We debate Justice Gorsuch's unusual "statement" in Arizona v. Mayorkas. Then, we don't let our complete lack of knowledge of intellectual property law stop us in trying to make sense of Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, the big copyright throw-down between Justices Sotomayor and Kagan.
We debate Justice Gorsuch's unusual "statement" in Arizona v. Mayorkas. Then, we don't let our complete lack of knowledge of intellectual property law stop us in trying to make sense of Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, the big copyright throw-down between Justices Sotomayor and Kagan.
[Divided Argument theme]
Dan: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, we just narrowly averted a sound quality disaster in the preshow set up. You were not connected in the right driver and was going to sound super bad. So people who complain about the sound quality could be worse today.
Will: Dan's looking out for you all.
Dan: Yeah. We got to eliminate reasons for people to give us those low star reviews on the podcast app. I haven't checked in on our review situation since last time we were complaining on these. Let's see. We got one from Saturday. It says, "Insufficient coverage of the criminal side of the SCOTUS docket and how many big noncapital criminal cases get ignored would be my only knock on a great podcast, especially because originalism ought to be and sometimes is quite pro defendant in many respects. The SCOTUS criminal docket provides an important setting to explore how various Justices reveal their jurisprudential and political commitments. I don't think that's totally fair because I feel we're interested in that stuff.
Will: Yeah. I feel we cover the criminal stuff disproportionately. There just haven't been any cases about it this year that we haven't.
Dan: We talked on two episodes about the frauds cases. We didn't spend as much time on them, so we wanted to last time, but we talked about [unintelligible [00:01:32] pro stuff. So, I don't know. On Friday, we got one. There's going to be some collateral damage here, unfortunately. Nerdy Law Profs, two stars. " They try hard and other than the pedantic lib Dan and the insufferable guest, Steve Vladeck, it’s a pretty entertaining podcast." Wow.
Will: Wait, who's left? Who do they like?
Dan: [chuckles] I mean, somebody. I don't know. That's not very nice.
[chuckles]
Dan: But I guess you are worth two stars and I'm worth negative three stars.
Will: I think if people don't like one of the hosts, I'm not really sure why they listen to this podcast.
Dan: Yeah, it's sort of like at that point, maybe you should just not listen. Okay, we've got somebody on Thursday saying, "Make Steve permanent." Gave us five stars but that's sort of saying you want the lineup of permanent hosts to change suggests some level of dissatisfaction. It says, "No offense to Dan, but when these two," meaning you and Steve, "go head to head on the institutional issues, it feels like the show truly lives up to its promise of Divided Argument." Okay, well, I'm glad we're still getting the reviews, even if they're not all fawning with praise. So, keep them coming. Let's get us back up to 4.9 or even a 5.0, if that's mathematically possible. Anything else to check in on?
Will: No.
Dan: All right. Well, court did give us some more stuff to talk about last week, and as before, there's actually more here than we're going to be able to talk about. We got five opinions last Thursday. Is that right?
Will: Yeah. Big stack.
Dan: Yeah. We've got a patent case. We've got a couple of cases about Section 230 of the Communications Decency Act. Very important for Internet publishers, social media. We had a case about Federal Labor Relations Authority. Definitely not going to talk about that one anymore. What are we going to talk about?
Will: I think we should talk about copyright. I think we should talk about art, Dan. Do you like art?
Dan: Yeah. Well, I don't know. Depends on the art. Depends on what category of art, but some.
Will: So, we're recording this on Monday, May 22nd, and we did also get an orders list today. And I wonder, can I ask you about two things on the orders list before we do that?
Dan: You can. I may not say anything about them but go ahead and ask.
Will: Okay. The first is an order of the court in a case called Holland v. Florida 22-6206. This was flagged by Adam Unikowsky on Twitter. "The petition for hearing is denied. Justice Kagan took no part in the consideration or decision of this petition. See 28 U.S.C. 455(b)(3) and Code of Conduct for US judges, Canon 3C(1)(e) (prior government employment)." That’s citation as to why does Justice Kagan is recusing herself because she was in the SG's office when earlier around of this case happened. I haven't seen one of those before.
Dan: I thought that was really interesting. I can't say definitively, I've never seen one or that it's never happened before, but it does seem maybe like a new development.
Will: Yeah.
Dan: Sean Marotta, in the reply to Unikowsky on Twitter said, "This was an innovation previewed out in the statement of principles regarding ethics." And this is something that is maybe emanating from what happened recently when the court was sort of prompted to say a little bit more about what it's doing in terms of ethics when the Chief Justice declined to testify before the Senate Judiciary Committee.
Will: I pulled up the last couple of orders lists for this one, the ones from earlier in May. And those also have some recusals, none of which have this citation. So, I think this is new. All the previous recusals and the previous two orders lists were not Justice Kagan. So, one thing I don't know is, is this something everybody's going to do now, and we just got the pilot orders list or is it judges option and Justice Kagan is going to do this? And then if she gets mix enough of a thing, other people will feel they need to do it.
Dan: I'm just going to guess that they won't all do it. That's my guess right now.
Will: I want that to be wrong. I think they should all do it. I think even Justice Thomas and Justice Alito should do it.
Dan: Yeah, but in terms of what is right and what is going to happen, you think I'm right. You know I'm right.
Will: I share your prediction, Dan, but I don't like it.
Dan: Yeah, that's okay. That's how I feel about the court all the time. Accurate predictions, but don't always like them. Often dislike them. So now you know what it's like to be me. What else? What was the number two thing? That was number one.
Will: So, number two thing is we got a summary reversal today of a case called Calcutt v. FDIC, which is not that interesting. It's an administrative law issue about the Chenery rule, the rule that you're not supposed to affirm an agency on alternate grounds. You can affirm a district court on alternate grounds. Like, it didn't say this, but here would have been a way to get there. But for agencies, you're not supposed to do that.
Dan: So, you have to send it back down to them to consider it in the first instance. If they're wrong on the rationale but might have been right for another reason, they still have to go tell you the other reason on their own, basically.
Will: And I think even the SG agreed that there should be a summary reversal in this case on this question. So, not that exciting. I just flagged it for two reasons. One is the lower court opinion is quite cool. It has an interesting dissent by Judge Eric Murphy that gets into a lot of interesting questions about separation of powers and severability, and maybe some of those, I'm not sure whether those questions are now gone or whether those are going to come back at a future time, but it's interesting. The other is, I think this is the court's first summary reversal of the term. And I think that has not happened in a very long time, that they've waited until May.
Dan: But they usually come later-- So, usually come earlier?
Will: Yeah, usually sometime in the fall off of the summer orders list, there's some case that they decided not to grant and just sum revved, and often even a sum rev would be the first opinion of the term, because before you get to the argued cases, there's something that they got that would come in.
Dan: Yeah. I'm looking at, let's see, per curiam stuff from this term. And yeah, there's only a couple of others, and neither of them are summary reversals, which are always per curiam. Why is that? Why do we have that rule, that norm that opinions after argument are authored by a person, then everything else is like per curiam? Like somebody writes the sum rev, why don't we just say who it is?
Will: That's an interesting question. I guess procedurally opinions after the term are assigned, there's a batch of opinions that you have to sign them out and the sum revs are more one-off.
Dan: But it's not like there's a Google Doc and they're all writing different paragraphs. It's like someone is like, "I'm going to write this."
