Will Sonia  Sotomayor and Elena Kagan elbow each other to greatness?

The law, lawyers, and the court.
Nov. 8 2010 4:34 PM

Supreme Court Sibling Rivalry

Will Sonia Sotomayor and Elena Kagan elbow each other to greatness?

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When Roosevelt appointed Frankfurter in1939, the new justice initially took the lead on the court. In one famous case, he convinced his liberal colleagues not to give Jehovah's Witnesses the right to opt out of a mandatory flag salute in school despite the sympathetic nature of their plight.  But when the court's holding against the Jehovah's Witnesses was used as an excuse for discrimination and violence against the small religious denomination, the other justices decided they'd been had. Black, who had joined Frankfurter's opinion, joined colleagues William O. Douglas, and Frank Murphy in announcing that they had been wrong. In a new case, the court reversed itself. 

Frankfurter was devastated at what he considered the abandonment of principle—and the loss of his own influence. He wrote an impassioned dissent in which he insisted that, as a Jew, he was not insensitive to prejudice but that he believed in judicial consistency. This unprecedentedly personal opinion only alienated Frankfurter's one-time allies still further.

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Black sensed the chance for leadership and began to work in earnest on his idea of originalism, spending his summers in original research about the meaning of the 14th Amendment. In 1947, he challenged Frankfurter directly by claiming that the amendment incorporated by reference all of the individual rights found in the Bill of Rights, thereby binding the states, not just the federal government. Frankfurter went ballistic. He called into his office Black's law clerk, Yale Law School graduate Louis Oberdorfer, and "threw the dissent across the desk … scattering the pages on the floor and dismissing Oberdorfer with the words, 'At Yale they call this scholarship?' " Back on the bench, Frankfurter dug in, insisting on judicial restraint even as his liberal colleagues expanded individual liberties—and going down in history as a great judicial conservative.

Sotomayor and Kagan may never grow as far apart as Frankfurter and Black, and one suspects they begin with a mutual respect that took their male predecessors a decade to achieve. But one lesson of Roosevelt's court—more relevant than ever—is that strong rivalries and personalities make great justices. No fewer than four of Roosevelt's appointees—Black, Douglas, Frankfurter, and Robert H. Jackson—became towering figures in judicial history. In recent years, we have had on the left and center polite justices who do not vie for leadership—and who do not produce comparably incandescent constitutional ideas or judicial opinions. As we are beginning to see, the new justices on the Roberts Court have the chance to do better.  The first move was Sotomayor's. Will Kagan go next?

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Noah Feldman is Bemis professor of law at Harvard. He is the author of Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices.

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