Truly Unprecedented

The deeply personal back and forth this week between Chief Justice John Roberts and Associate Justice Sonia Sotomayor over race is without parallel in the court’s history, legal experts tell Sahil Kapur.

Part of the reason for that of course is the unhappy historical fact that racial and ethnic minorities haven’t had a seat on the Supreme Court bench until the last 47 years. But part of it, too, may have been the calculation by the likes of Thurgood Marshall that a direct public confrontation would not be productive in the long run.

The highlight of Sahil’s piece may be the anecdote offered by a former Marshall clerk in which Marshall pulled his punch toward the other justices in his dissent in a 1973 case.

But we know Marshall’s personal feelings about the white justices on matters of race were stronger than what he wrote in that dissent. An Adam Liptak piece during the Sotomayor confirmation in 2009, which very nearly anticipates this week’s clash, quotes Marshall from an interview that appears to have been given after he left the Court: “What do they know about Negroes? You can’t name one member of this Court who knows anything about Negroes before he came to this Court. Name me one.”

Late Update: Ironically, Thurgood Marshall’s son and widow were in the courtroom Monday when Sotomayor read her dissent:

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