Elena Kagan, Sonia Sotomayor trade jabs in Andy Warhol case
Supreme Court Justice Elena Kagan appeared to take umbrage at Justice Sonia Sotomayor’s majority opinion in a copyright case involving Andy Warhol and Prince, telling readers in her dissent that she would trust their “good judgment” rather than counter her colleague’s “fistfuls of comeback footnotes.”
The shot at Kagan’s fellow liberal came in a lengthy second footnote of her dissent, which several Supreme Court observers found “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.
Elena Kagan sided with Chief Justice John Roberts in the court’s 7-2 ruling on Thursday. AP
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.”
Kagan and Chief Justice John Roberts were the only justices that didn’t rule in favor of music photographer Lynn Goldsmith’s claim that the the Andy Warhol Foundation for the Visual Arts improperly licensed a work by the famous pop artist which used a photograph of the late musician Prince taken by Goldsmith.
Conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined Sotomayor and liberal Justice Ketanji Brown Jackson in the majority.
Sonia Sotomayor and Kagan were both nominated to the Supreme Court by former President Barack Obama. Getty Images
In that opinion, Sotomayor said Kagan had employed “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 conclusion that that the court’s decision 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 snarky asides made legal scholars and court reporters sit up and take notice.
“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.
Sotomayor was nominated to the bench in 2009 by former President Barack Obama. Kagan, also nominated by Obama, was confirmed to the high court a year later.
Source: New York Post
