US Supreme Court Justices Sonia Sotomayor and Elena Kagan, who are typically on the same side in opinions as fellow liberals, found themselves notably at odds in a case involving a picture of the musician Prince.
Sotomayor wrote a majority 7-2 opinion Thursday ruling against Andy Warhol’s foundation in a dispute over the copyrights of a photograph he used to make a silkscreen portrait of the musician while Kagan penned the dissent.
Both took shots at the other, which isn’t unusual when justices disagree on the outcome of a case. It is more surprising among two allies on the court’s liberal wing.
“Neither justice was pulling her punches,” said Ed Whelan, distinguished senior fellow at the Ethics & Public Policy Center, who added that it led to some “sharp exchanges.”
Sotomayor referenced Kagan’s dissent 43 times in either the text of the ruling or an accompanying footnote. Kagan said in her own footnote that the majority opinion was “trained on the dissent in a way majority opinions seldom are.”
“Maybe that makes the majority opinion self-refuting? After all, a dissent with ‘no theory’ and ‘no reason’ is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes,” Kagan said, quoting the opinion.
In an email, Goodwin Procter Partner Jaime Santos called the beginning of Kagan’s footnote the “judicial equivalent of the Mean Girls ‘why are you so obsessed with me’ meme.”
One Fish, Two Fish
Since taking the bench in 2010, Kagan has emerged as a sharp dissenter.
One of her most memorable in 2015, when she took exception with the majority’s view that a federal law meant to punish document destruction in the wake of financial scandals didn’t reach a commercial fisherman who threw an illegally caught grouper overboard before federal authorities could investigate.
Kagan said the language of the rule—which punished those who knowingly destroyed “any record, document, or tangible object”—clearly ensnared the fisherman. Her support for the proposition that the fish came within the meaning of tangible object? Dr. Seuss’ 1960 classic book “One Fish Two Fish Red Fish Blue Fish.”
Kagan’s pointed commentary has more often been directed at her more conservative colleagues. In a 2013 class action dissent, Kagan aimed her strong criticism at the late Justice Antonin Scalia, who himself was known for his pithy and often barbed opinions.
Kagan said arbitration by small business plaintiffs in the case would be a “fool’s errand” because the cost of pursuing individual arbitration would far outweigh any potential reward. “And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad,” Kagan wrote.
More recently, Justice Brett Kavanaugh has been the target of Kagan’s sharp pen. Writing for the majority in Borden v. United States, Kagan likened Kavanaugh’s dissent to a magic show, “putting the rabbit in the hat” to uphold a longer sentence for a criminal defendant.
Whelan said in many ways, Kagan may be displaying that she has the same intellectual spirit as Scalia.
“What you see in Kagan’s dissent is her perception that the majority doesn’t understand what art and creativity are and I think she brings a passion to that matter precisely because she believes with evident good reason that she does,” he said.
‘Sleight of Hand’
In the dispute over Warhol’s Prince portraits, Sotomayor accused Kagan of beginning ”with a sleight of hand.”
“The result is a series of misstatements and exaggerations, from the dissent’s very first sentence,” Sotomayor wrote.
Kagan said she wasn’t going to “rebut point for point the majority’s varied accusations,” and then took a few hits of her own at the opinion.
“For it is not just that the majority does not realize how much Warhol added; it is that the majority does not care,” she said. “In adopting that posture of indifference, the majority does something novel (though in law, unlike in art, it is rarely a good thing to be transformative).”
Santos, who filed a brief in the case on behalf of two foundations and the Brooklyn Museum supporting The Andy Warhol Foundation, said Kagan’s fiery dissents are typically reserved for cases in which the majority overrules precedent in a way she sees as intellectual disingenuous or undermines what she views as constitutional rights that are fundamental to a functioning democracy.
“It’s more surprising to see such sharp elbows in an IP case about art,” she said.
But Richard Re, a University of Virginia School of Law professor, called it “a breath of fresh air in an odd way” to see ideological allies on the left talking to one another much like they talk to their ideological adversaries.
“In an environment where you usually see left rhetoric being directed against the right, and sometimes people take that at face value and don’t realize to great extent this is just how justices talk to one another when they strongly disagree these days,” he said. “It’s kind of the triumph of Justice Scalia’s rhetorical approach and not just the triumph of it, but again maybe the overuse of it that we’re seeing here.”
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