Jurisprudence

Amy Coney Barrett Should Just Judge Without Bias Before Writing a Book on Judging Without Bias

It’s remarkably early in her term to receive this big of a book deal.

A woman and man smile.
Justice Amy Coney Barrett and her husband, Jesse Barrett, at the White House on Oct. 26. Alex Wong/Getty Images

On Monday, Politico reported that U.S. Supreme Court Justice Amy Coney Barrett has received a $2 million advance for her forthcoming book about how judges are not meant to bring their personal feelings into their rulings, according to three publishing industry sources. On Tuesday, Sentinel, the conservative imprint of Penguin Random House granting the contract (disclosure: Penguin is publishing my upcoming book), confirmed this news. The $2 million advance was—according to one source—“an eye-raising amount.” As Politico noted, it is likely the highest advance paid to a justice since major book deals scored by Clarence Thomas and Sandra Day O’Connor. (Sonia Sotomayor was paid a $1.175 million advance for her autobiographyMy Beloved World, which went on to become a bestseller.* At that time, Sotomayor was arguably the most prominent person of Latinx heritage in America).

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As a person who is still permitted to bring my personal feelings into my professional judgments, let me say this: The whole Barrett book deal seems more than a bit troll-y. Barrett has, after all, only been a judge for a little over three years. She’s been a Supreme Court justice for less than six months. If her new book is intended to be rooted in her vast personal experience as a federal jurist, it’s coming a few decades too soon. If it’s instead just intended to be aspirational and reassuring about how well she is going to do on the whole nonpartisanship–slash–open-mind thing, it’s also a few decades too soon. And if it’s a bunch of empty balls-and-strikes promises about how justices behave like robots, it’s science-fiction. Finally, and most worrisome, if it’s a triumphal infomercial from a parallel publishing universe by someone who wants to cash in on the conservative literary industrial complex? Well, that’s not doing a lot of work to instill public confidence in an independent judiciary just when the independent judiciary needs it most.

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The idea that a judge’s personal views should inflect on her legal work is a topic on which Barrett has opined in the past. Her first major publication, jointly authored with a Notre Dame professor when she was a student, suggested that observant Catholics cannot faithfully sit on death penalty cases, although the calculus was complicated: “To anticipate our conclusions just briefly, we believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving.” Now that she is a judge, she seems to be reversing positions.

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But really, the book deal goes beyond mere trolling. The notion of a justice who was rushed onto the court precisely because the president believed she would hand him the election if he needed her now holding forth on her mastery of open-mindedness is unseemly to the point of hinky. And as Ed Kilgore points out, “the reason her nomination was greeted with so many huzzahs from the Right is because it was assumed her ‘personal feelings’ as an observant Catholic and as a professor at a Catholic university would be brought to bear on abortion jurisprudence, making her potentially that fifth critical vote to overturn Roe v. Wade.” Just as the premature performance of Barrett as feminist heroine and heir to the RBG legacy was a deliberate subversion of reality, crafted to lay claim to a jurisprudential story that has no connection whatsoever to Barrett’s actual advocacy and jurisprudence, so too is this curated public enactment of judicial open-mindedness.

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It’s not just that spiking the football about one’s own pristine open mind is premature from someone who’s been a justice for less time than it took me to perfect a sourdough starter. It’s that, at least in my view, Supreme Court justices probably shouldn’t be getting multimillion-dollar cash advances to do anything at all. Recall that Justice Abe Fortas was brought down in part by allegations that he was unjustly enriching himself with a privately funded lecture series while he was a sitting judge. As Richard Painter, who was the chief White House ethics lawyer in the George W. Bush administration, put it in an email to me, “In 1969 Justice Fortas was pressured to resign from the Supreme Court over a $20,000 payment from a businessman who was later indicted. Too bad the businessman didn’t own a publishing house. By today’s standards Justice Fortas should have done a $2 million book deal instead.”

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The ethical line is surely a tricky one (another reason for enforceable ethics rules!). But while it’s true that other sitting justices have made money off book advances and sales, at least those big-ticket books were autobiographies, with Sonia Sotomayor and Clarence Thomas penning what quickly became bestsellers about their personal lives. Both Sotomayor and Thomas offered frank truths about fortitude and tragic personal loss and growth. Indeed, if anything links those two bestselling autobiographies, it was the candor offered by both jurists in explaining precisely how and why their personal lives and beliefs actually helped shape their jurisprudence.

But Barrett appears to want to sell a tale that is the precise opposite: Her book will presumably mirror the narrative she offered at her two confirmation hearings—that we should ignore her personal convictions, as stated publicly and in print, and her upbringing and beliefs because none of that has any bearing on her jurisprudence. Even Justices Stephen Breyer and Neil Gorsuch, who have published extensively on their approaches to the law, are honest about their own preferences and ideologies, and how that influences their work. Isn’t a book by a judge about why that judge’s personal history doesn’t matter at all just a Zen parable about one hand clapping?

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One feels for Barrett, who doubtless wants to throw off the grotesquerie of her superspreader Rose Garden ceremony and the persistent stink of Donald Trump, which makes it doubly difficult for her to appear judicial and unbiased. Too, the high court’s recent 180-degree reversal giving unprecedented new freedoms to certain faith groups that can only have resulted from her installation at the court must make it extra pinchy for someone who professes to have a respect for precedent and the judicial craft. Of course, the cure for public anxiety about one’s judicial bias isn’t to write a book about one’s lack of judicial bias. It’s to actually be unbiased. Extrajudicial professions that judges aren’t political unfailingly code as purely political, especially now. The irony that Breyer, Sotomayor, and Gorsuch have all frantically made the rounds in recent weeks to assure ordinary people that justices are not partisan political actors is the most nakedly political theater of the present moment. The fact that they are roused to make such naïve claims directly in response to a growing public furor over court reform is a fairly obvious tell that the justices are freaking out about court reform. Barrett’s use of big publishing to make that same obviously false argument is just as cynical, but hers also comes with a side of $2 million.

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The golden rule of good journalism is “show, don’t tell.” Perhaps before Barrett tells us about how pristine and impersonal her approach to judging really is, she should spend a few years quietly showing us how pristine and impersonal judging is done, then allowing us to form our own conclusions. It’s one thing to be gaslit about the frightening partisan turn at the Supreme Court by an artless Donald Trump, and it’s truly grotesque to be gaslit about the same thing by a sneering Mitch McConnell. But when it’s coming from inside the court itself? Yeah, that isn’t going to help at all.

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Correction, April 20, 2021: The original version of this post misstated that Sotomayor was paid a $33,000 advance for her autobiography. The advance was $1.175 million. 

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