Advisory Opinions - Warhol Brings Down the House

Episode Date: May 23, 2023

-Ukraine, through the eyes of Mr. French -The Andy Warhol copyright skirmish -The Progressive Justice League turns on itself -Title 42 and civil liberties: The Gorsuch statement -The future of Justice Jackson -A Republic of Suffering Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger and David French is back. We will start with his trip to Ukraine. And then we're going to divide up the Supreme Court opinions from last week in a way that I did not think we would. But we're going to start with the copyright act case heard around the world. There were footnotes. There was shade. There were weird combinations, let's say, of justices.

Then we will turn to the Gorsuch Title 42 statement. It's a statement, all right. And then we'll save Twitter and Google for the next episode, as well as a little patent law, because why not? Yeah, yummy. David, why don't you start by telling us,

I mean, we know where you've been now. Yeah. Yeah, so I got the chance to go with a small group of people, including Max Boot at the Washington Post, Corey Shockey, AEI, a number of other folks, former Senator Heidi Heitkamp and former Ambassador Bill Taylor, who's former ambassador to Ukraine. And by the way, if you ever get a chance to travel to Ukraine, travel with Ambassador Bill Taylor. I compared it to traveling with Bono. People love him in Kiev. But I got a chance to go and spend, frankly, a lot of time talking to a lot of folks who are at the highest levels of involvement in the war. So defense minister, foreign minister, U.S. ambassador and her team. I mean, I can talk about these conversations, any one of them at length, including talking to Ukrainians who had their own really incredible

personal story, who are trying to be involved in everything from bringing entertainment to the troops at the front line to finding all of the hundreds, Sarah, hundreds of Ukrainian orphans that the Russians have kidnapped, for lack of a better word. I mean, I could just go on and on talking about all of the things that I learned. And this was not a trip,

like there's just this recent article from The New Yorker that we can put in show notes that I would urge everyone to read, which was a guy literally in the trenches for two weeks, unbelievable courage reporting on the situation from the front. My situation was different. I was in Kiev. I was talking to sort of the grass tops of the war, not the grassroots of the war, if that makes sense, but also experienced what life is like in Kiev for a week. And it's surreal, Sarah. So you go there and the first thing that strikes you

is that, oh, everything's working and open and there are families with kids and they're strolling through the streets, the schools are open, restaurants streets. The schools are open. Restaurants are open. Shops are open. It feels like you just came into sort of a, it's a pretty big city, a very big city. But it looks like you just came into a place that is totally normal, except then you'll

go down a block and then there's an apartment building just crushed. Or you'll see one of the central high rises with a ton of the windows blasted out. So you see the signs of the war everywhere. But if you're not, if you didn't see that when you're there, you would think this is totally normal. Like what's, there is not a war on. And so you're eating at a good restaurant,

you're meeting with people in normal circumstances, everything seems normal. And then it's after midnight. And for a while, Sarah, the way the Russians were conducting the war, they had largely backed off from attacking Kiev and they had what they off from attacking Kiev. And they had what they called Missile Mondays.

And this was when it was about once a week when the Russians would send drones, missiles, et cetera. And that was sort of the rhythm. But then it's escalated now to almost every night. And every night that I was there, we had an air raid warning. We had an air alert. And so 1 a.m., 2 a.m., the first night we were there, 3 a.m., the sirens sound all over the city, and you then just start waiting.

So you wait to see what's coming and what's happening. And the first night that we were there was by miles the most eventful on that score because we were there the night and many listeners might have seen this when the Russians launched a bunch of Kinzhal hypersonic missiles at Kiev. And we were told before we got there, one of our traveling companions

who's been in Kiev for, or been in Ukraine, often at the front for a long time said, here's how to think of Kiev. It's Warsaw with air raids or air raid alerts. By day, everything seems normal. By night, you've got the air alerts. And then he kind of told us what to expect, what the air alerts are like, and the air defenses have really improved and everything is sort of more dealt with on the periphery of the city. And then that night, holy smokes,

you were just a spectator to something I didn't really expect. And that was the Patriots versus Kenzal confrontation. And our hotel, on one side of the hotel, you could see the Patriot launch. And when Patriots launch, they're different from the other anti-aircraft missiles. These are big missiles. I mean, there is no mistaking them when they go off. So on the one side was the whoosh of the Patriots. On the other side was the boom of the interceptions. And so for several minutes, it was unlike anything we were told to expect.

I mean, you knew something really significant was happening. And at the end of it, what we realized was, wow, that was the first large-scale confrontation between hypersonic missiles and US-made air defenses. And it occurred just right over the city. And thank God, the Patriots prevailed. I mean, they shot down all six of the Kenzals. One of the batteries was damaged,

but reportedly brought back into operation right away. And that was our first night. But I wouldn't say that you sat there and you felt, you didn't sit there and sort of feel like, I'm in major danger right now. It's a big city. You have a bunch of people there. It was just, you felt like this is,

something significant is happening. And it wasn't until hours two, three, four, five after that you realized sort of how significant it was. But there's so much there. I was drinking from a fire hose, 14 hour days, 15 hour days. I mean, just kind of any thread on the war you want to pull. I feel like I know 75% more about it

than I did before the war. And I mean, not before the war, before we got there, from the strategic situation to the humanitarian situation to the rule of law situation. I mean, and then just the basic way the people of Kyiv are responding. But yeah, it was one of the best trips

as far as most informative, most impactful that I've ever been on. At the same time, it was surreal. That's the only way to say it when you're talking about the contrast between the horror that's happening in the East, the normality of life during, say, 18, 19 hours of the day in Kiev,

and the weirdness of the four or five hours of air attack. It was just, yeah, it was a remarkable experience. So let's just review for a second. I took time off this month to go to a 160-year-old battlefield to learn all sorts of things about that. And then you were like, hold my beer. I'm going to a current one.

