Sotomayor and Kagan have the “promise to serve as a 21st-century version of Thurgood Marshall and William Brennan.”

August 6th, 2011

Oh Emily Bazelon is so hopeful, so, so hopeful. I have called attempts to label Sotomayor the leader of the liberal wing of the Court a bit premature. Though, Bazelon leads off with this topic in a piece in the Times. What evidence is there that Sonia is channeling Thurgood?

Yet this year, Sotomayor took the rare step of publicly opposing the court’s decision not to hear the petition of a Louisiana prisoner who stopped taking his H.I.V. medication to protest a prison transfer and sued for being punished with hard labor in 100-degree heat. She actually pulled this petition out of a stack of thousands that prisoners submit without lawyers, making a cause célèbre of a humble plea. With this, Sotomayor set herself up to be the court’s hard-charging liberal — à la Marshall, who liked to take his shots, diplomatic maneuvering be damned.

And what does Elena have in common with Bill?

Kagan, meanwhile, has positioned herself as chief diplomat (reminiscent of Brennan). As a D.C. lawyer familiar with the court put it, “If you asked every justice who Justice Kagan’s favorite is, they’d all name themselves, except maybe Chief Justice Roberts.” Justice Ruth Bader Ginsburg has been so impressed by Kagan’s work that she told me, “Elena has it in her to be one of the exemplary justices of our time.”

So we have an ideologue and a diplomat. And what will they accomplish? Persuading Scalia to raise gender discrimination to strict scrutiny?

The trio could try to make it harder for the government to treat men and women differently. The current standard for upholding a law or practice rooted in gender difference is somewhere between “rational basis” (where just about any government rationale will do) and “strict scrutiny” (where the government has to show it really knows what it’s doing). If they can get a couple of men on their side (hello, Stephen Breyer, Anthony Kennedy and maybe even Antonin Scalia), the court’s three women could raise the bar for sex discrimination to strict scrutiny.

Ahem. That’s not going to happen.

I’ll hold my breath before labeling Kagan and Sotomayor as the new Brennan/Marshall duo. And as I recall, Brennan and Marshall were mostly known for their dissents.