“One preliminary note before beginning in earnest,” Kagan wrote. “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.”

“In any event,” Kagan went on. “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,” she concluded. “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 [statements without evidence]. With those two recommendations, I’ll take my chances on readers’ good judgment.”

[Kagan’s not kidding, either. I started reading through the published opinion and found a forest of footnotes in Sotomayor’s argument that heaped scorn on Kagan’s reasoning, and not in a friendly manner either. There seems to be a footnote on nearly every page in which Sotomayor finds reason to ridicule Kagan, plus more directly in the body of the text. Pages 36-7 in particular obsesses over Kagan’s reasoning, making the arguments from the plaintiff and respondent almost an ancillary manner. Gorsuch is almost as bad in his concurrence, which runs only five pages with as many mentions of Kagan’s argument, but Gorsuch is a conservo-libertarian justice. It really does read as though Sotomayor and Kagan have some feud under way, or at least that Sotomayor really has a problem with her erstwhile liberal colleague.

One wonders what that might be, if so. Perhaps related to a leak? Hmmm. Anyway, the real irony here is that the decision today doesn’t actually settle the copyright claim. It just forces the district court to proceed to trial on it rather than dismiss under a fair-use argument. Imagine what will happen when it comes back to the Supreme Court! Prepare the popcorn. — Ed]