The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As a general matter, the Court's progressives vote in lockstep. Last term, Justice Sotomayor agreed with Justice Kagan, at least in part, in 90% of the cases. (The only higher affinity was between Chief Justice Roberts and Justice Kavanaugh at 97%.) In all cases that matter, Sotomayor and Kagan must unite. They are both are left-of-center, but approach the law from radically different perspectives. Sotomayor is firmly committed to her progressive principles, and preaches that message to adoring fans around the globe. In many ways, Sotomayor is like a liberal Justice Thomas–and I mean that as a compliment. By contrast, Kagan is the shrewd tactician who never loses sight of how to achieve her goals over the longterm. I often wonder how many of the votes she casts she actually believes in. In that regard, Kagan is like a liberal Chief Justice Roberts–and I don't mean that as a compliment.
Like the South Bronx and the Upper West side, these two jurists are neighbors, but are worlds apart. And over time, I suspect that quiet conflicts have built up on the left. It must be tough always having to hold your nose and vote together. There have been lots of fortune cookies and paper bags over the years.
Yesterday, those simmering tensions seem to have boiled over in Andy Warhol Foundation v. Goldsmith. Justice Sotomayor wrote the majority opinion for a 7-member majority. Justice Kagan wrote a dissent, which was joined by the Chief Justice. The majority opinion stretched 38 pages, and the dissent was about the same length. (Though the page-count was padded by many pictures.) Both opinions responded to each other, over and over again. And the tone was sharp, and at times, mean. It reads like a Twitter flame war. Let me summarize the case, in the spirit of my past imagined group chats. And, in the spirit of the case, I borrowed liberally from the actual decision without citation.
@Sonia: Apparently @Elena took an art history class in college and an IP seminar in law school and thinks she's an expert on everything. But we are following *actual* law here.
@Elena: Did you actually read Campbell and Google? Did you actually see Warhol's artwork? Warhol is not an Instagram filter. #NothingComesFromNothing
@Sonia: We are judges, not art critics. Goldsmith's photo and Warhol's artwork serve the same essential purpose–a photograph in a magazine article. #NoFairUse
@Elena: They're not similar. #Disembodied #Rotated You doctored the images to make them look similar in #Figure6! #WarGold
@Neil and @KBJ: You two need to take a Twitter timeout.
@Sonia: Elena is focusing on a case that is not even before the Court! #SleightOfHand #Misstatements #Exaggerations
@Elena: Sonia's opinions is getting ratio'd because of its ipse dixit. #SelfRefuting
@Sonia: And, by the way, I actually litigated intellectual property issues. Did you ever litigate anything @Elena?
@TheChief: Yeah, I want to get in on this. I'll join Elena's opinion which gratuitously attacks a member of my Court. #Institution
You're welcome. I just saved you from having to read eighty pages. In candor, Justice Gorsuch's short concurring opinion, which was joined by Justice Jackson, should have been the opinion of the Court. It managed to make all the right arguments in a few page, without this JV-squabbling. Would it have been so hard for everyone else to jump ship? Justice Thomas, assuming he made this assignment, would probably take this one back. I also think had Justice Breyer still been on the Court, he could have defused these clap-backs. The Stevens paper consistently show Breyer lowering the temperature. Now that role falls to (checks notes) Gorsuch and Jackson?
This opinion "will not age well." It does not have "much of a future." Justices Sotomayor and Kagan both need to go "back to school." I hope this "fifteen minutes" of flame war is over.
On a related, tea-leaf-reading notice, I observed that Justice Kagan looked especially dour during oral arguments in Jack Daniels, another IP case. Her narrow view of "parody" and comment about not having a sense of humor makes much more sense now. Kagan's defeat in Warhol spilled over into the whiskey case–or is it squeaked other into the chew toy case. I read so many puns, mixed metaphors, parentheticals, and em-dashes in the Kagan dissent that my brain hurts. I like to think Justice Scalia could have written a far more forceful dissent in about 10 pages. Nothing comes from nothing, but sometimes less is more.