Justice Ruth Bader Ginsburg made no secret of her preference that another woman replace Justice David Souter and join her on the Supreme Court. But will she and Judge Sonia Sotomayor, if confirmed, see eye to eye?
My research finds only one case in which Justice Ginsburg wrote an opinion in which the Supreme Court overruled Judge Sotomayor -- and it's in a case I worked on as an associate in private practice.
In 1997, Judge Sotomayor, then a federal district court judge, ruled that the New York Times and other news organizations had the right to reproduce freelance journalists' articles in electronic databases such as Lexis/Nexis without asking their permission. Judge Sotomayor decided that the publishers were within their rights under the 1976 Copyright Act (specifically under section 201(c), which governs republication of collective works, like newspapers or magazines). Her decision in that case may account for the muted response of the lead plaintiff, Jonathan Tasini, to today's news.
On appeal, the freelancers persuaded the Second Circuit Court of Appeals (where Judge Sotomayor now sits) to side with them, and the Supreme Court, in a 7-2 ruling authored by Justice Ginsburg, agreed.
I helped represent the news organizations in Tasini, sat in on oral arguments before Judge Sotomayor, and eagerly awaited (and, obviously, welcomed) her opinion. So I can't help but wonder if the two judges will soon have occasion to revisit the case -- this time in a collegial discussion.
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