Will: This is true. I assume there's some fiction that if it's a sum rev, if it's so easy, it doesn't take a person to reverse you. It's like an unpublished opinion.
Dan: Designed to be more like insulting.
Will: Well, I feel like it tracks more-- there's this track in the lower court opinions of unpublished opinions which in some circuits might not be signed or signed in the same way where this opinion doesn't involve any new law. So, it's just like a statement of old law and it's barely even worth writing down. And I think sum revs are supposed to be like that, but obviously they're not.
Dan: Yeah. And usually even with an argued case, like if there's something like a DIG, those are going to be per curiam. We had a per curiam also around the same time last week in Gonzalez v. Google, where there's just sort of a short per curiam opinion and saying, "This is basically the same turns on the same legal issues that we decided in the other case, the Twitter case, and so deal with it that way." Why is that per curiam, is it because it's short? I don't know.
Will: Yeah, no, it's weird. I hadn't thought about this until you raised it. I think per curiam is supposed to communicate something like, "We're not really doing anything here." The signed opinions are opinions that are--
Dan: Pay no attention to the man behind the curtain.
Will: Right. It is kind of fun. Probably, this is going to become too easy, but I feel Supreme Court watchers of our vintage sometimes watch the per curiam and then try to figure out who wrote them based on some of the well-known writing tics or punctuation tics of various authors.
Dan: Why? Is that too easy now when it was harder before?
Will: I assume these various sorts of recognition software they use are going to make it too easy. I assume-
Dan: Maybe.
Will: -you can just run all these through and be like, "Oh, this is a Kagan," or whatever. Maybe we're not quite there yet.
Dan: Yeah, I know that there was a study some years ago about the consistency of Justices writing style, like term to term, and it varied. And that was maybe suggested which Justices took more of a heavy hand in writing their own opinions versus different delegating to clerks. And I've forgotten-- I think this is a Lee Epstein, et al study, but I can't remember. But I think one of the bottom lines was that the O'Connor-- this is looking at a period of court when O'Connor was there, hers were least consistent term to term, which is interesting. But I don't have it in front of me. So, if someone can dig that up, that's an interesting one.
Will: Yeah, fair enough. So, it might be if you didn't have enough data from within term for a given Justice, and they were one of those Justices, maybe you couldn't always pick them out, but then presumably we wouldn't be able to pick them out either.
Dan: And maybe the Justices will get the software and then run their own opinions through them and then make strategic modifications.
Will: Well, in the future, ChatGPT can write the pro curiams, and the Justices will have to only write the signed opinions.
Dan: Not Supreme Court Justices, but how many judges do you think are doing that now?
Will: Using ChatGPT to draft their opinions?
Dan: To draft portions or things like that?
Will: Zero.
Dan: You think not a single judge in the entire United States of America is doing that?
Will: Well, a federal judge.
Dan: I don't believe that.
Will: Well, there might be some federal law clerks who are doing it, but most federal judges rely on a law clerk for the first draft, so I don't see why they would change.
Dan: Fair. How about collectively, the chambers? How many chambers of federal judges are doing that? More than zero.
Will: It should be zero.
Dan: Whether it should or shouldn't, I'm asking a factual question.
Will: I know, you keep making these--
Dan: This is the other thing we were just talking about. You're like, "Well, that’s what I want to be true." I'm not asking what you want to be true. I don't really care about that. Asking what is true.
Will: I know, but you keep making these predictions I don't like, Dan.
Dan: Sometimes the world is not the way you want it to be, Will. Not everyone is as principled as you are. Basically, no one is as principled as you are. I'm not. Supreme Court's not.
Will: I don't think a law clerk who uses ChatGPT would tell their judge, though. That's the thing. I'm sure there are some who are doing it for fun or I don't know, because they think it's an efficient use of their time.
Dan: Maybe.
Will: The couple of times I've mentioned this to judges, I know they've not just been not receptive, but they've--
Dan: Yeah, but you hang out with the arch conservative judges.
Will: I don't only hang out with the arch conservative judges.
Dan: You mostly hang out with the arch conservative judges.
Will: I hang out with whoever comes through Chicago, which is an ideologically--
Dan: And who's willing to hang out with you?
Will: True, [chuckles] but it's an ideologically diverse mix of judges.
Dan: Okay. You've got paleo-conservatives and you've got regular conservatives and you got originalists and you've got conservative pragmatists. You got the full gamut.
Will: I'm not naming names, Dan.
Dan: All right, they're fighting on an uneven playing field then. No, I believe you all have a range of judges that come through, but I just think that there's some people, like I think, this is changing society in ways that I think are mostly bad, but nothing I can do about it. Do we have anything substantively to say about that opinion? It sounded like no.
Will: I don't think so.
Dan: Okay, let's let that go then. What else?
Will: Statement.
Dan: Oh, yeah, this is an interesting one. So, I'm going to need you to set this up for us. Do you notice I always make you do the hard setup?
Will: I have noticed.
Dan: Does it bother you?
Will: Only sometimes. There's been a lot of back and forth in both between the Trump administration and then the Biden administration and then between several of the courts, including the Supreme Court, about something called Title 42 Orders, which I object to purely on grounds of nomenclature, in that they are called Title 42 Orders because the authority in them is contained in Title 42 of the US Code, along with many, many other things. And I would refer us back to our previous episode on CFR courts and COBRA, but these orders are also controversial on legal grounds because they involve basically the use of the federal government's public health authority to suspend massive amounts of immigration. And when the Biden administration was prepared to rescind those orders, there were then states and courts that tried to stop it from rescinding them.
So, it's one of these classic things where the Trump administration does something and it gets sued, and then the Biden administration tries to undo it and it gets sued. And the Supreme Court had taken all of those and stayed them for a period of time, and it has finally decided to let the whole thing go as moot because the government has now announced the official legal end of the COVID pandemic. Is that fair?
Dan: I think so. I barely read these things. So, if you said it, it's probably true.
Will: So, the court issued an order, not even a per curiam opinion, dismissing the whole thing, remanding the whole thing to the DC circuit with instructions to dismiss the case as moot. But it is accompanied by what is titled "Statement of Justice Gorsuch". It's not a dissent, it's not a concurrence. It's just a statement.
Dan: Yeah. And just one other thing to note. Before we get there, it looks like maybe there are seven or eight at least people, potentially people on board with the disposition here to vacate and remand with instructions to dismiss as moot because Justice Jackson dissented from that.
Will: Justice Jackson, instead of dismissing as moot, would have dismissed the writ of certiorari and probably granted.
Dan: Why would that matter? It would still remain precedent in the DC Circuit. Is that why it would matter?
Will: Yeah. Remember Justice Jackson had earlier-- we talked about this earlier, she was staking out her position as a Munsingwear skeptic. Munsingwear is the procedure by which the court vacates certain decisions below as moot.
Dan: Yeah. She doesn't like doing it automatically, basically.
Will: Right. She wants to keep the Court of Appeals' opinions around more often than the rest of the court does. She doesn't like this attempt to sort of wipe out lower court law through mootness.
Dan: They can do her principles.
Will: I like it.
Dan: And then, I guess, like you said, it's a statement. I don't really know what this suggests you would have voted for or against.
Will: I think he says in the course of this statement that he doesn't totally object to it. [chuckles] He says, "I don't think we should have issued a stay in-- nearly five months ago, I argued that we aired when we granted expedited review and issued a stay, I didn't think we should do this. Today's dismissal goes some way to correcting that or error." But that's not what he's writing about, Dan.
