As a general matter, the Court's progressives vote in lockstep. Last term, Justice Sotomayor agreed with Justice Kagan, at least in part, in 90% of the cases. (The only higher affinity was between Chief Justice Roberts and Justice Kavanaugh at 97%.) In all cases that matter, Sotomayor and Kagan must unite. They are both are left-of-center, but approach the law from radically different perspectives. Sotomayor is firmly committed to her progressive principles, and preaches that message to adoring fans around the globe. In many ways, Sotomayor is like a liberal Justice Thomas–and I mean that as a compliment. By contrast, Kagan is the shrewd tactician who never loses sight of how to achieve her goals over the longterm. I often wonder how many of the votes she casts she actually believes in. In that regard, Kagan is like a liberal Chief Justice Roberts–and I don't mean that as a compliment.
Like the South Bronx and the Upper West side, these two jurists are neighbors, but are worlds apart. And over time, I suspect that quiet conflicts have built up on the left. It must be tough always having to hold your nose and vote together. There have been lots of fortune cookies and paper bags over the years.
Yesterday, those simmering tensions seem to have boiled over in Andy Warhol Foundation v. Goldsmith. Justice Sotomayor wrote the majority opinion for a 7-member majority. Justice Kagan wrote a dissent, which was joined by the Chief Justice. The majority opinion stretched 38 pages, and the dissent was about the same length. (Though the page-count was padded by many pictures.) Both opinions responded to each other, over and over again. And the tone was sharp, and at times, mean. It reads like a Twitter flame war. Let me summarize the case, in the spirit of my past imagined group chats. And, in the spirit of the case, I borrowed liberally from the actual decision without citation.
