About ten days before the oral argument, Julie Fink, Josh Kaye, and I moved from Manhattan to a hotel in Washington, DC, near the National Mall. Other members of the Paul, Weiss team—Jaren, Alexia, Colin, and Andrew—would join us there the week before the argument. Pam Karlan took up residence at another hotel, just a few blocks away from the Supreme Court, since it was her tradition to walk over to the Supreme Court building on the morning of arguments.
We were in the home stretch now, tying up loose ends as I continued to practice. Morning, noon, and night I repeated to myself the points we wanted to make and responses to potential questions from the justices. The rest of the team kept researching, digging up helpful facts about which states had enacted which laws, when they had done so, how many people were affected by them—anything that had the remotest chance of being helpful. It was as if I were cramming for the biggest oral exam of my life. Actually, that’s exactly what it was.
There were other details to take care of, too. I had a closet full of suits at home in New York, but I was far too superstitious to simply wear any old outfit to argue my first case at the United States Supreme Court. I had to look right, so I asked my friend Emily for advice, and she referred me to someone she knew at the Ralph Lauren store on Madison Avenue.
I went in for a fitting, and, to be honest, I chose the fabric and style as if I were deciding between an iced latte or a cappuccino at the coffee shop on our corner. Mary Murray, the saleswoman, laughed and said, “I’ve never seen anyone make decisions so quickly.” But I knew what I wanted: a dark navy suit with pinstripes (conservative, which was appropriate for the Supreme Court) and a silk round-collared, cream-colored blouse. Of all the issues I needed to spend time worrying about at that point, clothing was not high on my list.
Shoes, however, were another matter. I had bought two new pairs—one a somewhat flashier pair of Gucci pumps, the other a more conservative pair from Ferragamo. The Guccis were more comfortable, but I still couldn’t decide which pair to wear. Once we got to Washington, Pam suggested I should ask her own personal style consultant: NPR’s legendary Supreme Court correspondent Nina Totenberg.
Pam and Nina were old friends, and Pam, who tends to focus on matters of the mind far more than those of fashion, occasionally would get clothing advice from the always fashionably dressed Nina. “I’ll bring her over,” Pam said. I laid my suit out on the bed, put the shoes on the floor next to it, and ordered up a pot of tea from room service. If we were going to meet to discuss Supreme Court fashion, we might as well be civilized about it.
When Pam and Nina arrived, I poured each of them a cup of tea and then gestured toward my outfit. “So, what do you think?” I asked. “The Ferragamos are more conservative, which might be more appropriate for the Court . . .”
Nina just laughed and said, “Robbie, I am positive that the justices will not be able to see your shoes.” I knew she was right, since I would be standing behind the historic lectern that I had already seen. But still, given my state of high anxiety, almost any and every detail somehow seemed crucial—or at least important, anyway. We did not discuss any legal strategy or details of the case, but I told Nina I was planning to go with the Ferragamos, and she nodded. From then on, whenever we e-mailed back and forth about developments in the case, we would joke about my shoes.
In fact, Nina even ended up using my shoes as a detail in a blog post just after the oral argument, writing, “Lawyer Roberta Kaplan, representing DOMA plaintiff Edith Windsor, wore conservative Ferragamo pumps for her argument, deciding against the jazzier Guccis, with a bigger brass buckle. Neither is what I would call racy.” As she told me later, she received a lot of praise for her amazingly detailed reporting on this issue.
That same week, I woke up one morning to find an unexpected and very welcome op-ed in the Washington Post. George Will, one of the leading conservative pundits in the country, had written a piece entitled “DOMA Infringes on States’ Rights.” In it, Will advanced what was called the federalism argument against the constitutionality of DOMA. Will had taken his cue from some prominent law professors led by Ernest Young of Duke and Randy Barnett of Georgetown (who had also led the constitutional arguments against Obamacare). They had submitted an amicus brief on our side arguing that DOMA was unconstitutional because it violated the Tenth Amendment, which provides in relevant part that “the powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states.” In other words, Will urged the justices to strike DOMA down not because it failed to respect the equal dignity of married gay couples like Edie and Thea but because Congress did not have the constitutional authority to pass it in the first place, since only the states, not the federal government, can regulate marriage.
Following this argument, Will argued that each state—regardless of whether it had voted to allow marriage equality (like New York) or had instead voted to ban it (like Mississippi)—should get to make its own decisions about this issue. As he wrote, “By striking down DOMA—by refusing to defer to Congress’s usurpation of states’ powers—the court would defer to 50 state governments, including the 38 today that prohibit same-sex marriage.”