Dan: Yeah.
Will: Mostly he is writing here to say that, "Even more importantly, the history of this case illustrates the disruption we've experienced over the last three years in how our laws are made and our freedoms are observed." And then, what follows is a short speech, essay about the violations of civil liberties and the separation of powers during the course of the COVID-19 pandemic.
Dan: Yeah. It's not totally clear to me the relationship between this set of critiques and what is actually going on in this case. Is that fair?
Will: Well, I think the relationship-- it's not the relationship in a literal sense that, again, this is sort of apropos what? His general complaint, which I'm sure will not be surprising in style or substance, is that since March 2020, we've experienced the greatest intrusions on civil liberty in the peacetime history of this country. Sorry, we may have.
Dan: Yeah. That "may" is doing a lot of work there. I want to talk about that thing he says in a minute.
Will: Governors and local-- Title 42 procedures are an instance of this. That's an instance of executive restriction of individual rights that has both a liberties component and a separation of powers component. So, in that sense, it's a piece of the general things he's complaining about.
Dan: Yeah. But it's not about enjoining those things. It's just about a procedural thing about whether to get rid of this court appeals order.
Will: Yes.
Dan: Yeah. Can we linger on that?
Will: Okay.
Dan: "Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country." What do you think of that claim? Unless you are being very parsimonious about what "may" means, is there any world in which someone can say that with a straight face that that can actually be true?
Will: I mean, so you're thinking slavery, Japanese internment-- I guess Japanese internment is not peacetime. He says peacetime.
Dan: That's fair. He may be thinking of it that way, but absolutely, that would count. The Red Scare stuff, is that Cold war? So, that's not peacetime. Even if you bracketed slavery, which would be an insane thing to do, there's a huge amount of other civil liberties restrictions that were present in the south in that time. Basically, they would jail anyone who criticized slavery. The post-slavery period, the Jim Crow period. I mean, that's insane. It's an absurd ahistorical claim. Did anyone actually go to jail for violation of COVID orders?
Will: I think he cites one. Well, he cites somebody--
Dan: He talks about threatened.
Will: In footnote 16, he cites somebody who was arrested.
Dan: He was arrested for holding church services despite a stay-at-home order.
Will: I don't know that he actually went to jail or not.
Dan: Yeah, okay. Maybe a few.
Will: Yeah. So, for this claim to be not absurd, I think you have to mean two things by it. I think one is you have to be focusing in some ways on the official legal story more than the consequences because there were very widespread legal restrictions. It's just that you didn't go to jail if you violated them and so on. Whereas a lot of the more severe civil liberties crises of our past, we followed through on more with the courage of our convictions. And he must have in mind something about breadth rather than depth. Like, it's true that there have been lots of times we've denied many, many more civil liberties to some disfavored subset of the country. But I take it what he has in mind as being unusual is that here we were doing it to everyone, and that's different. Maybe. I don't even know if that's true, but at least that distinguishes it from the obvious historical examples.
Dan: I guess this is the best you can do. I don't think that's normally how people would use language.
Will: Right. The other parts that talk about, "the breathtaking scale," at least that's, I think, the thing he's trying to get at. Now, it's not clear why that would be the right thing to get at. If you said, "Well, we violated everybody's liberty 20% versus violating 20% of people's liberty 100%," often we think the second thing is worse.
Dan: Yeah. I don't know. I think that is an insane claim. It's got your great uncle shouting while he's watching Fox News vibe to it. I don't know why that's in there.
Will: Well, why is the whole statement in here?
Dan: Yes, fair. But even if you're going to have this whole statement, throwing in that claim deprives it of some credibility. But this is a rant. Is that fair, to call this a rant?
Will: I think it's called a statement, Dan.
[laughter]
Dan: I know. See 598 US at 12, rant of Gorsuch J.
Will: It's a very funny genre. Well, here's a funny thing. It is very similar in substance and even in that specific civil liberties claim to a speech Justice Alito gave, I think, on Zoom to like a Zoom Federalist Society convention.
Dan: Yeah. Very similar language even. He said some claim that was like the most, but it was not quite as strong as this in my memory.
Will: And it didn't have as many footnotes. It's an interesting genre question. If you're a Justice and you have a thing you want to say, you can go give a speech to some organization that invites you. You can, I guess, put it in the US reports by calling it a statement. You can write it down in a book or an op ed. It's sort of interesting to think about what is the proper forum for this. Because at the time, I think people said, if Justice Alito has things to say about these cases, he should be saying them in the opinions or whatever like a normal Justice, not just giving speeches to the Federalist Society. But now that I see this statement, I don't know, couldn't this just have been a speech to the Federalist Society?
Dan: Could it have been neither?
Will: Well, fine, if you don't like the speech, you're not going to like it.
Dan: Well, if it involves opining on a huge swath of legal stuff that has happened and it's not actually clearly presented by the case at hand, maybe it's not appropriate for the opinion, but maybe it's also not appropriate for mouthing off in a speech. I just pulled up the Alito speech. Here's what he said, I think the language you're thinking of, "The pandemic has resulted in previously unimaginable restrictions on individual liberty." I think that is a much easier statement to defend just as a descriptive statement of fact than what Gorsuch is saying here.
Will: I think, look, mouthing off about legal issues not presented by the case isn't just for law professors. That's the thing. Maybe they should write law review articles. Maybe that's the right genre.
Dan: Maybe they should do neither. Maybe they should just wait till the cases come up and address them on the merits rather than just saying, "Here's my big takeaway." Also, he's got a theory of dictatorship and democracy in here, where he says, "Many lessons can be learned from this chapter in our history and hopefully serious efforts will be made to study it. One lesson might be this, fear and the desire for safety are powerful forces. They could lead to a clamor for action, almost any action, as long as someone does something to address a perceived threat. A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force. We do not need to confront a bayonet. We need only a nudge before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree."
And he goes on, he goes. He says, "Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear." I mean, that all sounds pretty bad.
Will: You don't like that? You don't find that stirring?
Dan: I guess I'm just not sure this is the right time for that. This case about whether to vacate an earlier decision because of potential mootness, is the opportunity to lay out your broad theory of when people sacrifice their liberties.
Will: And would you like it better if he publishes it as a book next year?
Dan: It can be neither. It doesn't have to be either/or. One thing that struck me was, "A leader or an expert who claims he can fix everything if only we do exactly as he says, can prove an irresistible force." That made me think of Trump. Wasn't Trump saying, "I alone can fix it?"
Will: I was thinking about that. Yes.
Dan: Is Gorsuch subtweeting his benefactor? Is he biting the hand that fed him?
Will: It wouldn't be the first time. Remember during the confirmation hearings, there was that whole--
Dan: Discouraging and disparaging or whatever.
Will: That whole thing where, yeah, Trump was denouncing authority of judges and Gorsuch subtweeted him.
Dan: Yeah.
Will: And I think we later learned, Trump seriously thought about pulling him at that moment.
Dan: Yeah. That would have been hilarious. Not for Gorsuch.
Will: I do think it's worth thinking about what is the best venue for judges to say things that we would rather them not say. It's not that we have to forfeit the [chuckles] just don't say it view, or "I don't agree with this view." But given how often we also have these form propriety norms questions, I think it is worth thinking about, if they're going to say it-- maybe the answer is we don't care. We don't want them to say it. But if they're going to say it, they can say it anywhere they want.
