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Barrett’s Big Book Deal Called Bad Optics for Supreme Court

April 22, 2021, 6:00 AM

U.S. Supreme Court Justice Amy Coney Barrett’s reported $2 million book deal is drawing criticism from legal experts who say its size and timing create bad optics for a court that is already in the political crosshairs.

The advance, first reported by Politico, would be the largest ever for a Supreme Court justice, topping the $1.5 million Justice Clarence Thomas received for his 2007 memoir and the $1.175 million advance Justice Sonia Sotomayor got for hers, published in 2013.

Both books became best-sellers.

This book would emerge unusually soon for a justice who joined the court only six months ago and has just two majority opinions to her name. Barrett, 49, won Senate confirmation to succeed the late Justice Ruth Bader Ginsburg right before the election after a rushed and bitter fight. The third and final nominee of President Donald Trump, she didn’t receive any Democratic support.

Amy Coney Barrett
Photographer: Jim Lo Scalzo/EPA/Bloomberg

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Although federal law doesn’t preclude judges from being paid for writing books, such a large advance would raise appearance issues, says Charles Geyh, who specializes in judicial ethics as a professor at Indiana University’s Maurer School of Law.

“Judge Barrett may be confident that the book project will not detract from her focus on her judicial duties, and she may well be right,” Geyh said in an email. “But from the perspective of the average American who is grinding out a living at 40k a year, the optics of a judge -- who is paid $250,000 in tax dollars to do the people’s business as a justice -- moonlighting for $2 million on a book deal, are problematic.”

The scope of the book isn’t yet clear. Politico described it as covering the duty of judges to keep their personal views out of their rulings, but David Lat, founder of the Above the Law website, said on Twitter the book will also include personal information. The Associated Press reported the book will be published by Sentinel, a conservative imprint of Penguin Random House.

Barrett declined to comment through the Supreme Court’s public information office. Sentinel didn’t respond to requests for comment.

‘Perverse Incentives’

Another judicial ethics scholar, Stephen Gillers of New York University Law School, said he doesn’t see Barrett’s deal as problematic.

“The fact of the deal and the amount of the advance by themselves raise no judicial ethics problem, although she will have to recuse herself in cases in which the publisher is a party,” Gillers said in an email. “There are also limits on a judge or justice’s public statements, whether made in a speech or a book. We won’t know the contents for a while.”

But Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, said the book would create “perverse incentives” for Barrett, given that Sentinel will be trying to sell it to a conservative audience and recoup the advance.

“On the one hand, she will be marketing her book to conservative buyers. (Liberals will never forgive her for taking the Ginsburg seat),” Blackman wrote on Reason.com. “On the other hand, she will be deciding cases that could alienate conservative buyers.”

Barrett Flashes Independence as Top Court Backs Religious Rights

In addition to Thomas and Sotomayor, Justices Stephen Breyer and Neil Gorsuch have also written books while on the court. Their works focused on legal and civic issues rather than their personal stories.

Barrett’s appointment created a 6-3 conservative majority that could curb federal power, bolster gun rights and overturn the constitutional protections for abortion.

Her quick confirmation by the Republican-controlled Senate came four years after the GOP blocked any consideration of then-President Barack Obama’s selection of Merrick Garland to fill a vacancy left when Justice Antonin Scalia died. Garland is now President Joe Biden’s attorney general.

Some Democrats are now pushing to add seats to the court, and Biden has appointed a commission to explore that and other proposed changes.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

John Harney

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

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