The following op-ed by HLS Professor Noah Feldman, Supreme Court Sibling Rivalry: Will Sonia Sotomayor and Elena Kagan elbow each other to greatness?appeared in the November 8 edition of Slate Magazine.

Noah Feldman

Credit: Phil Farnsworth Noah Feldman

“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.”

Read the rest of the article here.

Feldman is the author of several books, including “The Fall and Rise of the Islamic State (Princeton University Press 2008) and “What We Owe Iraq: War and the Ethics of Nation Building (Princeton University Press 2004). His latest book “Scorpions: The Battles and Triumphs of F.D.R.’s Great Supreme Court Justices,” was published in November.