How dare you, sir? How dare you one-up me in this respect? I do have some questions. Sure. What is the point of the air raids if there's nothing you can do and nowhere really for you to go? Well, so the point of the air raids

from the Russian perspective is- Sorry, I mean the sirens. Oh, the sirens. Oh. Yeah, why are they waking you up? No, there are things you can do and there are places you can go. So they have subways, for example.

So this is very London in the Blitz. Except London protected by Patriot missiles. Yeah, that helps. Yeah, that helps a lot. How many people do you think are going to the subways versus just being like, meh, I kind of trust the system. I mean, you stayed in your hotel room. It's more meh because it's really, it's not a thousand or hundreds of German bombers flying over to flatten huge areas of the city. It's more like a bunch of cruise missiles heading

towards specific targets, or maybe not, just sort of randomly falling where they might fall. And so it's this really big city. And so the odds are always in your favor because it's just a really big city. And, and so there's this sort of sense of, well, if it comes, it comes. And then sometimes there's also what I also what I started calling rumor Twitter. So there's really good, at least what seems like really, really good real-time intel about what you're dealing with. So the air raid will go off and then there are certain telegram channels or Twitter channels you can follow that will say what's coming. And then as soon as you know what's coming, you know kind of how alarmed to be.

If it's just drones coming, then you feel really good because the drones get shot down. If it's just cruise missiles coming, you feel pretty good because the cruise missiles generally tend to get shot down. If it's the Kinzhal missiles coming

before the Patriot attack, it's like pucker up time because those things are extremely fast, extremely powerful, extremely destructive. And so there's sort of a range of ways that you respond to it. Range number one, which most people choose, unless there's like really extraordinary information about what's incoming, is they just wait it out. Option number two,

I kid you not, Sarah, get in the bathtub. Yeah, same as a tornado or something there. There's stories of people being in apartment buildings hit with direct hits, surviving direct hits because they were in the bathtub. You want the bathtub with a mattress though, right? Yeah, if you're going to stay there at any length of time. No, no, sorry. I mean a mattress though, right? Yeah, if you're going to stay there at any length of time. No, no, sorry. I need a mattress over you, not under you. Misinterpreted. That'd be hilarious to get the mattress under you in the bathtub and just be like, this is where I live now.

Okay, I've got mom questions though. Because my first thought, so while you were gone, David, my neighbors, and you know where I live, it's like not just suburban. It's like old people central. We are the youngest people by far in this area. Anyway, our backyard neighbors decided to throw a rager. And they were being very, very loud until four in the morning.

Four in the morning. Wow. My mom rage was at a 10, maybe an 11. Uh-huh. We can just skip most of that story, except to say that when I think about those air raid sirens, if you're not going to do anything and you're not going to go anywhere,

I would be so angry that every night they're waking up my baby. Yeah, yes. So that really gets to an important part of this. So even if you're not, it's wrong to compare it to London under the Blitz just because of the lack of ability of the Russians to inflict the same kind of damage. They had the, make no mistake, the Russians would have no qualms about flattening Kiev. I mean, heck, they have flattened tons of cities in the east and towns and cities in the east. cities in the East, in towns and cities in the East, they have no qualms about flattening keep. They just don't have the ability to do it. But what they do have the ability to do is make every night an air raid night. And they really have stepped that up in May, really stepped it up. And so people try to figure out, okay, how do I just go ahead and sleep through it? And so what

people will do is they'll just figure out a way to do it. But a lot of times you see people coming in, they're kind of bleary-eyed, you know, and everyone's sort of got a story. If it's a more significant night than the night before, then people sort of say, where were you? Did you see anything? And there's this whole conversation about it.

But at the same time... I mean, that's what's wild if you're a waiter at a restaurant, you know, a mom who waits at a restaurant, you got to still go to work the next day, chop the vegetables, get stuff going. And like, not only do you have a young child, but like, you've been woken up by the air raid sirens, young child's been woken up by the air. I don't... That sort of doesn't compute to me on a just, it's every single day and there's no end in sight. Yeah, I know. And they just get accustomed to it.

And what I would say is accustomed in an endurance sense, there was a lot of conversation about, and they wouldn't use the phrase after the war so much as after the victory, which I found really, because there's a whole thing to talk about, about the level of conviction that you felt over there. So they would say, after the victory,

we're gonna have to do a lot of work on processing what we've been through and what we're going through right now. And there was a lot of concern expressed from the civilian authorities about how does a nation recover from sustained trauma. And so there was a lot of concern about that sort of pushing it off in the distance.

