OPINION: This article may contain commentary which reflects the author’s opinion.
Supreme Court Justice Elena Kagan appeared to take a shot at her colleague Justice Sonia Sotomayor in an opinion released on Thursday. Both liberal justices were appointed by former President Barack Obama.
In a 7-2 decision, the Supreme Court found that the Andy Warhol Foundation infringed on a copyright of a picture taken by photographer Lynn Goldsmith. Justice Kagan and Chief Justice John Roberts were the only two who dissented from that opinion.
In her dissent, Kagan wrote that she wanted to offer “one preliminary note” and took a not-so-subtle shot at her liberal colleague, Justice Sotomayor:
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.
Several legal reporters took to Twitter and highlighted her spicy comments:
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
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
In a separate ruling on Thursday, the Supreme Court passed up the chance to take a case that many believe could have changed social media and the Internet forever.
The nation’s highest court did not take a case that could have clarified the scope of the federal liability shield known as Section 230, which protects internet companies from many legal claims regarding content posted by users.
“In a pair of rulings Thursday morning, the justices shut down lawsuits seeking to hold giants like Google and Twitter liable for terrorism-promoting content on their platforms, but the court nixed the suits without issuing any sweeping pronouncements on the immunity provision that has come under increasing fire from both Republicans and Democrats,” Politico reported.
“The cases mark the first time the high court dealt with Section 230 of the Communications Decency Act, the 1996 law that gives internet websites broad liability protections for most third-party content posted on their sites. It marks a major win for tech companies that have argued narrowing their decades-old liability shield could be disastrous for the internet, leading to a greater influx of hate speech and extremist content online,” the outlet added.
In October 2020, Supreme Court Justice Clarence Thomas took issue with Section 230 in a dissent in the Malwarebytes Inc. v. Enigma Software Group USA case.
“Courts have long emphasized nontextual arguments when interpreting 230, leaving questionable precedent in their wake,” the justice said. “Extending 230 immunity beyond the natural reading of the text can have serious consequences,” he added, and specified his concern about giving companies immunity from civil claims for “knowingly host[ing] illegal child pornography” and “for race discrimination.”
“We should be certain that is what the law demands,” he said.
Back in March, Professor Adam Candeub, who led President Trump’s efforts to reinterpret Section 230, argued that the protections essentially give Big Tech a “get-out-jail-free card” in censorship lawsuits.
Candeub warned that the case rejected by the Supreme Court this week could unintentionally allow censorship given more platforms would be liable for the content they refuse to take down or fail to take down quickly enough.