Dan: Yeah.
Will: I'm not so sure.
Dan: I guess it really is going to be pretty contextual based on what they're saying. The Alito speech, the Federalist Society speech, did we talk about that on the show? Maybe not. I don't remember at this point. He talked about the COVID stuff. I think he included some caveats about how he wasn't saying how he came down on any legal issues and things like that. But it did seem a little weird to be opining on these issues that were still coming before the court with some regularity. This was a couple of years ago. I don't remember if this is 2020.
Will: It was 2020. So, I do think a 2020 speech and a 2023 speech, obviously--[crosstalk]
Dan: About COVID, yeah. There's a lot. More action coming in 2020. The other stuff that's different that I objected to about that. He just went through a litany of complaints about all the hot button social issues cases the court had decided about how he was right. It was just a real red meat for conservatives' speech. I didn't think was totally appropriate in the big picture. But I don't know, it depends on what they have to say. Maybe this is within bounds. It just strikes me as a stretch to squeeze it in here. Like, he had this bigger picture thing he wanted to say and was looking for a venue for it.
Will: I do agree with that. And I do think it's hard to disentangle that from the substance. I assume there are other Justices we could imagine issuing a sort of trans-substantive statement about systemic injustices, or maybe we'd have a different reaction to it. I don't know. Maybe not you, because you're also very principled but a lot of people.
In Justice Gorsuch's defense on the merits, I do want to say one other thing, which is I do think there's this weird feature that was true of the pandemic law that is very unusual, where normally, the basic rule of a liberal society is that everything is permitted unless it's forbidden. And for a period of time under lockdown orders, the opposite was true. It was like, everything is forbidden unless it's permitted. And so that's why we had to have this bizarre legal regime of what is essential.
And that actually is part of what made the courts, like religious liberty jurisprudence, so fraught and weird during that period of time. Because normally you don't have to ask is going to church essential or is it just merely harmless and as long as you're not killing anybody, whatever. And even I remember in our own personal life, trying to parse the Illinois code and figure out, is hiring a nanny for my children so that I can teach on Zoom essential under the laws of Illinois or inessential--
Dan: Was it?
Will: [exhales] I take the Fifth.
Dan: We didn't bother with those legal niceties, but Missouri is a little bit of a less COVID-crazy state, I think.
Will: Well, we also had some people tangentially involved in our lives who were-- anyway, long story, not for the air.
Dan: You've got to maintain eligibility for that Supreme Court appointment, which is just around the corner.
Will: Well, it's not clear which way that cuts. I think apparently quite eligible for--
Dan: Yeah, fair. Like 15 years ago, it would have been like every Supreme Court Justice is supposed to be very careful and not fail to pay taxes on your nanny or your housekeeper or something. But if you were like the COVID-defying professor that would probably help you with Trump.
Will: If you tried to analyze the legal structure of COVID and the lockdown era seriously, I do think it's very bizarre. Now, the thing that makes Gorsuch's statement funny is that very few people for long took the legal structure seriously, which is maybe a different problem. And I still walk around and see all sorts of signs that are COVID related that nobody thinks are true or serious anymore. And that's degrading the rule of law in a different way. But I do think there's something--
Dan: I was at our hospital recently, and they still have these signs up from early March 2020 that are like, "Tell us if you've been to China." I was like, "I think it's a little late for that." Cat's a little bit out of the bag on that one.
Will: There is something weird that happened, even if I wouldn't have characterized it maybe in the same way or published it in the same journal.
Dan: Yeah, but what is the takeaway? He wants you to read this and come away thinking, like, "Gosh, we intruded on civil liberties a lot, and we should be more careful and protect liberty more and adhere to the tripartite separation of powers." That's what all of his stuff ultimately comes down to. That's his one big overarching thing, which is legislature legislates, and we do law interpretation, and the president follows the law. Basically, everything he writes ends with that base--
Will: Yeah, one big idea. It's James Madison's idea. I think there's a constitutional rights version of that too. I mean, I think some of his complaints--
Dan: But it's just the same thing.
Will: Well, then it's not separation of powers. It's like that no government should get to do it.
Dan: Yeah, I guess.
Will: I think the rule of law is-- [crosstalk]
Dan: Isn't he just like a positivist mostly, and he's like, "The Constitution says this, and we have to do what the Constitution says," at least insofar as what the judicial role is?
Will: Yes.
Dan: He doesn't think judges should just declare certain things out of bounds that aren't in the Constitution.
Will: No, I think he's a rule of law guy. So ultimately, he just thinks following the law, separation of powers, individual rights is really important.
Dan: Following what he thinks the law is, his own---[crosstalk]
Will: Getting it right. If you're a judge, it's good for that to be your one big idea, I think.
Dan: Yeah, it depends on what your vision is. I mean, he's just very, very, very focused on this, I think I've called it Schoolhouse Rock! version of government functions, which I think is just simpler than reality. And here he seems to be very focused on certain costs, but not benefits. He says, "Decisions announced on the fly are rarely as wise as those that come after careful deliberation." Maybe, but also sometimes they're emergencies that happen on the fly, and you don't have time to engage in careful deliberation. And the government needs to be able to react quickly sometimes. It's just these things are totally indeterminate, and there's arguments cutting both ways.
Will: He says that too. He says, "Sometimes, you need emergency decisions." I do think the timing, though, is part of the genre. Writing this now, I'm sure Justice Gorsuch has been saying similar things for years, since 2020. I'm sure in 2020, he and Justice Alito agreed about a lot of that stuff. But I feel there's this genre of during emergencies, often war, we do various stuff, and then towards the end of the war, people start saying, "Well, maybe that was a little much. Let's not." Which, I take it is partly a move in precedent setting, making sure to set lay down the marker of like even if that happened, "Let's not do the Nazi saboteur's execution again." Even with Lincoln, "Let's look some of that stuff over a little more carefully another time."
Komatsu, of course, comes basically at the end of the Japanese internment and then endo. But even the dissents there are partly laying down that marker of, "Let's be careful about whether we're going to authorize this in the future." And so, I feel like Justice Gorsuch--
Dan: Loaded gun.
Will: Yeah, is trying to participate in the same genre. This is trying to be like, now in the legally post COVID world, the COVID emergency being legally over, this will be a go-to statement, a go-to citation, at least for Justice Gorsuch, for the proposition that we shouldn't just carelessly import the things that were okay then to the next time.
Dan: Yeah.
Will: That seems fine.
Dan: Well, we'll see if he has reason to cite it. Thought the rhetoric here was a little overheated. I thought there's some stretches in here. And I don't know, I guess I don't quite know how to phrase this, but I don't know how I feel about judges-- It's one thing for a judge to say, "Here's this danger posed by this case," versus, "Here's this global set of concerns I have," linking together a bunch of different stuff, "I've looked at all these lower court opinions. I've read these news articles about all the stuff that's happening, and here's my take on this whole set of issues, many of which are not presented by the case before me." Is that fair to say that maybe we should think about those things differently?
Will: Well, to make sure I understand the distinction, when Justice Breyer went through the litany of reasons to be concerned with the death penalty and then stated his categorical opposition to the death penalty in the context of a particular case, does that raise the same concerns?
Dan: Maybe. I don't know. I don't think I've said anything about that statement.
Will: I wasn't sure what you're going to say.
Dan: I guess it depends maybe on what exactly the court has been asked to do.