But the short-term concern was essentially best described as one giant middle finger to the Russians. We're not ending our life in Kyiv. Our kids are going to school. Refugees are actually coming back from other countries to live in Kyiv. We are absolutely in this thing. We're committed to this thing and we're just making do. And yeah, you know, I was talking to somebody, I met with a bunch of university students,

which was a fun meeting at one of the big universities in Kyiv. And it was just really kind of encouraging and the resolve of these folks that they're having classes, that there was a park right around the university. I couldn't tell you the number of strollers that I found that I saw. And I think that people just get used to it and adapt. And for me, it was both the combination

that I'm a really light sleeper and number two, that I really sort of wanted to track each one of these air raids in real time to sort of see what the Russians were throwing at the Ukrainians and how the Ukrainians would respond. But there's an air alert app that you download and it's Mark Hamill's voice, Luke Skywalker's voice. He volunteered his voice.

It's voice. He volunteered his voice. It's amazing. But that Air Alert app is no, there's nothing subtle about it. And I sent to my family the screenshot of the notification. So one night it was 12.01 a.m. when the Air Alert sounded. And the all clear wasn't until 4 a.m. because it was a kind of a long unfolding multiple platform attack with drones

and cruise missiles, et cetera. So it just took a while for it to all unfold. And the whole time I'm trying to track what's going on and all of this, whereas somebody who's in Kiev is saying, I'm just staying in bed. I'm just staying in bed. And the other thing is that I would say, I think a lot of people have really learned how to identify when crap gets real, so to speak. And it's one thing to hear the air alert, that's sort of lowest level of alert.

hear the air alert, that sort of lowest level of alert. The next level of alert is when you start to hear the air defenses. And like the highest level alert is when you start to feel like you hear the actual incoming missiles. And there's just such a big difference between the boom in the air when the missiles intercept the cruise missiles or the Kinzals and a boom in the air when the missiles intercept the cruise missiles or the Kinzals and a boom on the ground. And I would compare the boom in the air is like, imagine the largest firework you've ever heard. Whereas the boom on the ground, thankfully, we didn't experience it because they didn't get through. But the boom on the ground,

the more seasoned folks were like, you know immediately because it's more like an earthquake. And so you're listening to what kind of boom are you hearing because they're not all the same. But again, I want to emphasize people are just going about their lives. Like we would finish around the meetings

at six o'clock, seven o'clock, eight o'clock or whatever, and then go and have this really nice meal at this restaurant and then head back to the hotel like it's a normal trip you'd take to say DC to meet with members of the cabinet. And then 1201, here comes a siren. I mean, it was, yeah. And so I don't want to exaggerate, you know, it's, I don't want to exaggerate in any way,

sort of like, did you feel like you're in real danger? Um, what I felt like was I was experiencing something that was important to experience, extremely important, especially to be there for that hypersonic missile attack, and then really helped me understand at least the way in which ordinary people in Kiev are experiencing this aspect of the war. But if you kept driving east,

closer and closer to the front, everything just gets worse and worse and worse until you hit the zero line, which is the line of contact between Ukrainians and Russians. And that's just hell on earth. It's just hell on earth. And so, you know, one of the reasons why the Ukrainians were so insistent with me on F-16s, F-16s, F-16s, is that they realized that Kiev had this American-made and Western-supplied anti-aircraft umbrella over it. The other places didn't have the same level of protection and they needed the F-16s

which could fly of the length and breadth of the country with longer range air defenses to help provide citizens in other cities with the same kinds of protections that the citizens of Kiev experience. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving.

And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy.

Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's a-u-r-a-frames.com. Use code advisory at checkout to save. Terms and conditions apply. This is a legal podcast. And we had Supreme Court opinions while you were gone. this is a legal podcast. And we had Supreme Court opinions while you were gone. Yes. And it was kind of surreal to be texting you in Kiev as you're sending me pictures of Patriot missiles flying by.

And I'm like, yeah, but make sure you read the Andy Warhol opinion. Our priorities were a little different this week. And look, I do want to start with the Andy Warhol opinion to remind people this is the case that we talked about after oral argument where one photographer takes a picture of Prince back in the 80s. Andy Warhol and Vanity Fair licensed that photo so that Andy Warhol can do his thing with it

for a Vanity Fair story that year, back the 80s the contract is very clear it was one use and yada yada she got paid $400 but Andy Warhol makes a bunch of screens of it and it's the you know Prince series that's become somewhat famous so when Prince dies Andy Warhol is dead by the way by this point but the Andy Warhol Foundation licenses again to Vanity Fair. They pay the Andy Warhol Foundation $10,000 for it. It's orange prints. And the original photographer sues, saying that this is a violation of her copyrights.

Okay, this was not the case that anyone thought was going to bring down the House this term in a Dobbs-like fashion at the Supreme Court. And yet, that's kind of what we're going to describe here, fascinatingly. And the reason that I wanted to start with this, David, is because I really like the fact

that this is a knockdown, drag out fight over copyright law. There's no real political valence to this whatsoever. This is not an ideological fight. This is just people who care about the law a whole lot and think that the other side is wrong. Yeah. So I want to explain the lineup. Sotomayor is going to write the majority opinion joined by Thomas, Alito, Gorsuch, Kavanaugh,

Barrett, and Jackson. That is not your normal lineup. No. Gorsuch and Jackson are going to write a concurrence of their own. And by the way, the two of them, you are going to write a concurrence of their own. And by the way, the two of them, you're going to see those names quite a bit in the last couple weeks.

