Why Supreme Court justices should not be signing $2 million book deals

The news this week that Justice Amy Coney Barrett has signed a $2 million book deal should strike even firm capitalists such as myself as unseemly. Barrett has been on the Supreme Court for less than a year and is already cashing in for seven figures. I had 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. Our judges, especially Supreme Court justices, need to have strong judgment.

Barrett has done nothing wrong. The United States code limits the outside earned income of judges at 15 percent of their salary. Barrett has a salary of $265,600 as an associate justice of the Supreme Court, which means her outside earned income cannot exceed $39,750. I do not teach math for a living, but I do know that $2 million is a lot more than that. But with federal statutes littered with loopholes, book royalties somehow do not count as outside earned income for purposes of government ethics. They are taxed as income. This is why justices who are “marketable” suddenly become “authors” upon entering the great marble palace.

Among the current members of the Supreme Court with outside income, Justice Sonia Sotomayor tops the list, with more than $3 million in book advances for her memoir “My Beloved World” and a kids book. Justice Clarence Thomas received an advance of over $1 million for his memoir “My Grandfathers 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, and events that shaped his life and outlook.

The book from Barrett is said 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 just as fair to say that anyone not looking to cash in on the fame of one Supreme Court justice, in this case the conservative Sentinel brand under Penguin Random House, would not pay $2 million for a book about a proposition as obvious as that attributed to the legal beliefs of Barrett.

When would justices find time to write a substantial book? Logistics aside, lucrative book deals for rookie Supreme Court justices, or any judges for that matter, should raise a red flag for anyone concerned about political corruption. After all, scholars understand that even more worrisome than classic quid pro quo, like where the publisher pays a justice an advance in exchange for the justice casting votes protective of freedom of the press, is the use of public office for private purposes or gain even when legal. In light of the circumstances of Barrett as newly appointed to the Supreme Court without a single Senate Democrat voting to confirm her and seven children to send to college, a book deal is still a bad idea.

There is also the critical issue of the Constitution. It is the fundamental law that Barrett and her fellow Supreme Court justices have sworn an oath to uphold. The emoluments clause, which definitively rose from obscurity to prominence during the era of Donald Trump, forbids public servants from benefiting from their vital positions while holding office.

It is a moral problem to want to be president so that one can cash in and write a memoir after leaving office, but it would be unconstitutional for a sitting president to write his or her memoir in the White House and solicit bids from publishers. The Constitution provides Supreme Court justices with life tenured positions. They should not be receiving $2 million book advances unless and until they resign their seats if ever.

Scott Douglas Gerber is a law professor for Ohio Northern University and an associate scholar with the Political Theory Project at Brown University.