Constitution and explains her approach to interpreting its text. Whether sharing stories of clerking for Justice Scalia or walking readers through prominent cases, she invites readers to wrestle with originalism and to embrace the rich heritage of our Constitution.
Here is how Politico described the book when it was launched in April 2021:
Justice Amy Coney Barrett, Trump's last pick for the Supreme Court, has also sold a book — garnering a $2 million advance for a tome about how judges are not supposed to bring their personal feelings into how they rule, according to three publishing industry sources.
I'm not sure if her views on "feelings" have changed.
What is Barrett's approach to interpreting text? Read her Biden v. Nebraska concurrence. It's not very interesting for a lay reader. What about originalism? She invites readers to "wrestle" with originalism because she too wrestles with originalism. She struggles with lawyers who do not (in her view) provide enough evidence to support an originalist ruling. Will the person who never signed a Supreme Court brief complain that actual Supreme Court advocates do not make their cases forcefully enough? Is this what people want to read about? Barrett will walk us through "prominent cases." I hope those sections are more enlightening then her actual opinions, which often leave me confused about what positions she actually takes. But if past is prologue, these teases will not pay off.
Even the title is instructive. Barrett is not talking about her visions for the law or how to change the law. She is just going to "listen" to it, and let things happen around her. This truly is emblematic of the Justice's approach. If Justice Breyer favored active liberty, Justice Barrett favors passive history.
Does any of this sound particularly useful to readers? Enough to justify a two million dollar advance? There can't be that many people still sipping from their dogma mugs. Barrett's standing today is not nearly what her standing was in 2020 before she decided any cases. Will conservative groups invite her to speak, and ask her about her shadow docket votes?
One of my long-running grievances is that these advances are gussied-up interest-free loans that are made without any real expectation of recouping losses. Rather, the publishers use the Justice as a marketing tool to improve the brand's standing. Let's not pretend otherwise. I am doubtful this book comes close to recouping the $2 million that was advanced--especially since it took nearly five years to produce, and who knows how many editorial hours were required. If I had to guess, the publisher kept nudging Justice Barrett to say something, anything, that would attract readers. And she pushed back. Hence, the massive delay.
Plus, Barrett's standing today is not nearly as high as her standing was in 2020 before she decided any cases. Will conservative groups invite her to speak, and ask her about her shadow docket votes? Will they ask her how she exhaled in disgust after talking to President Trump? Why did she deny cert in the Wisconsin transgender case? When I was writing my first book about the Obamacare litigation, I had a passage that was critical of the Tea Party. Randy Barnett in his infinite wisdom told me, "Who do you think is going to buy your book?" He was right, and I toned the passage. Writing a book is a commercial enterprise. Never forget this. And will liberal media welcome Justice Barrett? Can she go on The View like Justice Jackson did? Will some Broadway show write a role for her?
Finally, I have a long-standing tradition of judging the covers of books about the Constitution.
My reaction to this cover: bland, boring, and unoriginal. There are no colors, no graphics, no design elements. Just plain text. This almost looks like a placeholder that became the final version by default. It is as if the author could not decide what to put on the cover so she simply put nothing. That is on brand for Justice Barrett, the most taciturn and cautious of the Justices. At least based on the description, I think we can judge this book by its cover.
