Can U.S. Supreme Court Justices Publish Books and Receive Advances/Royalties?

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An interesting question was asked in the comments to PG’s previous post about Penguin Random House publishing a book by Associate Supreme Court Justice Amy Coney Barrett.

Specifically, the question was whether such a commercial arrangement violated what is commonly known as The Emoluments Clause in the Constitution of the United States. Here’s how that clause reads:

Article I  Legislative Branch

• Clause 8 Titles of Nobility and Foreign Emoluments
• No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

From Constitution Annotated:

Article I, Section 9, Clause 8:

This provision encompasses two distinct commands. The first half, sometimes called the federal Title of Nobility Clause,1 limits the power of the United States by prohibiting it from granting any title of Nobility. The second half, often referred to as the Foreign Emoluments Clause, limits the actions of certain federal officers by prohibiting them from accepting any present, Emolument, Office, or Title, of any kind whatever from a foreign state, without the consent of Congress.

For most of their history, neither the Title of Nobility Clause nor the Foreign Emoluments Clause have been much discussed or substantively examined by the courts. The meaning and scope of the Foreign Emoluments Clause have been examined in opinions from the Department of Justice’s Office of Legal Counsel and the Comptroller General of the United States concerning the obligations of federal officers with respect to gifts, salaries, awards, and other potential emoluments from foreign sources. During the administration of President Donald Trump, the lower federal courts for the first time issued substantive—but often conflicting—decisions interpreting the Foreign Emoluments Clause.

. . . .

The Foreign Emoluments Clause’s basic purpose is to prevent corruption and limit foreign influence on federal officers. At the Constitutional Convention, Charles Pinckney of South Carolina introduced the language that became the Foreign Emoluments Clause based on the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence.1 The Convention approved the Clause unanimously without noted debate.

During the ratification debates, Edmund Randolph of Virginia, a key figure at the Convention, explained that the Foreign Emoluments Clause was intended to prevent corruption by prohibit[ing] any one in office from receiving or holding any emoluments from foreign states.

The Foreign Emoluments Clause reflected the Framers’ experience with the then-customary European practice of giving gifts to foreign diplomats.

Following the example of the Dutch Republic, which prohibited its ministers from receiving foreign gifts in 1651, the Articles of Confederation provided: any person holding any office of profit or trust under the United States, or any of them shall not accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state. The Foreign Emoluments Clause largely tracks this language from the Articles, although there are some differences.

During the Articles period, American diplomats struggled with how to balance their legal obligations and desire to avoid the appearance of corruption, against prevailing European norms and the diplomats’ wish to not offend their host country.

A well-known example from this period, which appears to have influenced the Framers of the Emoluments Clause, involved the King of France’s gift of an opulent snuff box to Benjamin Franklin. Concerned that receipt of this gift would be perceived as corrupting and violate the Articles of Confederation, Franklin sought (and received) congressional approval to keep the gift.

Following this precedent, the Foreign Emoluments Clause prohibits federal officers from accepting foreign presents, offices, titles, or emoluments, unless Congress consents.

The Foreign Emoluments Clause thus provides a role for Congress in determining the propriety of foreign emoluments. Under this authority, Congress has in the past provided consent to the receipt of particular presents, emoluments, and decorations through public or private bills, or by enacting general rules governing the receipt of gifts by federal officers from foreign governments. For example, in 1966, Congress enacted the Foreign Gifts and Decorations Act, which provided general congressional consent for foreign gifts of minimal value, as well as conditional authorization for acceptance of gifts on behalf of the United States in some cases.

Several Presidents in the nineteenth century—such as Andrew Jackson, Martin Van Buren, John Tyler, and Benjamin Harrison—notified Congress of foreign presents they received, and either placed the gifts at Congress’s disposal or obtained consent for their acceptance. Other nineteenth century Presidents treated presents they received as gifts to the United States, rather than as personal gifts. Thus, in one instance, President Lincoln accepted a foreign gift on behalf of the United States and then deposited it with the Department of State. In the twentieth century, some Presidents sought the advice of the Department of Justice’s Office of Legal Counsel on whether acceptance of particular honors or benefits would violate the Emoluments Clauses.

Link to the rest at Constitution Annotated

Here’s what SCOTUSBLOG says on the topic with respect to Supreme Court Justices writing books for publication:

In December 1833, the American Monthly Review commented on a newly published book by Joseph Story. By that time the fifty-four-year-old Supreme Court Justice had written or edited some twelve books. These works included a treatise on bills of exchange, a treatise on pleading, yet another on pleading and assumpsit, commentaries on the law of bailments, a biography, and even a book of poetry titled The Power of Solitude: A Poem in Two Parts. And he had a new work, a three-volume set with a long title: Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Of this book, the American Monthly reviewer wrote:

That review was among the first of many such laudatory reviews of a treatise that went on to become canonical in the history of American constitutional law. Before he died in 1845, Joseph Story published another twenty-one books after his Commentaries.

Story’s literary accomplishments notwithstanding, he was not the most prolific – that honor goes to Justice William O. Douglas. This son of a Scottish Presbyterian minister, and former law professor and SEC chairman, wrote fifty-one books on a wide variety of topics ranging from foreign policy to psychiatry, from corporate reorganization to environmentalism, and from stare decisis to manifest destiny.

If nothing else, Douglas was prolific. In 1958 alone, five works were published under his name, and then in 1960 and 1961 he published four different books for each of those respective years.

And then there was Justice Joseph Story, who had thirty-three books under his byline, followed by William Howard Taft, the onetime President and later Chief Justice, who published some thirty-one books.

Link to the rest at SCOTUSBLOG

PG suggests that the precedent set by Justices Joseph Story, William O. Douglas and William Howard Taft likely covers any legal or ethical issues that might apply to Justice Amy Coney Barrett when she agrees with a commercial publisher to publish a book and receive the sorts of compensation that famous people and celebrities who are not Supreme Court Justices receive.