Daniel Epps (Washington University in St. Louis – School of Law) has posted Reading the Justices’ Books on SSRN. Here is the abstract:
This Essay reflects on the phenomenon of books by sitting Supreme Court justices.
Part I begins by putting the phenomenon of book-writing by Supreme Court Justices in context. The practice is far from new; sitting Justices have published autobiographies, histories, treatises, tomes on constitutional interpretation, and even children’s books since the dawn of the Republic. Even flashpoints of criticism today, such as the Justices’ profit motives, have ancient antecedents. Considering the Justices’ books from a long view, Part I contends that we should largely embrace the phenomenon. The Court is a tremendously opaque institution, and it is a good thing if the books provide the public with insight into how the unelected Justices govern them—even if there is no guarantee the public will like what it learns.
Part II then considers how we should evaluate the Justices’ books. I contend that, from a long-run perspective, we should not expect the books to be great or enduring on their own terms. Instead, the books’ value is in terms of what they tell us about the Court at any given moment in history. How do the Justices, through their books, serve as “evidence of witnesses in spite of themselves”?
Part III then applies that perspective to the current crop of Justice-authored books. Perhaps unsurprisingly, the books taken together only reinforce the deep political, ideological, and legal polarization that today threatens the Court’s legitimacy. We see a rudderless left on the Court, concerned with identity and celebrity but not well positioned to develop a rallying point for a liberal constitutional vision in the way that originalism has powered the right for a generation. Across the ideological divide, we see an ascendant right struggling with a choice about how to exercise the vast power its supermajority now wields: a rigid and technical legal science or a robust and flexible approach that frees up conservatives to pursue their desired substantive ends. Given that the latter approach appears likely to win that contest, those who worry that the Court’s profound polarization threatens the institution’s legitimacy—and, ultimately, the rule of law—should remain concerned.
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