The importance of Sotomayor and Kagan's dueling Warhol case opinions

A willingness from the justices to speak plainly, forcefully, and almost directly to the public about why Supreme Court's decisions matter is exactly what's needed now.

As of now, there are only five more days marked on the Supreme Court’s calendar for possible opinions — each Thursday between now and June 22.

The cases left undecided — 33, by my count — have not gotten the attention that last year’s abortion case got, but they could dramatically exacerbate the court’s extremist, reactionary turn.

The court is expected to end affirmative action, it could further hobble the Voting Rights Act, and it could cut state supreme courts out of federal redistricting and voting election questions altogether. It is likely to give further priority to religious claims — under the coverage of the First Amendment’s speech clause — over antidiscrimination laws. It could alter the way religious accommodations are considered under Title VII of the Civil Rights Act of 1964. And, it will decide what to do with the Biden administration’s student loan forgiveness plan.

Which brings us to Andy Warhol.

This past week, in an unusual 7-2 lineup, the Supreme Court sided with photographer Lynn Goldsmith over the Andy Warhol Foundation in a lawsuit over the Foundation’s claim that a Warhol portrait’s use of one of Goldsmith’s photo of Prince constituted a “fair use” under copyright law.

The case could have major implications for copyright law and art.

For what it means at the Supreme Court itself, though, the big news was the fact that Justice Sonia Sotomayor, writing the court’s majority opinion, and Justice Elena Kagan, writing the dissenting opinion for her and Chief Justice John Roberts, wrote aggressive opinions that directly attacked each other’s positions — most notably highlighted in dueling footnotes.

As Lydia Wheeler and Kimberly Robinson wrote of the two Obama appointees at Bloomberg Law, “Kagan, Sotomayor Trade Rare Barbs in Warhol High Court Case.”

Over the weekend, I’ve been thinking about what this means for the rest of the term. Why were two of the three Democratic appointees willing to exchange “rare barbs” with one another — and in front of all of us?

We’ll obviously get a better idea in the coming weeks, but I think I at least have an answer as to what I hope it means.

Sotomayor and Kagan — now having both been on the Supreme Court for more than a decade, as the court has taken this sharp turn right — know that they are writing not just for history, as all justices are keenly aware, but also for today. One of the things that the Warhol decision tells me that they know is that part of writing for today means making clear to an audience outside of lawyers that what is happening in these cases matters, that even justices who agree on many matters can sharply disagree with each other — think that the other one is wrong, “mak[ing] our world poorer,” with their decisions, as Kagan put it.

And that was in a “fair use” case.

This development could be an excellent thing, if all of the justices realize that their opinions actually do need to justify themselves — if they have to be persuasive documents, not only through their vote count, not only to lawyers, but to America.

For the three justices on the losing side of cases decided on partisan lines, Sotomayor and Kagan’s willingness to speak plainly, forcefully, and almost directly to the public in the Warhol case could be a sign of similar opinions from them and Justice Ketanji Brown Jackson in some of these other upcoming decisions.

If the conservative majority wants to end affirmative action altogether, further eviscerate the Voting Rights Act, water down the power of state anti-discrimination laws, or take any of the other steps that the conservatives could take in the coming weeks, they’d better be ready to defend their decision against the sort of dissent that Kagan was willing to write in opposition to her fellow Obama appointee.

That sort of power from the left, and obligation put on those on the right, could be a very good step to getting through the coming years. It could, in fact, be exactly what’s needed now.

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Although those 33 cases are expected to be resolved in the coming weeks, the fact that the court — as of now — only lists five possible opinion days in no way means there will only be five more opinion days.

Based on past experience, the court would be expected to add other opinion days to the calendar, but we don’t know. This is the first term when the court has defaulted to Thursday opinion release days — likely paired with the fact that the justices’ private conference is also on Thursday. The court also could go beyond June 22 and often does go later — generally concluding before the Fourth of July — but, again, we don’t know.

On the calendar for this Thursday, the court’s website states, “The Court may announce opinions, which are posted on the homepage after announcement from the Bench.” Aside from this week, the court’s website merely states, “The Court will convene for a public non-argument session in the Courtroom at 10 a.m.” But, each week recently, on Friday, the court has updated the calendar for the next Thursday to add the opinions language.

Yes, this is what it’s like to figure out what the court is doing at any given moment.