U.S. Supreme Court

Sotomayor’s Cert Dissent Was ‘Implicit Invitation to Kagan’

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A dissent from a cert denial last month had some court watchers wondering whether Justice Sonia Sotomayor was staking a claim to the role played by the Supreme Court’s famous liberal justice, the late Thurgood Marshall.

Sotomayor argued that the Supreme Court should have accepted the appeal by an HIV-positive prison inmate who asserted he could not be forced to do hard labor after he stopped taking his medication, according to a Slate column by Harvard law professor Noah Feldman, the author of a new biography of four justices appointed by Franklin D. Roosevelt.

Court watchers puzzled over the dissent, Feldman writes. “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, Feldman says, Sotomayor was shaping her identity through a striking opinion, a step taken by many new justices. Feldman sees significance in the timing of the dissent, issued as Justice Elena Kagan is starting her first term on the court.

“For Sotomayor to gesture toward Marshall’s legacy constitutes an implicit invitation to Kagan to join her,” Feldman writes. “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.”

The New York Times and the Wall Street Journal have reviews of Feldman’s book, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices.

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