When Half the Supreme Court Has Book Deals with the Same Publisher

from the seems-like-an-issue dept

When five Supreme Court Justices recuse themselves from a single case, that’s news. When they do it because most of them have book deals with the same publisher, that’s potentially a problem.

Last week’s Monday order list included this unusual admission: five Justices recused from Baker v. Coates, a silly plagiarism case involving Ta-Nehisi Coates (that both lower courts dismissed). The reason? Four of them — Sotomayor, Gorsuch, Barrett, and Jackson — all have books published by Penguin RandomHouse, which is owned by Bertelsmann, a named plaintiff in the case. (Alito also recused for unknown reasons.)

At first glance, this looks like progress. Ethics watchdogs have long argued that Justices should recuse when they have financial relationships with parties before the Court. And these Justices finally did, leading the watchdogs like Fix the Court to celebrate.

And, given the conflict scandals plaguing the Court over the last few years, it sure sounds like progress. But it makes me wonder: does this mean that no case involving Penguin RandomHouse can ever be heard at the Supreme Court?

Because if so, that sure seems like a problem.

Not only is it a publishing giant, but it’s also involved in some fairly consequential lawsuits that have a high likelihood of reaching the Supreme Court.

For example, it’s one of the publishers suing the Internet Archive claiming copyright infringement. And while I don’t think it’s actually sued any AI companies yet, it’s made it clear it does not want its books used for training, so it may only be a matter of time. It has also sued over some state book bans. These are all pretty hot topics, and you could see some of these cases reaching the Supreme Court at some point.

But, do these recusals mean… they can’t? That would certainly put things in a somewhat awkward position, where the appeals courts’ rulings would carry a lot more weight. But it gets pretty odd if there’s then a circuit split between different appeals courts on an issue involving the company.

In some ways, this exposes the deeper farce of current Supreme Court ethics. We’re supposed to celebrate when Justices finally follow basic conflict-of-interest rules, but those same rules might render the Court unable to hear major cases involving one of the world’s largest media companies.

The problem isn’t just Penguin RandomHouse. It’s that we’ve created a system where sitting Justices routinely may have significant financial relationships with entities that appear before the Court. Book deals, speaking fees, luxury trips—the conflicts are everywhere, and historically (as we’ve learned) some Justices just ignored them.

Thomas famously never recused despite his wife’s political activism and his own undisclosed financial relationships. Scalia took hunting trips with litigants. Alito went on fishing trips with those who had business before the Court. The whole system depends on Justices policing themselves, which they mostly haven’t done.

So when they finally do recuse — as happened here — it’s good to see a bit of ethics creep in. But, it creates a new problem: what happens when enough Justices are conflicted that the Court can’t function?

Anyway, this brings me back, yet again, to my big idea for fixing the Supreme Court, which is to load it up with around 100 Justices, who can hear cases in groups of nine. Make it so that no individual Justice matters that much, and you deal with conflicts by keeping those conflicted off of any particular case. And, at 100 Justices, it’s not like just adding a few Justices where it can be seen as packing the Court in one direction (hell set up some rules to try to keep some kind of balance).

With 100 Justices, you could have entire panels recuse without losing the ability to hear important cases. You’d also dilute the power of individual Justices, making their book deals and speaking fees less valuable to potential influence-peddlers.

Until then, we’re stuck with a Court that either ignores obvious conflicts or becomes paralyzed when it finally acknowledges them. Neither option inspires much confidence in the institution that’s supposed to be the final arbiter of our most important legal questions.

Filed Under: amy coney barrett, clarence thomas, conflicts, ethics, ketanji brown jackson, neil gorsuch, recusals, samuel alito, sonia sotomayor, supreme court
Companies: penguin random house