Will: Okay.
Dan: Like maybe if someone has come in, the legal issue, is this impermissible as a matter of equal protection or substantive due process or whatever, or Eighth Amendment. And then, "There's all these arguments in play about here are all the problems." Maybe if it's just some random case, maybe not, I don't know. I'm not sure. I guess it relates to something else, which is like when it becomes clear, a Justice is acting with a broader agenda, so to speak, in a literal sense, that starts to make me uncomfortable because I think there are times-- I don't have the site in front of me. I remember reading an interview or something with Alito where he made pretty clear, like, here's what's on tap for the court in the coming years, we're really going to focus on religious liberty, sort of really suggesting like, "Here's the agenda and here's what's coming next for us." That may be a little uncomfortable. And so just to the extent the Justices sort of reveal, "I've got these big picture concerns, and this is a thing I want us to be working on across various kinds of cases," that makes me a little uncomfortable. I'm not sure why exactly.
Will: Right. But is it the substance or the disclosure? Because I think in some contexts, think of our ethics discussions, we think whatever's going on, we want to know about it. And then when we know about it, we can also judge it, but we want to know about it. So, if a Justice does have a worldview, general sense of things, maybe from a disclosure point of view, we want them to state it.
Dan: Right. But again, I think it would better maybe not to state it because it's not true.
Will: Well, I guess if the Justices believe things that are not true, we could think--
Dan: No, I'm saying I would rather them not have to disclose their broad agendas that they're bringing across the board because they don't have such broad agendas, maybe they're just deciding cases as they come up.
Will: You'd rather they not have broad agendas, but if they do have a broad agenda, do you want them to state it or not?
Dan: Probably state it.
Will: Okay.
Dan: Because I can still criticize them for having the agenda.
Will: Sure. But if you think of the dissent from an opinion, I'd rather people never dissent from correct opinions because the correct opinions are correct. But if they do disagree with the opinions, I would like them to say so rather than--
Dan: No one would dissent for an opinion they think is correct.
Will: Right, but there used to be a norm that you didn't dissent even when the opinion was wrong. A sense of better to keep your mouth shut. And I guess I don't share that view. And I also don't share that view about statements. So, I'm not saying that statements are not fair game or criticized. I'm not pulling Alito here. I'm just saying I'm not sure that the stating of it is the issue so much as them being wrong.
Dan: I'm saying this is troubling when they say it, because it's troubling that they have it. Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith. This is a very important copyright dispute, which is, as we were talking about in the preshow, you and I don't know a ton about, which for some people might hold them back in making this the marquee Supreme Court case they're going to talk about, but not us. Although I always defend my decision to opine on these cases without knowing a ton about the subs in the field, which is sort of what the Justices are doing too. It's not like the Supreme Court of Copyright. They're generalists and they have to dive bomb into these things, as do their clerks. And if we can't understand it, maybe that suggests that they're not understanding it properly.
Will: When I was an associate in practices, I used to say my main comparative advantage, is that I knew no more tax law than your average Fifth Circuit law clerk.
Dan: Probably other areas too.
Will: There are many areas of law that I don't know more about than your average Fifth Circuit law clerk. Hopefully, fewer now, hopefully, I've learned some things.
Dan: Well, also the average Fifth Circuit law clerk may look different post Trump than pre. You're not going to take the bait on that one. Okay.
Will: A lot of my favorite students are Fifth Circuit law clerks, I'll just say that.
Dan: This is a copyright dispute. Exactly what the dispute is about is a little complicated and I think contested in the case. But basic version is we have Lynn Goldsmith, who is a trailblazing-- according to the court, "Trailblazing female rock and roll photographer, captured some of the 20th century's greatest rock stars including Bob Dylan, Mick Jagger, Patti Smith, Bruce Springsteen, and as relevant here, Prince." She had photographed Prince, the Artist Formerly Known as Prince, because I think he came back around to being Prince before he died. Am I right about that?
Will: I believe you're right about that. The opinion describes him as Prince Rogers Nelson, and he was photographed in 1981.
Dan: Which is a cool name. And she had taken just a regular photograph of him. Subsequently, Vanity Fair hires Andy Warhol, extremely famous 20th century artist, Andy Warhol, to make an image of Prince using one of the photos by Goldsmith that Vanity Fair had licensed from Goldsmith and paid her $400 for. And then Warhol did that, and then he used that same photograph to make a bunch of 15 other additional works sort of built on that photograph using silk screens in his conventional style. He did that in other instances as well. He did famous one of those of Marilyn Monroe, Campbell's Soup Cans that pops back up in the opinion, and then he's no longer alive. His copyrights, I guess, are held by the Andy Warhol Foundation for the Visual Arts. And then subsequently one of the foundation licenses, one of these subsequent works again sort of ultimately drive from the earlier Goldsmith photograph to Condé Nast for a magazine story. But at that point, there's no license obtained from Goldsmith, no money that goes to her, and so forth.
Will: So, I think this is a tale of three pictures. One is the picture created by Lynn Goldsmith originally. Then, there's the picture and surrounding set of art created by Andy Warhol in 1984 based on that. And then the modern reuse of one of those pieces of art in the magazine.
Dan: Yeah.
Will: And the question is, does the modern reuse, through some chain of events, count as fair use rather than a violation of the copyright of Lynn Goldsmith? And the Second Circuit held that it did not.
Dan: And fair use, for people who don't understand it or are familiar with it, is like a safe harbor for something that would otherwise be infringing on someone else's copyright. There is this sort of idea of fair use. You're allowed to use stuff that belongs to somebody else in certain ways, but the contours of it are not super clear, seemingly by design.
Will: Yeah, I think it has both intentionally-- I mean, it's in the statute, but I think it has both a common law aspect that's going to be developed through four factors of there are lots of cases about it, and if you are a real copyright lawyer, you actually have a good feel for how it works across a range of cases. And maybe a vaguely constitutionally inspired aspect too, that if there were no fair use, we'd have to ask a lot more First Amendment questions sometimes about copyright law because it might sometimes run against the basic structure of free communication.
Dan: Like you couldn't write a book review that quoted a book or something.
Will: Right.
Dan: Couldn't do a parody of something else. All sorts of other things that would be bad.
Will: Part of what I find confusing in this setup is the majority and the dissent both frame what's at stake in the case in multiple ways, in very different ways. So, I think technically, according to the majority, the majority does not decide who wins, does not decide whether Andy Warhol has violated Goldsmith's copyright because this all started when the district court ruled in favor of Andy Warhol on fair use. The Second Circuit reversed saying, "No, it's not fair use." And then, Andy Warhol asks the Supreme Court to review one of four factors of the Second Circuit's decision, saying, "They really fundamentally got this piece of the case wrong." And the Supreme Court says, "No, they got that right." So, the Second Circuit--
Dan: But that means that Warhol loses.
Will: Well, it means that Warhol loses on this fair use defense. I think there are still other questions in the case. And it also means that the Supreme Court is not saying that the other aspects of the Second Circuit decision were right because it was only asked to review this one. They'll still be affirmed because they weren't appealed. But exactly how much is settled by this case is a little confusing. The dissent, which we'll talk about in a second, makes this into a really broad case with radical implications. And the majority sometimes is saying, "Well, we're not saying that's how we would resolve all-- We're not saying it's as broad as all that."
Dan: Right. The majority is saying, "This doesn't really tell us anything about what happened in '84. It's just about what happens today." Although it seems unclear whether you can really parse it out like that.
