Scrub the Supreme Court

The news this week that Justice Amy Coney Barrett has signed a $2 million book deal should strike even capitalists such as myself as unseemly. Barrett has been on the Supreme Court for less than a year and she is already cashing in for seven figures. I publicly supported her confirmation to replace the late Justice Ruth Bader Ginsburg but her decision to accept a $2 million advance for a book she could not have sold for $200 before her confirmation casts serious doubt on her judgment, and judges, especially Supreme Court justices, need good judgment.

Technically, Barrett has done nothing wrong. The United States Code limits a judge’s outside earned income at 15 percent of the judge’s salary. Barrett’s current salary as an associate justice of the Supreme Court is $265,600, which means her outside earned income cannot exceed $39,750. Although I do not teach math for a living, I do know that $2 million is a lot more than $39,750. But in a federal statutory schema littered with loopholes, book royalties inexplicably do not count as outside earned income for purposes of government ethics.

  The Hill

It's not inexplicable. It's lawmakers making sure they keep themselves in big money.

Among current members of the Supreme Court, Justice Sonia Sotomayor tops the list, with more than $3 million in book advances in 2010 and 2012 for her memoir “My Beloved World” and for a children’s book. Justice Clarence Thomas received a $1,500,000 advance for his 2007 memoir “My Grandfather’s Son.” Justice Neil Gorsuch was paid $225,000 for “A Republic, If You Can Keep It,” a book about the “essential aspects” of the Constitution, as well as events that shaped his life and outlook.

Justice Barrett’s book is projected to be about how judges should avoid letting their decisions be shaped by personal feelings. Although it is probably fair to say that almost everyone would agree with that proposition, it is equally fair to say that anyone not looking to cash in on a Supreme Court justice’s fame — in Barrett’s case, the publisher is the conservative Sentinel imprint of Penguin Random House — would not pay $2 million for a book about a proposition as obvious as that.

[...]

[S]cholars who write about corruption understand that even more worrisome than the classic quid pro quo, where the publisher for instance pays the justice a big advance in exchange for the justice casting votes strongly protective of freedom of the press, is the use of public office for private purposes or gain, even when legal.

[...]

There is also the issue of the Constitution itself, the fundamental law that Barrett and her colleagues on the Supreme Court have sworn an oath to uphold. The emoluments clause, which rose from obscurity to prominence during Donald Trump’s presidency, forbids public servants from benefiting from their positions while holding their offices.

...but hey, do what you want...you will anyway.