Gorsuch and Jackson, Jackson and Gorsuch. Interesting. Maybe we'll touch on that a little bit later. But if you've heard about this case, it's because of the dissent. Kagan writing, joined by the Chief Justice. So you've got Kagan and the Chief teamed up, Gorsuch and Jackson teamed up, and then Sotomayor, Thomas, Alito,

Kavanaugh, and Barrett? Okie dokie. Yes. So, we're off to the races here. And what's even better, it's not over even like the whole Copyright Act or the four factors. It's just over this one factor and it's a death match.

Yeah. So here's the first factor under fair use in the Copyright Act, 17 U.S.C. Section 107. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. Interesting. All right, so purpose and character.

That's what this fight really became about. And again, to sort of summarize, you're going to have the majority say that purpose and character is about the use of it. So the original photograph was to sell to magazines, etc. And so was the Andy Warhol photograph. Purpose and character is the same.

And Kagan and the chief are going to say, no, that would be totally redundant with the other three factors. Purpose and character has to be about something more fundamental to art. And that by simply saying that they could be used

in the same magazine article or something, you are destroying derivative art of which, for instance, Andy Warhol is your premier example. He transformed a black and white photograph of Prince and made it into something iconic. And you're basically saying no. Now, the pushback to that, on the law side at least, is he's welcome to have it in a museum.

We don't touch on any of that. This is simply like the commercial use aspect of it. Right. But, you know, you can see the point here. I don't even know that we need to get that far into the weeds on the law, although it's definitely interesting if you want to go read it.

It's 87 pages. It's no joke. But most of the attention on this opinion was about the footnotes. Can I please, can I make a request of my host? Yes. Can I please read Kagan's footnote when the time comes? Oh, please.

No, go, go right now. So in the dissent, Justice Kagan, footnote two. Sarah May presented dramatic reading of footnote two. One preliminary note before beginning an artist. 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 quote, no theory, unquote, and quote, no reason, unquote, 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 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 Ipsy Dixon. With those two recommendations, I'll take my chances on readers' good judgment. I wish I could like, and all these pundit back and forths that happen, Sarah, I wish you could just copy paste that Kagan footnote and put it like at the end

of these exchanges, But holy smokes. And look, Kagan's not wrong, I think, in the overall character of the majority opinion. It really did spend a lot of time taking on a dissent that only had two justices on it. Like, you won. There was just a whole lot of shade at the dissent. Here's one part.

The dissent begins with a sleight of hand and continues with a false equivalent. The result is a series of misstatements and exaggeration from the dissent's very first sentence to its very last. Cool. Okay. And this is Sotomayor to Kagan, by the way,

and Kagan to Sotomayor. Like this is not Sotomayor to Thomas and Thomas to Sotomayor. I mean, this is part of the progressive justice league on the Supreme Court, like going back and forth. Yeah. Okay. So there's a few things here to unpack. One, we saw Justice Alito Like going back and forth. Yeah.

Okay. So there's a few things here to unpack. One, we saw Justice Alito throw some shade at Justice Barrett, for instance. And we mentioned that it was in a parenthetical where you had to actually go look up which justice had written the thing. Like nothing compared to this. This is hot call outs.

Comeback footnotes, as Justice Kagan called it. Okay. So A, I think this is worth revisiting the 333 court thesis that I had. Because again, if the only way you're reading about or thinking about this court is on that ideological X-axis, this makes no sense to you. And in fact, I went back and looked. If that were the only axis, what you would have expected from last term is a whole lot of 6-3 cases decided

with the six conservative justices on one side and the three liberal justices on the other side. In fact, David, while there were quite a few 6-3 cases, if you just looked at that, you would be wildly misled. The 6-3 wasn't always the six you think or the three you think. So just breaking down that ideological 6-3, you are explaining 20% or fewer of the cases from last term. 80% will need some other explanation. And that's where I think you get at least this one other axis. I've described it as an institutionalist axis. I am very open to any number of other ways to describe this Y-axis, as long as we can agree that there is not

just one X-axis that's running and it's ideological and that explains the whole court and we don't need to have other reporting on it. This case and some of these other cases, you know, while you were gone, David and I, David Latt and I, talked about another case where Justice Jackson breaks from the crew.

You have to then look at why that's happening. I think there's some personal reasons here. I think there's some ideological reasons here, not conservative versus liberal ideological, just sort of view of the world ideological. I'll start with the very micro personal reason that I think could explain some of the vitriol, at least, not distinguishing their decisions. You know, this is not that big a deal. I mean, it is, but it's not, you know what I mean?

And so opinions are getting circulated. And for whatever reason, this opinion keeps getting recirculated. The footnotes keep getting added. They're keep getting like little snippy snip snips. And you can just see how it careens out of control as it keeps going back and forth. And the majority keeps adding things.

And Kagan keeps getting annoyed until she, my guess is then deletes everything and just adds footnote two as a catch-all FU to the majority so that Sotomayor is left swinging out there with all of this stuff about Kagan and Kagan basically has nothing about Sotomayor except footnote two. Clever, by the way, I think.

