Justice Elena Kagan’s dissent in Andy Warhol Foundation for the Visual Arts v. Goldsmith strikes us as less a run of the mill demurral than something of a watershed in her time on the bench. She pointedly sets herself against the court’s other liberals, in particular Justice Sonia Sotomayor. Then there is her alignment in dissent with Chief Justice Roberts, which, though we don’t want to make too much of it, strikes us as newsworthy.

Justice Kagan makes her move in a case where the court, by a seven to two vote, found that the artist Andy Warhol’s appropriation of photographer Lynn Goldsmith’s images of the musician Prince violated fair use. Justice Kagan used this copyright case with colorful facts to issue a manifesto about art and creativity. In effect, she casts her opponents — among them Justice Sotomayor — as Philistines untutored in the law’s letter and spirit.

We wonder if the Chief joined her not only because he found her reading of the law persuasive but also because he admired her swashbuckling cultural virtuosity — her dissent reads more like an essay by, say, the English critic and polymath John Ruskin than a discourse by Judge Learned Hand. She chides the majority for its “lack of appreciation for the way” Warhol works. One can imagine her expounding at MoMA in her New York brogue. 

We perked up at her emergence in dissent with the Chief Justice because of the odd situation that obtains at the Roberts Court. The chief appears as a leader without a following — alone in, say, his middle-way opinion in, in Dobbs, the most controversial of the court’s recent rulings. He’s a centrist with a left flank that wants little part of him and a right flank of which he wants little part. Has he found a kindred spirit in Justice Kagan?  

Justice Kagan’s closing peroration seems less about copyright than about a larger point — the danger that, she argues, the Warhol decision “will stifle creativity of every sort” and “impede new art and music and literature.” Or even “thwart the expression of new ideas and the attainment of new knowledge” and “make our world poorer.” She references Titian and Manet, and her dissent is illustrated with images, making it a feast for the eyes, too.   

Justice Kagan minces no words. She writes that the “majority opinion is trained on this dissent in a way majority opinions seldom are.” Does that, she wonders, make the majority opinion “self refuting”? She tallies the “pages of commentary and fistfuls of comeback footnotes” the majority deploys to back up her argument that Justice Sotomayor et al have adopted a “posture of indifference” to the working of the Muse in Andy Warhol.   

Justice Kagan warns her “readers” that  “when you see that my description of a precedent differs from the majority’s, go take a look at the decision.” For the law, this is a jab to the solar plexus. She’s not finished, however, urging her faithful readers to “ask yourself about the ratio of reasoning to ipse dixit.” That Latin phrase means an assertion without proof. This makes the dissent in Dobbs v. Jackson Women’s Health look relatively cordial.

Justice Sotomayor suggests that Justice Kagan is more interested in “tracing the history of Renaissance painting” than stating the law. “The Lives of the Artists,” she grumbles, “undoubtedly makes for livelier reading than the United States Code or the United States Reports, but as a court, we do not have that luxury.” Forgive us for wondering whether the dissent could prefigure a day when lawyers read Vasari, brief on Botticelli, and tremble before Chief Justice Kagan.