Will: Good. One reason this opinion is notable, and I hope we'll spend some time on it is just the style of the opinions. But maybe let's just try to break down the substance a little bit before we do the style. Does that make sense?
Dan: Yeah.
Will: Okay. Like you, I find confusing the way this is all broken down. So, the way I, a naïve, non-copyright lawyer, would think about this is, I want to know if the thing Andy Warhol did where he made 15 paintings by like squeegeeing paint over photographs. I want to know if that was okay. If that was okay, that was within his rights somehow, whether you call it fair use or whatever, then you would think that as the maker of those paintings, he now gets to license them. This is how I would think about this case. That is not how the majority thinks about this case. The majority says, "We are not deciding whether it was fair use for the original cover or the other paintings-- which are the original cover itself or photo itself had a license but the other paintings he made, we're not deciding whether those are okay."
So, it may well be that even though Andy Warhol lost this case, they can still keep all the stuff in the museums and even sell them to dealers, I don't know. But even if those were okay, he can't license a photograph of it to a magazine. Now, that's not fair use. I find that slicing and dicing super confusing.
Dan: Yeah. That seems weird. It seems like if he's allowed to create it, then at that point the link should be severed.
Will: Yeah.
Dan: But again, this is a non-copyright intuition, and that could be wrong.
Will: I think our intuitions are wrong under the statute. I think it might be right for who owns a copyright in the first place. Once you have the copyright, you can do stuff. But fair use, according to the statute, is based on the purpose and character of the use, and it's at least plausible that the use is context dependent. And so, using it to put a painting in a museum is different from using it to sell a license to a newspaper. In the same way, I think the majority is the example of, it might be fair use to put together a course pack for your classroom that contains a bunch of copyrighted law review articles, and it might not be fair use to then take the same course pack and sell it.
Dan: Yeah, that's interesting. That seems slightly different than making a new work of art, but maybe that's right. Maybe that's the right way to think about it.
Will: My course pack stand-- Steve Sachs's course packs are a work of art. Like, you read this--
Dan: I think I saw his syllabus of his originalism seminars. I cannot imagine how long he's been making that.
Will: It's like this is a Warhol, this is a Sachs. But it still might be true that he wouldn't be allowed to sell them. Just like Andy Warhol is not. But even if that's right-- again, maybe we're just disqualifying ourselves from covering this case, even that's right, I just find it so hard to get into that mindset.
Dan: Yeah. Just that even if it's okay to create something, then every time you have to do anything slightly different with it, you're subject to a new lawsuit.
Will: Yeah, potentially. Just like your predictions, Dan. It might be true, but I don't like it. Justice Sotomayor even gives the example several times of a book review. A book review that quotes the book is a classic example of fair use. Quote enough of the book, you might be infringing the book's copyright, but it's fair use. And I think under her view, if I quote a book a bunch of times to write a book review, not for compensation, just for, let's say, a law journal, or even better, just like a free website, that might be fair use. But if I then wanted to license my book review, like to be included in a case book, or to be included in a trade press book that's going to compete with the original book, I take it might suddenly stop being fair use. Like it would always depend on the facts or whatever, but you'd have to rerun the analysis every time. That seems like a terrible way to run a system of property rights. Normally, you want to figure out who has the rights and then let them do stuff with it. It probably is how our system of property rights works because copyright is sort of built on top of this common law, fair use thing.
Dan: Well, maybe it's not. I mean, maybe someone can tell us it's not supposed to work that way, but it does seem like that's where it's how it's going to be after this. Now, the dissent by Justice Kagan, one thing I think people are going to expect us to talk about is, this is a very pointed dispute between Justices Sotomayor and Kagan. Normal fellow-- typically fellow travelers. There is as much sharp language in these two opinions as you would expect to see in almost any other hot button, left, right, social issues, outrage-generating Supreme Court decision.
Will: Maybe more.
Dan: Yeah. It's pretty spicy. I think a lot of people-- this is the problem of being a cold take show is, by the point time we get here, people have already all zeroed in on the stuff everyone wants to hear about. Although I actually do my best to-- because I'm not on Twitter as much and I just try to minimize my exposure, so I'm not just recycling people's takes. But I did see everyone is focusing on this. Footnote 2 on page 4 of the Kagan opinion.
"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 "no reason" is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes. In any event, I'll not attempt to rebut point by 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 majorities, go take a look at that decision. Secondly, 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." Wow.
Will: Oof. It's quite a burn.
Dan: Yeah.
Will: It's a very self-confident burn, right?
Dan: Yes. Well, Justice Kagan is many things, but no one would ever describe her as lacking in self-confidence.
Will: Yeah. The sentence is very well written. Both rhetorically and just in terms of reasoning, you read it, it's powerful. It has tons of hypos, tons of places where Justice Kagan copies turns of phrase from various other artists and then makes fun of herself for copying them-- or makes fun of, I don't know, somebody, Justice Sotomayor for the fact that she's copying them because this is how things work, is you can write a good descent building on stuff that's existed before. And that's one of its big themes, is that this is how Andy Warhol became famous and Andy Warhol transformed 20th century visual arts. And this is also a deeply rooted part of other art like Shakespeare copying from other people and various studies of the great masters after one another and so on. What did you think?
Dan: I thought it was very effective. I'm still struggling to make sure I'm on top of the legal issues here, if that makes sense. Without knowing much about the area of law, I certainly found her more persuasive, and I certainly was worried about her predictions of calamity. About how basically this is going to lead to these really, really terrible downstream consequences that are going to discourage people from making art.
To the extent that the majority is trying to say we're not going to do that, it does seem like its response is not really persuasive because it's sort of like, "Oh, well, we're not really-- that's not really what this case is about. We're just deciding this small thing." And, of course, that's not true. Supreme Court doesn't take that many cases. When it offers its views on some area of law, it becomes like the thing that shapes the law for many years to come. Reasoning will be extrapolated. And it does seem to be like the takeaway is the court doesn't have a high bar for treating something as transformative. The court seems to think that there's not enough here in terms of what Warhol is doing with the original photo to bring it within fair use. Even though as Kagan goes through at length, this is clearly viewed as transformative in all these ways. And for the majority, it seems like at least as Kagan paints it, is like the reason what counts is just that they're both being treated as substitutes because they're both being used in magazines.
Will: Right. This is where it's weird. The majority again isn't denying that it's possible that the original Warhol photo and paintings were creative. They're just denying that the reprint is.
Dan: Yes.
Will: Now, again, that's confusing to me, but the copyright professors that I follow seem split on, is this just this is the way it works, or this is a calamity that will destroy the field? The copyright professors I usually trust the most tell me that this is just the way it works and that the majority is correct. It doesn’t mean they're right. [chuckles] But I do feel there's this way in which these Supreme Court cases on copyright also-- they have some sort of signaling or mood-setting value. The court doesn't take that many of these cases, and there are a ton of these cases given the stakes in the common law field. So, part of what's at stake in them is the copyright vibes that the lower courts pick up in various complicated ways, and that's hard for me to figure out.
Dan: Yeah.
Will: So, I have two narrow legal questions for you, Dan. One, in support of Justice--
Dan: Why me?
Will: Well, you're the only one around here. We'd get Steve--
Dan: Okay. [chuckles] I'm the wrong person to ask.
