U.S. Supreme Court Justice Sonia Sotomayor
U.S. Supreme Court Justice Sonia Sotomayor (Diego M. Radzinschi / NLJ)

U.S. Supreme Court Justice Sonia Sotomayor’s sharp dissent in last week’s affirmative action ruling marked a new phase in her tenure even as it exposed a simmering rift between her and Chief Justice John Roberts Jr.

Sotomayor’s 58-page dissent in Schuette v. Coalition to Defend Affirmative Action was her first civil rights writing, and her first time reading her dissent from the bench, since joining the court in 2009.

“With her dissent, she fully stepped into the shoes of Thurgood Marshall,” said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund. Attorney General Eric Holder Jr. praised Sotomayor for “her courageous and personal dissent.”

But some are faulting Sotomayor for writing a dissent that was heavy with divisive criticism, but light on guidance to affirmative action supporters for future cases.

By a 6-2 majority, the court on April 22 upheld a 2006 ballot initiative in Michigan that banned racial preferences in college admissions and other state programs.

Sotomayor said the majority was trying to “wish away, rather than confront” racial inequality and compared the decision to race-based efforts through American history to “manipulate the ground rules so as to ensure the minority’s defeat.”

But when she mocked one of Roberts’ best-known writings about race, her dissent got personal. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race,” she said from the bench. Before she joined the court, Roberts had written in a 2007 case, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Roberts took it personally. In his concurrence, Roberts wrote, “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

Anyone who has watched oral argument in recent years has probably guessed that Roberts and Sotomayor are not the best of friends. When she interrupts advocates or other justices to press her own line of questions in a relentless style, Roberts sometimes purses his lips disapprovingly and intervenes to redirect the flow of debate.

But it is rare for that kind of friction to make its way into written opinions as it did last week. Longtime Supreme Court scholar Melvin Urofsky, author of an upcoming book on Supreme Court dissents, said Sotomayor’s tone in the affirmative action case was unusually critical and may not be helpful in the long run. But he added, “It’s not worse than a lot of [Antonin] Scalia’s dissents.”

University of Georgia School of Law professor Sonja West, a former Supreme Court law clerk, said the disagreement between Sotomayor and Roberts was inevitable because of their long-held views about race. “But over time, justices have shown great ability to regain their camaraderie even in the wake of very divisive cases,” West said. “Some cases just take a little longer than others, and this might be one of those cases.”

Urofsky had a different criticism of Sotomayor’s dissent. “The great dissents tell us what is wrong with the majority opinion, but they also provide us with a way forward. She isn’t telling us where to go.” In great detail, Sotomayor in her dissent argued that the Michigan ban on affirmative action should have been struck down because of precedent and the racially charged context of the ban.

The NAACP defense fund’s Ifill countered that Sotomayor’s ­dissent in fact was “very affirming for those of us who handle these cases.” Judges are often “hard-wired,” she said, to believe that racial motives are not behind government actions like Mich­igan’s. As a result, she said, “the burden we face is to develop the factual record to prove the case.” That is exactly what Sotomayor did in her dissent, Ifill said. “She wasn’t just hollering at the majority.”

Contact Tony Mauro at tmauro@alm.com.