Budowsky: Should Justice Barrett recuse from Roe v. Wade?

Stories from credible news organizations report that Supreme Court Justice Amy Coney Barrett has inked a blockbuster book deal, worth an estimated advance of $2 million plus whatever she makes from the book destined to be a best-seller, about her views on whether personal faith and personal opinions should affect legal decisions of judges.

If correct, these reports raise profound and disturbing questions about the role of Supreme Court justices when they profit by millions of dollars in deals that involve expressions of views on matters that will be adjudicated by the court.

The stories suggest that Justice Barrett’s book will be published by Sentinel, a conservative publisher within the Penguin Random House family.

This book deal is reminiscent of the Trump presidency, when a president’s business became intertwined with his presidency, as Justice Barrett’s business now becomes intertwined with her tenure on the Supreme Court. It should inaugurate a thoughtful discussion about whether she should recuse herself from cases, including Roe v. Wade, where the link between her book content and judicial decisions would be greatest.

To be fair, Barrett is a highly skilled jurist with an impeccable reputation in the legal community. She is blessed to be part of a wonderful family and has views about faith that I deeply respect.

And in fairness to the Supreme Court, all conservative and liberal justices, including Barrett, conducted themselves honorably in cases involving the 2020 presidential election.

The problem with extravagantly compensated books by Supreme Court justices is that all publishers have financial interests in matters that will be considered by the court.

The problem with this book is that it involves core matters involving some of the most sensitive cases that will be considered by the court, at a time when many Americans already believe the court has been packed with 6-3 conservative majority to decide the very kind of cases this book will inevitably address, directly or indirectly.

There is a grave and probable danger that while the court needs to cement its credibility for fair and impartial decisions, the court will make controversial and divisive decisions voted on by a new justice appointed in the closing days of the last president and Congress, who would have profited by millions of dollars from a lucrative and best-selling book that opines about the core values behind the most controversial and divisive decisions.

And the problem with the reported subject of this book, the interaction of personal views with judicial decisions, is that it strikes at the heart of a significant number of historically important and politically and emotionally super-charged cases including, but not limited to, Roe v. Wade.

No matter how Barrett votes on Roe v. Wade and other super-charged cases, there will be heated public discussion, and widespread public cynicism, about the connection between the money she makes from the book and the decisions she renders on the court.

American politics and government desperately need a new, credible code of ethics for all three branches of government. Neither elected presidents nor elected legislators nor unelected Supreme Court justices should be tainted by the appearance or reality of money buying, influencing or being intertwined with decisions of policy, legislation or law.

With presidents and legislators there is a remedy of voters approving or disapproving these matters on Election Day. With unelected life-tenured judges and justices the most viable protection would be their recusal from cases that could be tainted by the perception or reality of money having even the slightest influence on critical decisions.

I do not suggest at this time that Barrett recuse herself from Roe v. Wade or other cases involving the matters directly or indirectly discussed in her book.

I do suspect this book will, and certainly should, begin a profound discussion within the Supreme Court and across the nation about the troubling and disturbing issues raised by this book, on these matters, at this time in our history.

Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the House of Representatives.