Will: One point, I think, in favor of Justice Kagan, as I understand it, is that part of what the majority is relying on is the sense that in this context, using this photo for the magazine cover, the Warhol is unfairly competing with the original Goldsmith. That it's like the use in this market, including the market for photos of Prince, for magazine stories about Prince. And the dissent makes this point that that is another factor in the fair use test. The first factor the fair use test is, is this transformative? Did you do something specially different that it's not just a rip-off? But factor four is how much is this going to interfere with the market for the original? Which is often very relevant because you're like, not that many people are going to buy the book review instead of the book or whatever. So, did it seem right to you? Is Kagan right that that was some sort of weird double counting or some sort of weird bleed over?
Dan: Yeah, I was wondering about that. It maybe is or maybe isn't, but you could have different factors, and the factors turn on things that look similar. And it might be that whether it's being treated as a substitute is also proxy for the purpose and character of the use.
Will: Yeah, right. I guess that's true. Maybe that's part of the-- just goes back to the artificiality of this case and it goes back to this point that, I guess, Professor Ben Johnson's made more than anybody else about how the Supreme Court now resolves questions rather than cases. Like, once upon a time, the idea was that the court was supposed to take a case and resolve the case. We now very much have this idea that it curates out one question in the case and answers that, which is, of course, a good use of resources. But sometimes, like this, that can be very confusing. Like, what's the relationship of this question to everything else that's going on in the case?
Dan: Yeah.
Will: Okay. So then, seems to be the hardest problem for the dissent, which is a big problem is, what do we think about taking a book and making it into a movie? I think that is the classic example. Copyright people-- certainly like current economics of Hollywood, assume that you need the permission of the book to make the book into a movie. Even though movie is transformative. And especially there are lot of movie directors who are Andy Warhols. And the majority has the example of Martin Scorsese's recent film, The Irishman. The Irishman is just recognizably a Scorsese, but they say he's still got to license the book. Does the dissent agree with that? They think Shakespeare didn't have to license the earlier stuff he wrote about.
Dan: I thought that was the strongest argument in the majority, and I wasn't totally clear what the response was. Is there an argument that could just be dealt with using the other factors? Look, even if that factor goes one way, the other factors can go in a different way, there's a footnote on pages 12 to 13, responds to that a little bit. Walk through that if you've got a second with me, take a look at that.
Will: Yeah. Okay. Justice Kagan says, the fourth factor has to use the majority's repeated example forced many a filmmaker to pay for adapting books into movies, as we noted two terms ago. So, the fourth factor is the one about sort of are you competing with the original author's market.
Dan: Yeah, but why is that true? It's a different market, the market for films, the market for books is different. If anything, someone making an adaptation of your book will sell more books, won't it?
Will: Yeah. Although is that assuming that you would have otherwise made the adaptation? Are we assuming our own conclusion here?
Dan: I guess. But you wouldn't have filmed it yourself.
Will: Yeah. I agree. I find this unsatisfying. If we live in a world where we assume that part of writing a book in a certain genre is also going to be to get the movie rights, then of course it's right to letting somebody else make the movie, taking care of those rights. But that's less obvious if we don't just assume our own conclusion.
Dan: Yeah.
Will: I found that answer therefore puzzling. And telling, maybe?" In some ways, taking the dissent seriously, I think, would suggest that Andy Warhol should be able to make movies about books. And I don't mind that as a policy matter, but that would be quite a wild conclusion.
Dan: Yeah, I think a lot of people would think that.
Will: Yeah. Or else maybe you're supposed to-- maybe it depends on the movie. There are some movies that are just a cold adaptation of a book, and there are some where you're like, "Oh, wow, this movie--" There are some that are so different from the book, they're very different. And there are some where it's like, "Well, it's Stanley Kubrick's Lolita," and maybe that adds enough to Nabokov to count as transformative.
Dan: Did you like the Lolita commentary in the Kagan opinion, by the way?
Will: Well--
Dan: That was on page 27. Nabokov is one of my favorites.
Will: Mine too.
Dan: I didn't or had forgotten this backstory that there is a pre-Lolita story by Heinz von Lichberg written a few decades before the novel, Lolita, that involves a very similar plot and also a young girl named Lolita. So, almost clearly cribbed by Nabokov.
Will: Well, not cribbed so much as inspired, I think.
Dan: Yes. Fair.
Will: Because the Nabokov version--
Dan: Yeah, maybe, it's homage. Sometimes --
Will: Or even reversal.
Dan: Yeah. This is an aside, she says, "Lolita, though hard to read today, is usually thought one of the greatest novels of the 20th century." So she's conceding that Lolita has been canceled. Is that sort of the idea? I think it's still a great novel.
Will: I agree, it's still great.
Dan: I could read it today. Maybe some people can read it today.
Will: But I thought that was an--
Dan: Am I in trouble for admitting that?
Will: I thought that was an unusually PC move on Justice Kagan's part.
Dan: Yeah.
Will: And I admire your willingness to question it. Is it your favorite Nabokov novel or--?
Dan: Pale Fire.
Will: Yeah. Okay.
Dan: What's yours?
Will: Ada is my favorite novel, period.
Dan: I'm going to confess, that's one or two I never got through. So, I'm going to go back to it now.
Will: It's almost unreadable. It's so confusing and long.
Dan: So, I feel a little bit better you said that.
Will: I've read it about 40 or 50 times to try to make up for everybody else's inability to read it.
Dan: Really? How long does that take you each time?
Will: It's faster and faster. I haven't read it in a while. I should do that.
Dan: It's on my shelf. So maybe, I will be inspired tonight, which probably means I'll get about 30 pages in and fall asleep.
Will: Once you get to the secret code, then you're either in or you're not.
Dan: Okay. Big fan of his short stories too. Although those you often have to go read his commentary at the back of the book to figure out what was going on in the story.
Will: I have a book of his chest problems, which I enjoy.
Dan: Are you a butterfly collector?
Will: I don't have any butterflies.
Dan: That's probably for the best. It's a gross hobby because you'll have killed a butterfly.
Will: This brings me to one of my theories of Justice Kagan's dissent, if I can.
Dan: Okay.
Will: I feel one of themes in the litigation is like the Andy Warhol effect. Part of what's going on is, it's Andy freaking Warhol. Like, if he's not transformative, what is? And that's sort of what the district court thought. And then, some of the majority is responding almost hostilely to that. You don't get more copyrights just because you're famous. The little guy also gets rights.
But I wonder if part of Justice Kagan's fire in this dissent is the same thing. It's like Andy Warhol is a great artist. So whatever the law, he just deserves to win. And Justice Kagan is a great artist. Her dissent feels right. Reading the dissent is just like, "This has got to be the law." Even if it's not actually the law, the greater artist, she is the Andy Warhol of the Supreme Court. She deserves to win even if the law is not on her side. And I think she feels that way.
Dan: I don't think that's how she would describe it to herself. She was like, "I'm wrong, but I deserve to win because I'm a better writer," if you were to ask her, what do you really think in your heart of hearts?
Will: But there are these dissents. There's dissents you write where you're like, "How can this dissent not win?" The dissent is just so good.
Dan: You just get increasingly mad because you're just so persuaded by yourself?
Will: Yeah.
Dan: But she thinks she's right.
Will: I hope so.
Dan: It would be weird if she would spend all these pages, 40 some pages or whatever it is, if she thought she was wrong.
