A tale of two justices and their children’s books

The increasing trend of United States Supreme Court justices authoring children's books and memoirs has sparked a critical debate among legal professionals and the public. While proponents highlight the educational and inspirational value of such works, concerns persist regarding judicial ethics, the appearance of impropriety, and the potential for commercial exploitation of judicial office. This article delves into the relevant ethical frameworks governing federal judges, including the recently adopted Code of Conduct for Justices of the Supreme Court, and analyzes the tension between permissible extrajudicial activities and the imperative to maintain public confidence in the judiciary's impartiality and integrity. It examines the financial incentives involved and the implications for the perception of the Court.

In a notable development within the highest echelons of the American judiciary, several Supreme Court justices have embraced the role of children's book authors, adding a unique dimension to their public personas. Justice Neil Gorsuch's "Heroes of 1776," co-written with his former law clerk, is the latest in a growing collection that includes multiple titles by Justice Sonia Sotomayor and a young-adult version of Justice Ketanji Brown Jackson's memoir. This phenomenon, which traces back over two decades to Justice Sandra Day O’Connor’s "Chico," has garnered attention not only for its novelty but also for the significant ethical questions it raises.

While these literary endeavors are often framed as efforts to promote civic education or inspire young readers, they simultaneously ignite a robust discussion about the boundaries of judicial conduct. The substantial financial advances and royalties associated with these publications, coupled with the inherent celebrity of Supreme Court justices, create a perceived tension between a justice's commitment to impartial public service and the pursuit of personal branding or commercial gain. This article will explore the ethical landscape governing federal judges, particularly Supreme Court justices, to analyze the implications of this trend on judicial integrity and public trust.

The ethical conduct of federal judges in the United States is primarily guided by several statutory provisions and codes. Historically, the Code of Conduct for United States Judges, adopted by the Judicial Conference of the United States, has provided ethical canons for federal judges, emphasizing the avoidance of impropriety and the appearance of impropriety in all activities. However, the Supreme Court justices traditionally considered themselves bound by these principles but not directly by the Code itself, leading to calls for greater transparency and formalization of their ethical obligations.

In response to increasing scrutiny, the Supreme Court formally adopted its own Code of Conduct for Justices of the Supreme Court of the United States on November 13, 2023. This Code largely codifies existing ethical principles and practices, including a directive that a Justice "should avoid impropriety and the appearance of impropriety in all activities" (Canon 2). It also permits Justices to engage in extrajudicial activities such as speaking, writing, lecturing, and teaching on both law-related and non-legal subjects, provided these activities do not detract from the dignity of the office, interfere with official duties, reflect adversely on impartiality, or lead to frequent disqualification (Canon 4).

Further statutory frameworks include the Ethics in Government Act of 1978, which mandates annual financial disclosure reports for federal officials, including Supreme Court justices, detailing sources of income, gifts, and liabilities. The Ethics Reform Act of 1989 prohibits federal officials from accepting gifts from individuals seeking official action or whose interests may be substantially affected by their official duties. Crucially, while federal judges are generally subject to a cap on outside earned income (15% of Level II of the Executive Schedule), book royalties are explicitly exempt from this limitation, allowing justices to earn substantial sums from their literary works without restriction. Additionally, 28 U.S. Code § 455 requires any justice, judge, or magistrate judge to disqualify themselves in any proceeding where their impartiality might reasonably be questioned or where they have a financial interest in a party or the subject matter.

The phenomenon of Supreme Court justices publishing children's books and other literary works, while seemingly innocuous, presents a complex ethical dilemma rooted in the principle of avoiding the "appearance of impropriety." Canon 2 of the Code of Conduct for Justices explicitly states that a Justice should avoid such appearances, defining them as circumstances where reasonable minds would conclude that the Justice's honesty, integrity, impartiality, temperament, or fitness to serve is impaired. Critics argue that accepting multimillion-dollar advances and royalties for books, particularly those that capitalize on a justice's public profile, can create a perception that the judicial office is being leveraged for personal financial gain.

One significant concern revolves around the use of judicial prestige. Canon 2B of the Code for Justices states that a Justice should not "knowingly lend the prestige of the judicial office to advance the private interests of the Justice or others." While writing a book is a permissible extrajudicial activity, the marketing and promotion of these books, especially when involving court staff or official appearances, can blur the lines between personal and official capacities. Justice Sotomayor, for instance, has faced criticism for her staff's involvement in promoting her books at public events. This raises questions about whether the inherent celebrity of a justice is being exploited in a manner that undermines the dignity and impartiality of the Court.

Furthermore, the financial aspect is a key point of contention. Unlike other forms of outside earned income, book royalties are exempt from the 15% cap applicable to other federal judges. This exemption allows justices to receive substantial advances and royalties, with some justices reportedly earning millions. While some argue this provides a valuable incentive for justices, particularly those without significant personal wealth, to remain on the bench rather than seeking more lucrative private sector opportunities, others view it as an avenue for undue enrichment that can erode public trust. The potential for conflicts of interest also exists, as a justice might need to recuse themselves from cases involving their publisher, as Justice Breyer did in cases involving Penguin Random House.

Conversely, proponents of justices writing books emphasize the educational and civic engagement benefits. Justice Gorsuch's stated aim for his children's book is to promote "civic education to our children," aligning with Canon 4's encouragement for judges to engage in activities that improve the law and public understanding of the justice system. Such works can demystify the judiciary, inspire young people, and offer valuable insights into the lives and philosophies of the nation's highest legal figures. The challenge lies in balancing these laudable goals with the imperative to safeguard the judiciary's reputation for independence and impartiality, particularly in an era of heightened political polarization and scrutiny of judicial ethics. The Code for Justices, while a significant step, leaves much to the individual justice's discretion in interpreting the broad standard of "appearance of impropriety," which remains a subjective and often debated concept.

The trend of Supreme Court justices authoring children's books and other literary works encapsulates a fundamental tension in modern judicial ethics: the desire for public engagement and education versus the strictures of impartiality and the avoidance of impropriety. While the recently adopted Code of Conduct for Justices of the Supreme Court provides a formal framework, the interpretation and application of its broad principles, particularly concerning the appearance of impropriety and the use of judicial prestige, remain subject to ongoing debate and public scrutiny.

For legal practitioners, this evolving landscape of judicial ethics underscores the importance of public perception in maintaining the legitimacy of the judiciary. While direct legal challenges based on a justice's book deals are unlikely, the broader discourse impacts public confidence in the courts, which is vital for the rule of law. Attorneys should remain attuned to these discussions, as they contribute to the ongoing conversation about judicial accountability and transparency. Moving forward, the judiciary will likely face continued calls for clearer, more enforceable guidelines regarding extrajudicial income and activities, as well as enhanced transparency measures, to ensure that the pursuit of literary endeavors does not inadvertently undermine the bedrock principles of an independent and impartial justice system.