Elena Kagan Takes Shot at Sonia Sotomayor in Unusual SCOTUS Opinion Note: ‘I’ll Take My Chances on Readers’ Good Judgment’

Supreme Court Justice Elena Kagan took an unusual shot at her colleague and fellow Democratic appointee Sonia Sotomayor in an opinion released on Thursday morning.

By a 7-2 majority for which Justice Sotomayor wrote, the Court found that the Andy Warhol Foundation infringed on a copyright of a a picture taken by photographer Lynn Goldsmith.

Justice Kagan dissented from that opinion with Chief Justice John Roberts, and did so in an abnormally adversarial fashion. On the first page of her argument’s body, Kagan offered “one preliminary note before beginning in earnest:”

One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self-refuting? After all, a dissent with “no theory” and “[n]o reason” is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes. Ante, at 36. In any event, I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission. I’ll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment.

While differing opinions often reference and take issue with each other, implicit accusations of outright misrepresentation and bad judgment are near unheard of.

Legal reporters and commentators expressed their surprise with Kagan’s scornful tone.

Still reading the opinions, but this is quite a footnote from Kagan to Sotomayor in the former’s dissent. pic.twitter.com/NY3Dw93fHk

— Matt Ford (@fordm) May 18, 2023

And Kagan’s FN2. ???????????? pic.twitter.com/PaKCLCIExQ

— Jonathan H. Adler (@jadler1969) May 18, 2023

Sotomayor responds extensively to Kagan’s dissent, leading Kagan to drop this very spicy footnote. https://t.co/ew8BmInWZO pic.twitter.com/5pt0avG76q

— Mark Joseph Stern (@mjs_DC) May 18, 2023

Interesting to see how heated the disagreement between Sotomayor and Kagan is. https://t.co/K5r9mHb9xa

— Ed Whelan (@EdWhelanEPPC) May 18, 2023

I am doubting the “respectfully” part of that dissent. Wow. https://t.co/R8Vm60DCWy

— Raffi Melkonian (@RMFifthCircuit) May 18, 2023

Sotomayor was confirmed as a justice in August 2009 after being nominated by Barack Obama in 2009. Kagan was confirmed almost exactly a year later as Obama’s second Supreme Court nominee.

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