I can see how that would build over the last several, several months of circulating these opinions. There's also been some rumors about the Kagan-Sotomayor relationship never being particularly tight. Just personality, right? They're just not best buddies. Fine. But ideologically, David, there is something about this where Sotomayor, and you'll notice in that lineup, for instance,

where she's with Alito, Gorsuch, Thomas, Barrett, and Kavanaugh, look, character and purpose, right? Like, the purpose is that you got money from a magazine that could have gone to someone else. I'm looking at the text. I don't know what to tell you is what it is. And you have the chief and Kagan in what I think is a very high institutionalist position,

i.e. thinking about the ramifications of this decision on the art world. Kagan comes off as a real art lover here and saying like, but that's not how art works. That's not how any of this works, you dum-dums. And so think about the ramifications of this decision and how far reaching it will be

and what all you are killing off creatively in this country by not protecting, or rather by overprotecting copyright. I just think the Y-axis on this one is like, you could spend, you could do an entire course on just this opinion and thinking through all of the different versions of the Y-axis you could come up with in order to explain this outcome.

I found it really fun. Oh, it was really fun I found it really fun. Oh, it was really fun. It was really fun. And I also liked, in the Sotomayor majority opinion, there were lots of pictures. Oh, yes. What I liked about the majority opinion is it really would seem to take pains to show and tell. In other words, here's our perspective. Here's why we're, you know, here's why we're the seven. And the pictures, they let the pictures do a lot of speaking for themselves, even though they also, you know, they also explained, but the pictures really reinforced, which I thought was

the most compelling part of the opinion. But it's, it's really an unusual, and maybe Sarah is just because I haven't really tracked some of these issues as much until I started doing a legal podcast. But it feels like there's been more imagery in Supreme Court opinions in the last few years, which makes a lot of sense when images are an issue that you actually see the images. But I thought that was very interesting and also more mention of two live crew. Yeah, the pretty woman parody. That's right. Then there's been for a while. So let me ask you guest, I mean host from a guest.

Sorry. Let me ask you host. Who do you think had the better of the argument? The seven or the two? Okay. I want to go back to the merits then real quick. Okay. Which is to look at all four factors

of the fair use test. So first factor is that character and purpose. That's what this case is about. The district court, for instance, sided with the Kagan chief version of this, which is it was transformative. You look at the picture side by side, they have a different character.

Warhol gives the Goldsmith original photograph a quote, new expression and employs new aesthetics and creative and communicative results distinct from Goldsmith's. The work can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure, such that each print series work is immediately recognizable as a Warhol rather than as a photograph of Prince. Okay, Second factor, the nature of the copyrighted work. So that would ordinarily weigh in Goldsmith's favor, right? Because the nature of it was a picture of Prince. The new thing is a picture of Prince.

the portion used in relation to the copyrighted work. Yep, that still favors Goldsmith because it was the whole thing. Yep. And fourth factor, market substitute. Yep. It was obviously a market substitute, right? That was kind of the whole point.

And so you've got a couple things here. That's why I mentioned all four tests. On the one hand, how is purpose and character different than those following, than what's captured in those following three? Not a lot in my view of what we're looking at is basically a combination of the three in some ways.

Two though, the idea, and this is the Gorsuch and Jackson concurrence. What, in what world are judges sitting there saying and knowing and having any real feelings on this work transformed the other work from a vulnerable, uncomfortable person to an icon and rock and roll? I'm, uh, yeah, I've got to be team Gorsuch here. Like, that cannot be what we ask of judges, nor do I trust judges to have the ability to do that. So I'm sympathetic to the Kagan argument that their version sort of redundifies, is a word that I just made up,

that first factor a bit. But I don't particularly see a way around it because otherwise you're getting to this like purpose and character being an art criticism class for judges. And that's where, and I've talked about this before, generally speaking, my heart is worth with Gorsuch

on the sort of low institutionalism. Tech says what it says. Congress, feel free to fix it. Not my problem. Judges shouldn't be art critics. Yeah. So I think I actually, I would have only joined the Gorsuch concurrence, I would have only joined the Gorsuch concurrence, not the majority opinion, interestingly enough. I think I'm with you on that. But I would not have been throwing shade at the dissent either. I think they raise valuable points.

And that again, I might even say, this is our best reading of this. Congress, feel free to step in and have a different opinion. You're welcome to do so and change the first factor as you see fit in response to this. But as I'm sitting here now, I have no ability to look at the two pictures

and say what exactly Prince transformed into by turning orange. Right. Well, you know, and I think that when you're talking about the purpose prong of this, really when you're saying, okay, because they did a really good job of showing, well, the picture, the original picture was for things like magazine covers. And then what is this Warhol thing? Well, it's prints on a magazine cover, but it's the picture except orange.

And, you know, look, they weren't saying you can't display it in a museum. They weren't displaying you couldn't do other things with it. But it was essentially the thing that I found kind of persuasive in many ways was this picture competed with the original picture. I mean, the painting competed with the original picture in the same market, yet the painting was the picture. Yeah. And so I felt like there was a lot of, in my view, that was really helpful. And also just as a side note, Sarah, one thing view, that was really helpful. And also just as a side note, Sarah, one thing that I thought was really helpful was one of the best shorthand,

and I can't remember if this was in concurrence versus majority, but the shorthand distinction between what parody is and satire is. And I thought that that was interesting. Parody is when you're using the thing to mock the thing and satire is when you're using the thing to mock the thing. And satire is when you're using the thing to mock society or something beyond the thing. And I thought that was a really nice

and sort of shorthand description. So the Gorsuch concurrence, I think breaks it down, hopefully that first factor this way, which is either you can read that first prong as the purpose the creator had in mind. And that's where you might get to satire or transformation or all these other things.

