Elena Kagan, a justice on the Supreme Court, appeared to take exception to Sonia Sotomayor’s majority opinion in a copyright case involving Andy Warhol and Prince. In her dissenting opinion, Kagan told readers that she would trust their “good judgment” rather than counter her colleague’s “fistfuls of comeback footnotes.”
The jab at Kagan’s fellow liberal was delivered in a lengthy second footnote of her dissent, which some observers of the Supreme Court deemed to be “interesting” and “noteworthy.”
“One preliminary note before beginning in earnest,” Kagan wrote. “As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self-refuting? After all, a dissent with ‘no theory’ and ‘[n]o reason’ is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes.”
“In any event,” Kagan went on. “I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission. I’ll just make two suggestions about reading what follows,” she concluded. “First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to [statements without evidence]. With those two recommendations, I’ll take my chances on readers’ good judgment.”
The only justices who did not rule in favor of music photographer Lynn Goldsmith’s claim was Kagan and Chief Justice John Roberts. Goldsmith claimed that the Andy Warhol Foundation for the Visual Arts improperly licensed a work by the famous pop artist that used a photograph of the late musician Prince taken by Goldsmith. Kagan and Chief Justice John Roberts were the only justices who did not rule in favor of Goldsmith’s claim.
In the majority opinion, along with Justice Sotomayor and Justice Ketanji Brown Jackson, conservative Justice Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined liberal Justice Ketanji Brown Jackson.
In that decision, Justice Sotomayor stated that Justice Kagan had engaged in “sleight of hand” and made “a false equivalence between AWF’s commercial licensing and Warhol’s original creation.”
“The result is a series of misstatements and exaggerations, from the dissent’s very first sentence to its very last,” she added.
In response to Kagan’s findings, which led her to the conclusion that the ruling of the court would “stifle creativity of every sort … impede new art and music and literature … thwart the expression of new ideas and the attainment of new knowledge [and] make our world poorer,” Sotomayor wrote: “These claims will not age well.”
“It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work,” the majority opinion went on. “Nor will the Court’s decision, which is consistent with longstanding principles of fair use, snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers.”
“In tracing the history of Renaissance painting … the dissent loses sight of the statute and this Court’s cases,” Sotomayor added. “The Lives of the Artists undoubtedly makes for livelier reading than the U. S. Code or the U. S. Reports, but as a court, we do not have that luxury.”
The sarcastic asides caught the attention of court reporters and legal experts.
“Interesting to see how heated the disagreement between Sotomayor and Kagan is,” Ed Whelan, the distinguished senior fellow and Antonin Scalia chair in constitutional studies at the Ethics and Public Policy Center, wrote on Twitter.
“I’m not sure how one would quantify this, but it’d be interesting if someone could figure out whether SCOTUS opinions are less collegial now than before. Today’s Sotomayor/Kagan clash really stood out on that front,” Matt Ford, who covers law and the courts for the New Republic, said in a tweet.
Former President Barack Obama proposed Sotomayor for the bench in 2009. A year later, Kagan, another Obama nominee, was confirmed to the high court.
