The three liberal justices on the Supreme Court were split over a patent case involving artist Andy Warhol’s work, resulting in a rare 7-2 lineup.
On Thursday, Justices Sonia Sotomayor and Ketanji Brown Jackson joined the conservative majority in the decision on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Justice Elena Kagan dissented, with Chief Justice John Roberts on her side. Roberts, a George W. Bush appointee, is considered a conservative, but has increasingly become the court’s swing justice.
The split comes at a time when the Supreme Court’s partisan divide has become increasingly obvious by recent polarized decisions. Liberal justices have stuck together more often, playing defense against the court’s 6-3 conservative majority.
“It is relatively rare for the three liberals to be split and even rarer for them to split and have the dissenting liberal justice or justices joined by a conservative Justice,” Alex Badas told Newsweek. He is an assistant professor of political science from the University of Houston who specializes in judicial politics.
Since 2020, when the Supreme Court shifted from a 5-4 conservative majority to a 6-3 supermajority, 61 percent of the cases in the 2020 and 2021 term resulted in a dissenting opinion. The liberal justices were split on only 21 percent of those cases, or 13 percent of all cases, according to the Washington University Law’s Supreme Court database.
The Warhol case asked justices what makes a work of art “transformative” under copyright law. Photographer Lynn Goldsmith was suing the Andy Warhol Foundation, the successor to the artist’s copyright, over a series that Warhol created using a 1981 photograph of the singer Prince that Goldsmith had taken for Newsweek magazine and copyrighted.
The foundation raised fair use as a defense, claiming Warhol “transformed” the original image by giving it a new “meaning and message.”
In its decision, the Supreme Court sided with Goldsmith. It found that the two works of art “share substantially the same purpose” and ruled that Warhol did not make fair use of the photo.
“Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Sotomayor wrote for the court’s opinion.
However, Kagan, who penned the dissent, stood up for Warhol’s artistry. She described him as “the avatar of transformative copying” and pointed out the artist was well known for work that “reframed and reformulated—in a word, transformed—images created first by others.”
Kagan wrote that the ruling was “troubling” for other, less-famous artists who would be unable to benefit from fair use under the court’s decision. She said that the ruling “will stifle creativity of every sort.”
“If Warhol does not get credit for transformative copying, who will?” she asked.
Badas said the split in this case was less surprising because it was not one involving ideology, which is where liberal justices are more likely to vote together.
“We don’t see these splits on abortion, affirmation action, or voting rights,” Badas added. “On these more technical questions of the law, the justices are more likely to split in ways that do not follow the standard ideological conventions.”