Sotomayor and Kagan

I do not know enough copyright law to comment on Andy Warhol Foundation v. Goldsmith (I hope one of my colleagues will write something on it). But what is happening between Sotomayor (for a 7-person majority) and Kagan (dissenting with Roberts)? Their exchanges seem uniquely sharp and direct and personal (each accusing the other of being, essentially, clueless about the law), especially for a non-political case between two justices who tend to agree on things.

The majority refers to "the dissent" more than 40 times and responds to points in 11 footnotes.

Kagan ends the intro to her dissent with the following footnote:

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 come-back 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.

I also wonder how much Roberts influenced the dissent's style. The opinion is loaded with references and allusions, a common feature of Roberts' writing (even more so than Kagan). The two together cannot help themselves. Unsurprisingly, the dissent is a fun read (again, I pass no judgment on the correctness of its analysis).