Kagan Surprised Testy Exchange With Sotomayor Got Attention

Justice Elena Kagan expressed surprise at the attention given to a heated exchange with her frequent ally Sonia Sotomayor, saying the justices aren’t ideological twins.

“We went at each other hammer and tongs,” Kagan said Thursday at a conference of judges and lawyers in Portland, Oregon. She was referring to the court’s May 18 ruling in Andy Warhol Foundation v. Goldsmith, in which the two liberal justices found themselves on opposite sides of the copyright dispute.

But Kagan said court watchers shouldn’t be surprised by the tenor of Sotomayor’s majority opinion and her dissent. “If you think that Justice Kagan and Justice Sotomayor are identical judges with identical methodologies, reaching identical outcomes on the basis of identical approaches to the law,” Kagan told attendees of the US Court of Appeals for the Ninth Circuit conference, you should think something different.

The high stakes copyright dispute case involving music legend Prince and artist Andy Warhol broke 7-2, with several justices crossing ideological lines.

Sotomayor referenced Kagan’s dissent 43 times, prompting Kagan to note that she 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.

During her appearance Thursday, Kagan acknowledged that she and Sotomayor—both appointed by President Barack Obama— are often partners, being two of just three justices appointed by Democratic administrations.

But Sotomayor was just wrong on this one, Kagan said.

“There were seven people who really thought that their view was right, and two people who really thought that the majority view was wrong,” she said. It was an “incredibly fun” dissent to write and Chief Justice John Roberts knew he was “giving me a gift” when he assigned it to her, Kagan said.