Will: No, I hope she thinks she's right. And I hope that she thinks she's right also. Also, this descent is joined by one Justice and one Justice only, Chief Justice Roberts, I think making it the first Kagan-Roberts solo or pair dissent, but just in terms of the passion behind it, I wonder about that.
My other theory, slightly more serious, is I wonder if the low stakes and the non-ideological nature of the case actually made it easier for her to cut loose like this. I feel a case like Dobbs or any political case, you've got to make a lot of decisions, do you want to emphasize how disastrous the majority is, or is that only going to make it worse? Do you want to further alienate the Chief Justice and Justice Kavanaugh, who you're hoping to work with the next time, limiting the damage or whatever? The politics hamper your swing. And in a case like this where it's important, but there's no chance that she and Justice Sotomayor are going to stop being part of the same coalition, and it's just not in a way the political stakes are lower. Maybe it's just more freedom to just go for it.
Dan: Yeah, I guess. But it's pretty hostile. It's surprisingly hostile. And yes, they're still going to vote together in the big cases, but I don't know. They do have to cooperate a lot.
Will: Yeah.
Dan: I don't know. It seems weirdly angry.
Will: It seemed to me like it was having fun more than angry.
Dan: Really, that first footnote?
Will: Okay, the first footnote is cold.
Dan: The majority is pretty aggressive. So, if you look at footnote 10, page 21 of the majority, it says, "The result is a series of misstatements and exaggerations from the dissent's very first sentence," quoting the first sentence, "to its very last." That's pointed.
Will: Yeah.
Dan: I mean, accusing another Justice of misstatements is like basically like accusing them of lying, right?
Will: No, I think it could be wrong.
Dan: Yeah.
Will: But they do accuse the dissent of sleight of hand. I hope we're still alive when whoever's papers open up that let us see the first draft of this opinion because it seems clear, this is one where there's a first draft of some kind. There's this hot dissent that maybe was seen as devastating, maybe was seen as not devastating, but whatever, it required serious response. Sometimes, that also means you actually have to really change the majority opinion in a substantive way. I don't know if that happened or not. That's one of the things I'd be interested to find out. And then, you also sort of fire back a lot. And then, you're in the position of the dissent, do we keep going back and forth or do I just content myself that I've taken a really good shot and we're just going to leave it at that? So, I'd be curious to see.
Dan: One clue is that if you look at that Kagan footnote that I read earlier, she says, "I'll mainly rest on my original submission." So, I take that to mean maybe she wrote the dissent, the majority came back with a bunch of criticisms and responses. And she was basically like, "No, I'm good. Let me just put in this footnote." Rather than go through it line by line and revise it. Is that a fair reading of what she's saying there?
Will: That’s what I think she said.
Dan: Original? Yeah.
Will: Right. And, of course, the same is this is an interesting thing too, is that there's some authors of majority opinions are much more like that. Some Justices' tradition of never or almost never firing back against the dissent. You let the dissent say what they're going to say, but you got your votes, you don't need to do anything. You just rest in your original submission. Obviously, that's not the path Justice Sotomayor is picking in this case.
Dan: And then, should we say anything about the Gorsuch--? There's a Gorsuch concurrence joined by Jackson.
Will: Yeah. Well, this too, I wonder how did this emerge? To what extent? It says a bunch of things, to what extent were they always consistent with the original opinion or not? The Gorsuch opinion seems to be stressing even more than the majority opinion, how narrow the question they're confronting is.
Dan: Yeah.
Will: It's just about this use. And the question is whether as a statutory matter, you're supposed to ask only about this use or ask about the broader thing. And here are some reasons to look at this use. And then it even says Warhol might win this case one day.
Dan: Yeah, I'm not really sure why. If he loses on all the fair use factors, I guess there's still this question of, is it infringing?
Will: Yeah. He says, this is page 5 of the concurrence. "To uphold a claim of infringement, a court must find that the defendant copied elements of the plaintiff's work that are themselves original." And thus, citing this old case about telephone books or something, directories. "And you must show not only a similarity, but a substantial similarity between the original elements of the original copyrighted work." So, I take it the idea is maybe we'll just say the original photograph is not that original, and therefore-- there's a way in which the Warhol could have been based on anything. It's just like a stock photo of Friends that just looks like Friends. Maybe, it didn't copy the original parts of that photograph. I haven't thought that through. And again, we don't know any more copyright law than we did 45 minutes ago, but that seems a little wild to me. But interesting.
Dan: He also sneaks in his favorite theme. He says, "Worried about the fate of artists seeking to portray reclining nudes or papal authorities." That's referencing part of the dissent that we didn't really go through. There's tasteful nude photos. There's this really cool painting by Francis Bacon which modified this earlier painting of a Pope. Check it out. "Or authors hoping to build on classic literary themes? Worry not. This case does not call on us to strike a balance between rewarding creators and enabling others to build on their work. That is Congress' job." So, we're back to the separation of powers. What judges should do? I didn't find that reassuring at all. Well, I mean, the question is, what does the statute mean? And the court could be getting it wrong and striking a balance in a really bad way.
Will: Of course, I agree that it's Congress' job to decide what the law should be, but I do think the effectiveness of that move depends a lot on the context.
Dan: Yeah. And also, if it's a move you pull in every single opinion you write, it becomes less persuasive over time. You pick your spots.
Will: Somebody said that once about Justice Gorsuch.
Dan: Yeah. I'll say it again.
Will: Careful, Dan. As you mentioned, these opinions have a lot of pictures, including, I think, the first nude pictures in the Supreme Court reports. Do you think it will be fair use to reprint this opinion and the pictures in a casebook. The Supreme Court's allowed to put the nude pictures in the book because they're at its fair use or something. There's an implied license or something like that. But if Justice Gorsuch is right, if Justice Sotomayor is right, that we have to reconsider fair use every time, then every time anybody quotes or reprints this opinion, we have to ask the fair use question again. And maybe it would not be legal. And of course--
Dan: Yeah. That's concerning.
Will: And if Vanity Fair wanted to print on their magazine cover a screenshot of a page of the Supreme Court opinion, would that be fair use or not?
Dan: That’s concerning. Is there some defense for publishing government documents?
Will: Yes. Well, government documents can't be copyrighted.
Dan: Yeah, but the stuff in them could be, I guess.
Will: Yeah.
Dan: We need a copyright person. We need one of your trusted copyright people. So, I'm not going to say anything further.
Will: I'm sure one of them will listen to the show, hopefully, this is the only thing that will require correction.
Dan: I'm not sure. We've got like 12 listeners, so the odds that one of them is a copyright professor, fairly low, but maybe.
Will: Well, copyright professor--
Dan: We've got at least 460 because that's how many rankings we have, ratings we have on the podcast store. Presumably more.
Will: Can't people leave rating multiple times or no?
Dan: You'd have to create multiple Apple accounts, which is actually harder than it sounds.
Will: That's what I've been doing wrong.
Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Please remember to rate or review the podcast, preferably favorably on the Apple Store or wherever you get your reviews.
Dan: And check out our website, dividedargument.com, for transcripts of the episodes that come up fairly soon after we publish. store.dividedargument.com for merchandise, proceeds of which I have thus far withheld from Will, but will eventually give to him in some form. And if a long time goes by before we record another episode, it's because we're mired in copyright litigation about whether our takes are fair use of information about the Supreme Court.
[Divided Argument theme]
[Transcript provided by SpeechDocs Podcast Transcription]