And then the judge is sitting there, you know, as an art critic. Or the purpose and character is of the challenged use. And Gorsuch is like, look, maybe it's a close call, maybe it's not, but I got to go with challenged use here. What's in the mind of the creator is just outside the scope of my abilities.

And he goes through various ways in which he thinks you can come to that conclusion textually and historically and yada yada and commonsensically. And I think that's the right way to approach this. And of course, he leaves open parody, satire, et cetera. But it just cannot be that judges now are, that the first prong is the mind of the creator of the art,

the purpose of the creator versus the challenged use. Right, right. No, I thought that was a very compelling concurrence. Absolutely. And again, interesting that Jackson joined it. She had joined, her and Gorsuch have joined together before. It will be fascinating to see in, you know, that was in Pork Producers

by the way that she joined Gorsuch. Is Jackson going to be a low institutionalist like Gorsuch who's just like, ain't my problem, honey badger don't care? We shall see. Okay, David, I want to make sure we leave plenty of time

for another Gorsuch special. Boy, it has been the month of Gorsuch between pork producers, the concurrence here, where it doesn't throw shade at anyone in the Andy Warhol opinion, which I think ends up as the better of all of the opinions. It's also the shortest. And then we have the statement.

David, the statement. Oh, Sarah, this is, I'm not going to say I am completely with Gorsuch on everything that he says, but I was the amen chorus of Justice Gorsuch here on the statement. And this is the statement in response to the Supreme Court essentially saying this is after Title 42, the Biden administration ended Title 42, which were the pandemic era immigration restrictions, motivated, of course, by the pandemic, which were subject to competing court orders as to whether it had to be removed or whether it had to stay with red state officials trying to get Title 42 sustained,

even though maintained, even though they didn't agree that the COVID emergency existed. They just wanted more of the immigration restrictions. And then the Biden administration sort of short circuit or ending the whole thing by ending Title 42. And Justice Gorsuch's statement is really the best short description of it is he uses it as a as a launching pad for an extended op ed against both the way in which the court system is creating nationwide injunctions

that are creating competing and irreconcilable legal obligations for different court estate entities and the way in which the use of emergencies and the use of emergency powers short-circuited the democratic process in the COVID context. And Sarah, it was lit. So the first four pages are laying out how the case got to this

point. Yeah. Yeah. I think it can be summarized nicely with the court took a serious misstep when it effectively allowed non-parties to this case to manipulate our docket to prolong an emergency decree designed for one crisis in order to address an entirely different one, i.e. an emergency decree designed for COVID-19 in order to address immigration. But the op-ed starts in the following paragraph. Since March 2020, we may have experienced the greatest intrusion on our civil liberties in the peacetime history of this country.

So it goes, David. And he really starts ticking through him. So what did you think of the greatest civil liberties incursion in peacetime history? Look, as a factual matter, as long as you include that peacetime history part, I just think it's kind of obviously true.

But it's a little beside the point. COVID-19 was also unique. And because the 19-ish flu epidemic happened actually not really even sort of at the tail end of wartime. Yeah. There were a whole lot of civil liberties incursions then too. So that's a real run for your money on that specific analogy, but maybe it wasn't really during peacetime. So fair enough. Yeah. So that's what I didn't love about it is that, so, okay. Yeah. In peacetime history is doing a lot of work there. There also wasn't very much treatment of the historical reality that civil authorities have been given sweeping authority in times of pandemics.

And so the issue, to me, wasn't so much about the sweeping restrictions on civil liberties, which is, if you go back and you look at the history, and we've talked about the Jacobson case, for example, if you go back and you look at American history on dealing with pandemics, and if you look at Supreme Court authority, and we talked through all of this at length on this podcast about the sheer police power, the sheer police power, public health power of state authorities, that, you know, you got to say that in peacetime history, sure, but the pandemic was serious.

It was serious. And there was a lot of constitutional authority given to state governments. And a lot of constitutional authority rests with state governments in times of pandemics. So that I didn't feel like he gave the full sort of fair treatment to that. But here's where I'm going to be really in agreement with him. Oh, I hope it's the same as mine. Let's find out. Oh, wait, maybe or maybe not. Maybe, maybe not. So my agreement is as this freaking thing unrolled, thing unrolled, democracy had time to work. Yep, that's mine. That's yours? The hive mind, the hive mind. Of March 12, 2020 is very different than September 12, 2020 is very different than September 2021 is very different than September 2022. Correct. Correct. And

Congress was not unable to meet during this time. In fact, we know they were able to meet because they passed major pieces of legislation. And they could even proxy vote. I mean, not proxy, but vote from a distance. Oh, they could proxy vote too in the House. Oh, that's right. That's right. Still can. Actually, that just ended. But up until

Republicans took the House chamber, they could still proxy vote under Nancy Pelosi. You know, and long-time listeners will remember that we use this phrase pandemic law. And if you go in March is when pandemic law started. And in August of 2020, so five months later, I wrote a piece in the dispatch called Pandemic Law Has to End. called pandemic law has to end. And in other words, we just can't keep doing this massive executive intrusion

on the democratic process because as I argued in 820, we knew even as of 820, a heck of a lot more than we knew in 320. And we had opportunity for the democratic process to work. It could have worked. And so this is something that's really frustrating to me about the failure of Congress and the democratic process and the way we punt to courts and the executive is that we had ample opportunity.