Will’s reasoning, of course, was not the same as ours. We wanted the justices to find DOMA to be unconstitutional, of course. But we wanted them to do so on equal protection grounds since DOMA discriminated against gay people, not because it offended the Tenth Amendment conception of states’ rights. It wasn’t inconceivable, however, that the federalism argument that Will was making might actually convince one or more of the more conservative justices to vote our way. After all, states’ rights is an important issue to many conservatives, and certain of the justices had made it clear in their opinions that they were strong believers in this view of the relationship between the states and the federal government. It is interesting to consider whether some of these conservatives, who undoubtedly have LGBT children, siblings, or friends, were supporting us on states’ rights grounds because doing so allowed them to avoid the equal protection arguments. In an ideal world, I wanted to win Edie’s case for the right reasons—but we don’t live in an ideal world and a win was a win, so I was happy to see Will’s op-ed.
The closer we came to March 27, the better I felt about our chances. Edie soon came down to DC, joining us at the hotel. No matter where we were, people would stop her for pictures and to wish her good luck. Facebook and Twitter were awash in HRC’s red marriage equality logo. In addition to George Will, much of the conservative establishment seemed to be turning our way as well. The best example of this came a few weeks after our Supreme Court argument, when Commentary magazine, a bastion of the neoconservative establishment, published an article contending:
To allow the federal government to formulate a national standard for what has long been a state decision would drive one of the last nails into the coffin of federalism. In Windsor, the Supreme Court has an opportunity to reanimate the dying spirit of the nation’s many-layered and many-leveled political system. Striking down DOMA and leaving the recognition of gay marriage to the political process in the states is not just the federalist thing to do, it is the conservative thing to do.
These were all encouraging signs, but we kept trying to think of ways to make our case more persuasive, especially to Justice Kennedy.
One thing that is distinctive about Justice Kennedy’s jurisprudence is the fact that he is the author of the majority opinions in what were then the two major Supreme Court cases affirming the civil rights of gay people: Lawrence v. Texas in 2003, which overturned Bowers v. Hardwick and struck down Texas’s sodomy law; and Romer v. Evans, which in 1996—the year DOMA was passed—decreed that an antigay amendment passed by the state of Colorado was unconstitutional. I had read those opinions over and over again until my eyes were bloodshot, because I wanted to make sure that I had truly absorbed Justice Kennedy’s thought process and reasoning.
One passage in the Lawrence opinion was particularly appropriate since it spoke to the vexing question of why otherwise open-minded people like President Clinton had chosen in the past to support DOMA:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
In our briefs, we had taken great care not to point fingers at the lawmakers who had voted for DOMA, and I wanted to do the same thing in my oral argument. It’s considered bad form to seem to be overtly lobbying for a particular justice’s vote at argument. But rather than citing Justice Kennedy’s opinions directly, I could try to echo his language in a more subtle fashion, using his own words and phrases like “times can blind.” This served another purpose, too. I knew that in all likelihood, one or more of the justices would attempt to box me in on a point I didn’t like or want to be boxed in on. The best thing to do in those moments is to pivot, or redirect the argument back to your own strongest points. Interjecting phrases from the justices’ own opinions is a time-honored way to do that, which led my brilliant colleague Jaren to come up with a fantastic idea.
“Why don’t we put together a list of all the Kennedy quotes that might be useful?” she asked. We quickly went through his Lawrence and Romer opinions and pulled out the best phrases we could find, creating a cheat sheet I could use that we called “Kennedy’s Greatest Hits.” It included the most important passages from Justice Kennedy’s opinions in Romer and Lawrence, such as:
• Sweeping and comprehensive is the change in legal status effected by this law. . . . Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.
• It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.
• For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.
• It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
I studied this sheet for hours, quite literally walking around the streets of Washington, DC, like a crazy person, repeating the phrases out loud over and over again so that they would be on the tip of my tongue during the March 27 oral argument. People on our team even began placing bets on when, or whether, I would manage to work any of them into my oral argument. Regardless of the office pool odds, I was determined to do so.
By now I had practiced my answers to the justices’ potential questions to the point where I could practically recite them in my sleep. Everything was going smoothly, until one unfortunate moment just three days before the argument.
This was our final moot, my last chance to calibrate my answers before appearing in front of the justices. Edie, Pam, the rest of the team, and I met in the evening in a big conference room at the Paul, Weiss offices in downtown DC, and for the umpteenth time, I began laying out our arguments. Very soon, Pam started grilling me on the issue of heightened scrutiny, asking me again and again why laws that treat gay people differently should get heightened scrutiny when laws that treat other groups differently—such as the physically or mentally disabled—clearly did not. She kept pounding on the issue, trying to exploit cracks in my argument, and I suddenly felt exhausted.
“You know what?” I exclaimed, speaking out of turn and no longer in moot mode. “Enough! If I have to during the argument, I’m going to throw handicapped people under the bus.” What I meant to say, of course, was that I would try to sidestep this problematic issue if the justices brought it up. It wasn’t my job, after all, to look out for the legal rights of other minority groups; it was my job to win our case for Edie Windsor. But unfortunately, and to my deep regret, that is not what I said.
