Justice Jackson’s Book Deal Greeted Very Differently Than Justice Barrett’s

In April 2021, Justice Amy Coney Barrett inked a book deal with Penguin Random House. The publisher confirmed that it had agreed to pay her a $2 million advance, of which $425,000 was (per her public financial disclosures in June 2022) paid in 2021. The usual suspects acted as if the sky was falling. Ann Marimow and Emma Brown of the Washington Post wrote, in a complete non sequitur, that Barrett’s financial disclosures “come at a tense moment for the court after the leak of a draft majority opinion, written by Justice Samuel A. Alito Jr., that would overturn the long-standing constitutional right to obtain an abortion,” and implied that Justice Barrett was using a loophole in ethics rules because “Federal ethics rules limit justices to ‘outside earned income’ of no more than about $30,000 per year, . . . [b]ut book-writing payments do not count as ‘outside earned income,’ allowing justices to strike lucrative contracts with publishers.” Dahlia Lithwick of Slate thundered that this was unethical, and that Barrett hadn’t been on the Court long enough to write a book:

Supreme Court justices probably shouldn’t be getting multimillion-dollar cash advances to do anything at all….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.” . . . 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. . . .

Timothy O’Brien wrote in the Chicago Tribune that the book deal reflected the “Supreme Court’s ethics problems,” noting that “A lot of hand-wringing has accompanied Supreme Court Justice Amy Coney Barrett’s $2 million book deal.” Mark Joseph Stern of Slate claimed that “Barrett has done little to dispel the fumes of partisanship and illegitimacy that poisoned her appointment. Her attempts at public relations have backfired. She inked a lucrative book deal for her memoirs before she had produced a scintilla of a public thought,” a preposterous argument I debunked at the time. Even Lithwick and the Post had to grudgingly acknowledge that justices writing books and making a lot of money from them was not remotely unusual; as even Lithwick had to concede, the topic of Barrett’s book (the duty of judges to follow the law rather than rule from their personal views) was closely related to subjects upon which she had written at length as an academic.

Then, there was an open letter signed by hundreds of Penguin employees demanding that it cancel the deal over her vote in Dobbs — implying that the publisher should make the payment of book advances to judges contingent upon how they vote. The publisher refused to back down.

Well, yesterday, it was reported by the Associated Press that new Justice Ketanji Brown Jackson has inked her own autobiographical book deal before she has completed her first term on the Court. The book will be entitled Lovely One, a translation of her first name. No financial details have been disclosed. Don’t hold your breath waiting for condemnations from the likes of Lithwick or Stern, or for efforts to get the book deal rescinded, or for suggestions of ethical impropriety. CBS says simply that “interest in her makes it likely her advance is at least comparable to the 7-figure deals negotiated in the past for memoirs by Sotomayor and Justice Clarence Thomas.” Marimow’s report in the Washington Post is much more celebratory, quoting the publisher’s press release at great length. Her article on Barrett’s book deal was entitled “Amy Coney Barrett received $425,000 book payment, records show.” On Jackson’s deal: “Supreme Court Justice Ketanji Brown Jackson is writing a memoir.”