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It was around the time the justices crossed the $10 million threshold in book earnings that I started to change my mind about the whole enterprise.
But let's back up a bit. By statute, the chief justice has an annual salary of $320,700 and the associate justices $306,600. On top of that, ethics rules limit them from making more than about $35,000 annually in outside income, which generally comes from teaching – though there are several exceptions. These primarily include real estate, investments, inheritance, and writing.
The real estate exception does have ethical implications; a person could curry favor with a justice by buying their home at an exorbitant price. That said, though the home sales of Justices Neil Gorsuch and Amy Coney Barrett made news since both purchasers were attorneys who could theoretically have business before the court, neither was unethical: Gorsuch broke even on his sale, and Barrett made money largely due to market conditions.
Then there’s the investment income exception. But the vast majority of justices don’t own individual stock, and those that do own only a few (Chief Justice John Roberts holds shares in two companies) or have shares they inherited from a death in the family (i.e., nearly all of Justice Samuel Alito’s portfolio since 2012).
There are also the freebies, which don’t count as income but are things the justices should be paying for since they’re public servants. The most obvious example in this category is the free luxury travel that Justice Clarence Thomas has received over the years from billionaires with strong views on the outcomes of certain cases at the court. But even if you tally all the justices’ gifts – and I have – the total won’t reach into eight figures like book revenue.
Writing books has thus proven to be the justices’ most lucrative side job. And, as such, it deserves the type of scrutiny that court-watchers to this point have primarily been saving for gifts and travel. Thomas has earned $1.5 million from his memoir, My Grandfather’s Son. Justice Sonia Sotomayor has earned $4.06 million from her memoir, My Beloved World, and a host of kids’ books. Gorsuch has earned $1.7 million from three books on the law, as well as a recent children’s book. Justice Brett Kavanaugh has reported earning $340,000 (from an advance likely more sizeable) for his untitled memoir. Barrett has earned $1.27 million (of a reported $2 million advance) for her memoir, Listening to the Law. And Justice Ketanji Brown Jackson has earned $4.14 million for her memoir, Lovely One. (Roberts and Justice Elena Kagan haven’t written any books while on the court, and Alito’s advance for his fall 2026 book, So Ordered, has yet to be announced.) The total now stands at $13 million and counting.
So what’s the problem here? Better books than something else, right?
First, let’s say the quiet part out loud: None of these books would have yielded such colossal paydays were it not for the positions held by their authors. (Members of Congress also write books, but unlike the justices, they need money to run for reelection, and their paydays rarely advance beyond six figures.)
Along these lines, it’s not just anyone who’s printing the justices’ book nowadays, as it’s becoming common for partisan outfits to do the publishing – which is itself troubling for anyone who wants to keep partisan politics out of the judiciary. Kavanaugh’s memoir was first sold to Regnery, a conservative publisher, and when Regnery was sold, the project was moved to Center Street, a conservative imprint of Hachette. Barrett’s memoir was published by Sentinel, the conservative imprint of Penguin Random House.
Then there’s the partisan nature of the justices’ book tours – again, not a good look for a branch working so hard to convince the public that the institution does not comprise “a bunch of partisan hacks.” Justice-authors enjoy a bevy of free travel – from the U.K. to California to Puerto Rico and dozens upon dozens of locales in between – to speak at universities and presidential libraries and other civic institutions, food, lodging and travel expenses included, that just happen to align with their partisan priors so as not to elicit even a hint of discomfort for the justice.
On the more speculative front, lucrative book contracts could be used as incentives to keep the justices happy – and in their seats. Recall that according to ProPublica, Thomas told Rep. Cliff Stearns (R-Fla.) in 2000 that if Congress didn’t raise his and his colleagues’ pay, “‘one or more justices will leave soon’ — maybe in the next year.” Three years later, Thomas inked a $1.5 million deal to write his memoir. He claims he started writing after his younger brother died in 2001, but it’s not hard to see how a seven-figure book deal could be dangled as an incentive for a justice seeking to boost their financial status while remaining on the bench.
Even if there’s no actual impropriety in what I’ve described above, there is the appearance of impropriety once “Supreme Court justice” and “million-dollar payday” are found in the same sentence. The public does not want to see government employees become millionaires during their time in government, whether via the market, as landlords or, I’d argue, as authors. Chasing money as a public servant is the antithesis of that service.
Here’s my thought on how to prevent all this: the justices should be required to place their earnings from writing books in accounts they are not permitted to access until after they retire from the court.
I would include three exceptions: one for purchasing a home (primary, not vacation); another in the event of a family tragedy, like a spouse contracting a disease requiring expensive treatment; and another for children’s education expenses. Each would have to be certified by a SCOTUS ethics officer, a position that I and others are trying to convince the court to create. The rule should apply to the writings of lower court judges, as well, with certification from the Judicial Conference Codes of Conduct Committee, though at this point, not a single lower court judge, as far as I can tell, has become a millionaire from their writing.
There’s another benefit: If this policy were in effect today, judges and justices might be more willing to retire sooner than in their fourth decade of service, which is now all too common. According to Pulitzer Prize-winning historian David Garrow, in every generation since America’s founding a justice (if not two or three) has suffered from cognitive decline, making them less capable or incapable of doing the work while refusing to relinquish their seat. Justices nowadays hang on to their jobs until a president with whom they tend to agree sits in the Oval Office. That wait can be yearslong, while the unfortunate realities of aging start catching up with even the sharpest of minds. So statutorily mandating incentives for the justices to step aside before the stroke of cognitive midnight would be wise.
Under this arrangement, justices would still earn their $300,000-plus salaries, whatever they can make from investments and up to about $35,000 from teaching each year. Yes, the D.C. area is expensive. But everyone who becomes a justice nowadays has spent a fair amount of time on the bench prior to their appointment; district judges’ $249,900 salaries and circuit judges’ $264,900 salaries are not vows of poverty; neither, of course, are the Big Law salaries that many potential SCOTUS short-listers have squirreled away.
Public servants, including the justices, should not be chasing major paydays while still toiling away at their day jobs. A book written by Barrett or Jackson, begun within minutes of their high court confirmation, would be a great deal more interesting in 20 years when they can include more SCOTUS anecdotes.
Thomas will still have been like a son to his grandfather after his retirement. Jackson will still be lovely to her family when she leaves the bench.
And Barrett will have listened to a lot more law decades from now when she’s a senior justice. I can’t wait to hear what she has to say then. I’d bet it’ll be something worth paying a great deal for.
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[ H/T SCOTUSblog ]