Look, if you wanted to pass, say, a vaccine mandate for workers, Congress was in session. Congress was in session. You know, this goes back to the OSHA case where Scott did such good work was, you know, look, you know, that's not how you do this is by putting a massive mandate on private employers without Congress lifting one finger, much less even going through the Administrative Procedures Act process. So there I was totally with him. I just wish there was more attention given to, yeah, there was a good reason in March or April 2020 why there was a snap into action, but there was no good reason in the months that followed for the total short-circuiting of the democratic process.

All right, I'm going to read the part of the op-ed that I liked the most. Oh, good, good, good, go. While the executive officials issued new emergency decrees at a furious pace, state legislatures and Congress, the bodies normally responsible for adopting our laws, too often fell silent. Courts, bound to protect our liberties, addressed a few but hardly all of the intrusions upon them. In some cases like this one, courts even allowed themselves to be used to perpetuate emergency public health decrees for collateral purposes. Itself a form of emergency lawmaking by litigation. Doubtless, many lessons can be learned,

but one might be this. Fear and the desire for safety are powerful forces. They can lead to a clamor for action, almost any action, as long as someone does something to address the perceived threat. Along the way, we will accede to the loss of many cherished civil liberties,

the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our home. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story.

Even the ancients warned that democracies can degenerate towards autocracy in the face of fear. But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular, but it does not tend towards sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process. Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate. If I were to synthesize the Justice Gorsuch Doctrine. It might be that.

That the other two branches, the executive and the judicial branch, can make fast decisions, might be able to make good decisions. They might be really, really smart. You may like them a whole lot. But it is no substitute for the messiness, compromise, loudness of the legislative process.

And that actually is how you arrive at the best long-term sustainable, and I mean sustainable in every sense of that term, politically, in terms of solving the actual problem you're trying to solve. All of that has to be done through the legislative process, whether it's the COVID pandemic, climate change, Andy Warhol, any of the above. There are limited times that you want the executive or the judicial branch to act in place of the legislative branch.

And so Gorsuch is, this is going to be his song, man. And I like that song. Yeah, I loved that song. And some state legislatures are acting in some post-pandemic ways that I think are reflecting some of the wisdom by removing from executives the sweeping emergency power

that they had prior to the pandemic and sort of resetting what the executive authority is in their given states. And I think that that's a healthy way of responding, which by the way, if and when there is a future pandemic, we'll put the ball right in the legislature's court so that they're not sitting there kind of in the cheap seats in the peanut gallery cheering or jeering the executive. It's going to make them do something, which I think is quite constructive overall. But, you know, we'll see if they can live up to their responsibilities. But yeah, I think, Sarah, when you talk about some of the lingering bitterness around the COVID pandemic, and by golly, there's a lot of lingering bitterness around the COVID pandemic, for a lot of good

reasons, quite frankly, a lot of that lingering bitterness was contributed to by this sort of by this sort of fiat power exercised in different jurisdictions by governors. And so there was so little opportunity for real public buy-in. So then, or the buy-in by the elected branches of government. So you're just fighting each other on Twitter or on Facebook and you don't,

it was one of the more unique circumstances in my life where there was so little democratic participation in issues of so much consequence. And I think that is one of the reasons for the lingering bitterness over and above, not above, but in addition to the bitterness over the substance of the reasons for the lingering bitterness over and above, not above, but in addition to the bitterness over the substance of the decisions themselves. And it is really especially galling

if you disagree with the substance of the decision and you felt like you didn't have meaningful participation in the decision, if that makes sense. For sure. And again, back to sort of the X-axis versus the Y-axis here. Gorsuch

was alone in this. Nobody joined it. And of course, wasn't an opinion about anything. It's not bad. It was an advisory opinion, which we love here. It's a statement of feelings. We do. I'm glad he wrote it. I know other people think that judges should be writing

less of this stuff, but we at this podcast are all for it. But I also like the long oral arguments that no one else likes. So whatever. I'll be curious if Justice Jackson is persuaded by that part of the Gorsuchness, right? That decisions are better made through the messiness, the compromise, the participatory nature of the legislative process, and that there is a very limited role for both the executive and the judicial branches

in that overall process, important ones, but limited. And that here, for instance, was a good example of the manipulation of the judicial branch to have to come in and rescue the government because now there's dueling injunctions and you see Gorsuch once again throwing a flag on the field saying, we haven't solved this nationwide injunction thing that I've been talking about since the very first moment I was confirmed. When are we getting around to that? So as we see Justice Jackson, I was going to say mature on the bench. I don't mean that she personally is maturing. I mean that we are getting to watch, like we're getting to learn more about her decision-making

and what her judicial philosophy is. Boy, I have been fascinated by some of these non-ideological decisions, at least on their face. Poor producers, you can say, was all about abortion if you want to, and maybe it was, but there's Justice Jackson. You know, where she ends up on all this and whether she agrees with that line.

