Rivalries Among Justices — And Why the FDR-Era Supreme Court is Different From Today’s Supreme Court

Writing in Slate, Harvard Law prof Noah Feldman argues that Justice Sotomayor and Justice Kagan “are fated to define their judicial careers in relation to each other.” He writes:

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.

I realize that Professor Feldman has a new book out this week about the rivalry among four of FDR’s nominees to the Court, published the same day as the Slate article. It’s certainly possible to read the Slate essay as slightly forcing the point about Sotomayor and Kagan to set up the preview of the book argument that follows. But just on the merits, I’m not sure I see why Sotomayor and Kagan “are fated to define their judicial careers in relation to each other.”

Consider Feldman’s comparison in the quoted paragraph above. First of all, about half the current Justices are “strong-willed New Yorker[s] with an identifiable ethnic identity.” Three of them “went to Princeton University in the first years that the college began to admit women,” with a fourth attending Harvard College around the same time. All nine Justices “performed brilliantly” in college. And Kagan and Sotomayor took very different paths after law school. Kagan clerked at the Supreme Court and then went to the ivory tower of academia, while Sotomayor went straight into the trenches of being an Assistant District Attorney. Their careers stayed on very different tracks, too. Kagan stayed in academia with the exception of service in the executive branch, while Sotomayor was a judge at the trial and circuit court level for 17 years. It seems to me that Justices Kagan and Sotomayor are very different people, and I don’t quite see the reason to view them as rivals or competitors.

Indeed, one of the refreshing aspects of the current Court is that the Justices all get along so well with each other. We’ve come along way since the FDR court in that important sense: Today’s Justices see each other as colleagues, not rivals. They get along, and they like each other. Why the difference?

I think the difference is the nastiness of today’s Senate confirmation process. When FDR was President, there were no contentious hearings. In fact, until Frankfurter was nominated, the nominee didn’t even appear in person. Confirmations could be incredibly fast: William O. Douglas was nominated March 20th, 1939 and confirmed two weeks later. In that era, you could nominate someone with a very abrasive personality and they could get confirmed. And so you had a lot of Justices with abrasive personalities, and a lot of rivalries and intra-personal disputes among the Justices. The Justices could be nasty because the confirmation process wasn’t.

That wouldn’t fly today. Today the confirmation process is really tough, and nominees benefit greatly in the process by having a sunny personality and a warm disposition. The process is slow, drawn out, and on TV, so a nominee needs as many friends as possible, especially from the other side of the aisle. A sense of humor is a big asset, too. Over time, that very tough environment has tended to produce successful nominees who have a very different set of personalities than the Justices of the 1930s and 1940s.