Sotomayor and Kagan “Go Back To School” Each Other in Warhol v. Goldsmith
As a common matter, the Courtroom’s progressives vote in lockstep. Final time period, Justice Sotomayor agreed with Justice Kagan, at the least partly, in 90% of the instances. (The one increased affinity was between Chief Justice Roberts and Justice Kavanaugh at 97%.) In all instances that matter, Sotomayor and Kagan should unite. They’re each are left-of-center, however strategy the legislation from radically totally different views. Sotomayor is firmly dedicated to her progressive ideas, and preaches that message to adoring followers across the globe. In some ways, Sotomayor is sort of a liberal Justice Thomas–and I imply that as a praise. Against this, Kagan is the shrewd tactician who by no means loses sight of the best way to obtain her targets over the longterm. I typically marvel how most of the votes she casts she truly believes in. In that regard, Kagan is sort of a liberal Chief Justice Roberts–and I do not imply that as a praise.
Just like the South Bronx and the Higher West facet, these two jurists are neighbors, however are worlds aside. And over time, I think that quiet conflicts have constructed up on the left. It should be powerful all the time having to carry your nostril and vote collectively. There have been plenty of fortune cookies and paper baggage through the years.
Yesterday, these simmering tensions appear to have boiled over in Andy Warhol Basis v. Goldsmith. Justice Sotomayor wrote the bulk opinion for a 7-member majority. Justice Kagan wrote a dissent, which was joined by the Chief Justice. The bulk opinion stretched 38 pages, and the dissent was about the identical size. (Although the page-count was padded by many photos.) Each opinions responded to one another, over and over. And the tone was sharp, and at occasions, imply. It reads like a Twitter flame conflict. Let me summarize the case, within the spirit of my previous imagined group chats. And, within the spirit of the case, I borrowed liberally from the precise determination with out quotation.
@Sonia: Apparently @Elena took an artwork historical past class in school and an IP seminar in legislation college and thinks she’s an professional on all the things. However we’re following *precise* legislation right here.
@Elena: Did you truly learn Campbell and Google? Did you truly see Warhol’s art work? Warhol shouldn’t be an Instagram filter. #NothingComesFromNothing
@Sonia: We’re judges, not artwork critics. Goldsmith’s picture and Warhol’s art work serve the identical important objective–{a photograph} in {a magazine} article. #NoFairUse
@Elena: They are not related. #Disembodied #Rotated You doctored the pictures to make them look related in #Figure6! #WarGold
@Neil and @KBJ: You two must take a Twitter timeout.
@Sonia: Elena is specializing in a case that’s not even earlier than the Courtroom! #SleightOfHand #Misstatements #Exaggerations
@Elena: Sonia’s opinions is getting ratio’d due to its ipse dixit. #SelfRefuting
@Sonia: And, by the way in which, I truly litigated mental property points. Did you ever litigate something @Elena?
@TheChief: Yeah, I wish to get in on this. I am going to be part of Elena’s opinion which gratuitously assaults a member of my Courtroom. #Establishment
You are welcome. I simply saved you from having to learn eighty pages. In candor, Justice Gorsuch’s brief concurring opinion, which was joined by Justice Jackson, ought to have been the opinion of the Courtroom. It managed to make all the precise arguments in a couple of web page, with out this JV-squabbling. Would it not have been so arduous for everybody else to leap ship? Justice Thomas, assuming he made this task, would in all probability take this one again. I additionally assume had Justice Breyer nonetheless been on the Courtroom, he may have defused these clap-backs. The Stevens paper constantly present Breyer decreasing the temperature. Now that function falls to (checks notes) Gorsuch and Jackson?
This opinion “won’t age nicely.” It doesn’t have “a lot of a future.” Justices Sotomayor and Kagan each must go “again to highschool.” I hope this “fifteen minutes” of flame conflict is over.
On a associated, tea-leaf-reading discover, I noticed that Justice Kagan regarded particularly dour throughout oral arguments in Jack Daniels, one other IP case. Her slim view of “parody” and remark about not having a humorousness makes far more sense now. Kagan’s defeat in Warhol spilled over into the whiskey case–or is it squeaked different into the chew toy case. I learn so many puns, blended metaphors, parentheticals, and em-dashes within the Kagan dissent that my mind hurts. I prefer to assume Justice Scalia may have written a much more forceful dissent in about 10 pages. Nothing comes from nothing, however generally much less is extra.