Yeah, that is really interesting. And it does show, and this is something that I've been like, I'm going to borrow the Jonah-ism of like, I'm the baby banging my spoon on the high chair. And banging my spoon on the high chair, the how matters just as the what matters. Oh, I think the how matters a lot more. Yeah, you're on that bandwagon. You're all about the how. And I'm with you. I am only about the how. Yeah, you're only about the how. I'm a ton about the how. But the how really matters. And that's the thing. And in fact, in many ways, and I know you're going to agree with this, it's the how that is ripping us up as much, if not more than the what. It's the means that are ripping us to pieces

as much, if not more than the ends. And that level of authority and that combined with that level of helplessness really did damage to our body politic. And COVID is just the, it's a huge shining example of it because it was so important. But COVID is just, was par for the course. It just par for the course in a super consequential way. Okay, David, we'll save the tech cases,

a little patent law for next time. Including TikTok lawsuit? Oh, yeah. Okay, good, good, good. Yeah. But before we go, have you watched White House Plumbers yet? I have not.

I have not. How is it? I'm just very curious for you to watch it since you're super old and might like remember more stuff than me. I mean, I was three when that happened. As I said, as I said. So can I end with a pop culture observation

and then one final observation from Ukraine that is going to be a downer for folks? Will you watch White House Plumbers? I will. I will. Because you recommended it 100%. Okay. Watch it. I want to get your take. All right. Continue. Okay. So I finally watched Everything Everywhere

all at once on my flight back from London. So I flew, trained to, from Kiev to Warsaw, flight, Warsaw, London, London, Nashville. That should have won the Oscar. Yeah. And it did. But that was so freaking good. I was skeptical.

It was so good. So let's just revisit this. David, several months later, thinks that a good decision was made by some group of people. And that's your rant. That's not a rant.

I mean, it's an applause. I mean, it's like that gif where people are standing and applauding. No, I'm applauding because there was a moment in there that like I'm sitting there in my seat with tears rolling down my face. Like just, oh, I could not. I could not deal with it. It was so powerful.

Then the second thing, and I don't want to end on too much of a downer, but I think it's really, if there's one, there are many takeaways from the trip, but here's a takeaway. And I think that this is something that people who are following the war from a distance just really needs to hit home as far as where the, what's happening here

and what evil is inflicting and I'm gonna try to get through this without choking up but the last image that I saw when I got to board the train into Kyiv was the line of ambulances that come every night from the battlefront. And so the train station in Kyiv, you know, passengers are coming and going. And every night there's a line of ambulances leaving from, of wounded Ukrainian soldiers leaving for the, from where they've come to go to the top hospitals in the country, which are in Kiev. And it just one after another, after another, after another.

And the whole experience reminded me of the Drew Gilpin Faust book about the civil war in the United States, which wasn't about the combat, it was about the suffering. And it was called Republic of Suffering. And it's one of the more powerful books that I've ever read. And when I left, I just had this feeling

that I left a republic of suffering. And the level of pain that was being deliberately inflicted on this nation. And we talked about the part of it, which is the disruption to normal lives and how people are just having to struggle to have a normal life in the capital city

with these air raids hanging over their heads. We didn't talk about just the sheer scale of loss. And one thing that I did is I went to some of the northern suburbs of Kiev where the furthest line of Russian advance and the Russians got closer to Kiev than you realize. Like a lot closer than you realize to the center of the city. And to see the annihilated homes just everywhere. And then there's this one place

where they've piled all the civilian cars that the Russians in one small area that the Russians just riddled with bullet holes into one pile. And the little children's toys that are placed on the, you know, on some of the cars to signify that there were kids in these cars, it just wrecks you.

It just absolutely wrecks you. And that is what, we go back and forth at each other all the time, you know, an op-ed will make people really angry and they just can't, just can't vent enough rage at each other, fellow Americans about having different opinions, right? This is what evil looks like. And we hurl accusations at each other that you're horrible, no, you're horrible,

no, you're horrible. In the meantime, there's actual horror out there. And it just, it was so striking to me, Sarah, to come from something like that. And then late at night, I'd have some time at the hotel and I could open up and I could look at Twitter, right? And I could just see the triviality combined with intensity between the arguments here

domestically. And it was just so striking to me, the difference between triviality and weight and consequence and how we hurl accusations at each other that are way out of proportion to the actual offense. And so I just, you know, for those folks who are praying, folks who listen to this podcast, pray for the people of Ukraine. The amount of suffering is just something that is not in your frame of reference.

And so I just wanted to end, I know that's a bit of a downer, but it's perspective and we need perspective. All right. And Alan, with a vocabulary glossary term that was used in this podcast that we didn't define, ipsedixit. We didn't actually say what that was. That's just an unproven statement and lawyers like to use Latin. And David pronounced it weird. So for all those reasons, Ipsi Dixit. How did I say Ipsy Dixit?

I don't know how you said it. It was weird. Well, we'll hear from listeners about that. Yeah. They'll tell us. So just saying, if you're going to complain in the comments about it, it better not be Ipsidixit.

All right. Thanks for joining us. We'll be back next episode. Lots to talk about tech cases. This term is just heating up. Bye.