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?

Sotomayor and Kagan on screen. Click image to expand.
Sonia Sotomayor and Elena Kagan

On Oct. 18, just after beginning her sophomore year on the Supreme Court, Justice Sonia Sotomayor made an extremely surprising move. Earlier that day, in a routine, one-line order, her eight colleagues had denied a handwritten petition for review filed by an obscure, HIV-positive Louisiana inmate named Anthony Pitre. His petition was one of nearly 8,000 the court will likely deny this year. Acting alone, Sotomayor said the court should take the case—and forcefully argued that Pitre should prevail on his claim, which the lower courts had denied, that the state bureau of corrections could not force him to do hard labor after he had voluntarily stopped taking his medication.

To some court watchers, Sotomayor's highly unusual dissent from the denial of Pitre's petition was puzzling. Why had she chosen this case, which no other judge along the line had taken seriously or discussed in any detail, to disagree publicly with her colleagues? Conservatives hinted darkly at a judicial activist in the making.  Liberals smiled at one  another in barely concealed glee. All wondered whether they were witnessing the birth of the next Thurgood Marshall, a justice who would flout procedural custom to do justice for the oppressed.

In fact, Justice Sotomayor was taking a characteristic step for new justices: shaping her judicial identity through a striking opinion that carries meaning beyond its basic facts.  And she was doing it at a particularly significant moment: when Elena Kagan, Barack Obama's second nominee, was just starting her first term on the court. Kagan actually served as a clerk for Thurgood Marshall, the paragon of liberal activism.  For Sotomayor to gesture toward Marshall's legacy constitutes an implicit invitation to Kagan to join her. But it also stakes out a distinctive position in relation to Kagan. If her new colleague opts for the center, Sotomayor may be hinting, she will take on the role of conscience of the court.

Sotomayor and Kagan are fated to define their judicial careers in relation to each other. In a sense, they have been shadowing each other for 30 years. Each woman is a strong-willed New Yorker with an identifiable ethnic identity, and each went to Princeton University in the first years that the college began to admit women. Faced with this sometimes hostile environment, each performed brilliantly. After Yale Law School, Sotomayor became a prosecutor and from then on was on the fast track to becoming the first Latina on the Supreme Court. Kagan took the academic route to the bench, with a stop at the Clinton White House. Her deanship at Harvard, where I was a member of her faculty, was understood as a step to high office. Both Sotomayor and Kagan were on the short list for nomination when David Souter retired

Once a new appointee has fulfilled every lawyer's ambition by making it onto the court, the next step is to become a great justice.  In an insular group of highly intelligent people sentenced to work together for life, the question of leadership can be vexing. Sometimes, a justice makes his case for leadership by defining himself in subtle opposition from a colleague. The potential jockeying for position between Sotomayor and Kagan is foreshadowed by the relationship between two of the most interesting justices of the 20th century, Felix Frankfurter and Hugo Black. Their intense rivalry pushed each to heights of constitutional greatness.

When Frankfurter joined the court, he was the country's most prominent liberal lawyer, a Harvard law professor who had proclaimed the innocence of Sacco and Vanzetti and become an influential adviser to FDR. While in the academy, he pioneered the doctrine of judicial restraint, originally a liberal constitutional ideal established in opposition to the expansion of the rights of employers and businesses by a conservative activist court. With his dozens of articles and books about the Supreme Court, Frankfurter had the best claim to preeminence among his liberal allies—and he knew it.

Black, by contrast, was a former Ku Klux Klan member with a weak formal legal education. As a senator, he spent hours reading the classics and trying to educate himself; still, when he joined the court, he was woefully unprepared. His first opinion was a solo dissent arguing bravely that corporations did not have constitutional rights, since they were not "persons" under the meaning of the 14th Amendment. Black's dissent contained, in embryo, his radical and new theory that the Constitution must be interpreted according to its original meaning—the theory now called "originalism" and associated with conservative justices like Clarence Thomas and Antonin Scalia. At the time, however, Black's colleagues thought his work amateur and sloppy. Several encouraged Black to get lessons in judging from a leading academic— Professor Felix Frankfurter, who had not yet joined the bench.

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.

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.