The minute I saw the look on Edie’s face, I knew that she was furious. Suddenly, I remembered that Thea had been a quadriplegic. She had spent a quarter century in a wheelchair, with Edie taking care of her and loving her through it all. I had even seen Thea like that myself when I was her patient. And I had just casually blurted out a remark about throwing her, or people like her, under the bus.
I immediately felt sick to my stomach. “Edie,” I said, “I’m so sorry. I didn’t mean it to come out that way.” I tried to explain, but Edie was in no mood to hear it. She was tired, she was hurt, and she was absolutely right that I never should have said what I said.
To quote the Paul Simon song, we as lawyers can sometimes “think too much.” We can get so caught up in the gamesmanship and legal technicalities that we lose sight of the real people behind the cases. The look on Edie’s face reminded me in an instant that this wasn’t about the briefs and PR logos and op-eds; it was about the still-grieving woman standing right there, looking at me with hurt in her eyes. It’s all about Edie, stupid. How could I have forgotten that?
I felt terrible about upsetting Edie that day—in fact, I still do. But in a strange way, that mistake helped me to remember something vital to our case. I wouldn’t forget again what United States v. Windsor was truly about.
THE DAY BEFORE my Second Circuit oral argument, Edie, Rachel, and I had gone to Yom Kippur services together in Manhattan, an event that turned out to be incredibly meaningful. Coincidentally, two days before my argument at the Supreme Court, it was time to celebrate another Jewish holiday. Monday, March 25, was the first night of Passover, when Jews throughout the world celebrate the liberation of the Jewish slaves from Egypt more than three millennia ago. We planned a big Seder dinner at the hotel and invited dozens of people—practically anyone and everyone who happened to be in Washington, DC, at the time who had anything to do with the case.
In the Supreme Court’s original scheduling order, the oral argument in Windsor was supposed to take place on March 27 and the oral argument in Perry was supposed to happen on March 26. But Vicki Jackson, the Harvard Law professor whom the Court had appointed to argue the jurisdictional question in Windsor, had asked the Court to switch the dates because she had planned a Passover Seder at her home in Cambridge for the evening of March 25. The Court readily agreed, and the switch ended up working in our favor, since we would now be able to hear the Perry argument first and listen to what the justices had to say before I argued Windsor. It also meant we could have our own Seder and still have one more day for final preparation before the oral argument.
Rachel took on the massive task of organizing our Seder. Passover Seders are comprised of many specific dishes—foods that have symbolic meaning for the religious holiday, and which therefore must be prepared with some precision. Above all, no food that is leavened, which includes bread, pasta, and most cookies or cakes, can be eaten during Passover. This is to commemorate the fact that when the newly liberated Israelites were escaping from Pharaoh’s armies, they did not have time to wait for their dough to rise. The restaurant at the hotel was mostly Asian, and at one point I could hear Rachel on the phone explaining, “We cannot have any wontons in the matzoh ball soup!”
It is also traditional at Passover for everyone present at the Seder to read from the Haggadah, the centuries-old text that lays out the order of the Seder and explains the meaning of the holiday. There are many different versions of this text, some longer than others and some with modernizing touches. Over the years, Rachel and I had created our own relatively lengthy Haggadah with social justice and feminist overtones, as well as a lot of poetry and traditional Hebrew from the Torah and the rabbinic literature. I was glad that we had brought copies of our Haggadahs with us, full of prayers and poems about fleeing from slavery (or its equivalent) to freedom and liberty. It seemed especially appropriate considering not only the particular meaning of the Passover holiday but why we were all there in Washington, DC, in the first place.
The Seder was magnificent. The large room was so full that it was practically bursting at the seams with friends and family and the many colleagues who had been so supportive of Edie and our team. My parents were there, as was all of Rachel’s family, including our niece and all of our nephews from Massachusetts and California; Pam Karlan and her partner, Viola Canales; Mary Bonauto; Emily Giske; Pam’s law students who’d helped with the case; our whole Paul, Weiss team; James Esseks; and Edie. Even the then-girlfriend of Jacob’s wonderful nanny Ellie Alvarez came and brought her parents from Israel, since they were visiting their daughter for the holiday.
One of the truly special rituals that we did that night was to go around the table and invite everyone to introduce themselves during the song “Dayenu.” In Hebrew, the word dayenu means “it would have been enough for us,” or “it would have been sufficient.” The song is about being grateful for all of the gifts God has given us, such as liberating us from bondage, giving us the Torah (or Jewish law), and allowing us the gift of rest on Shabbat. In other words, had God given us only one of those gifts, it would have been enough. As I looked around at all the faces in the room singing this word dayenu over and over again, I had tears in my eyes. This extended family—many of whom were gay people just asking to live their lives with dignity and justice—was what all our work (not to mention the Jewish holiday) was really about.
THE NEXT MORNING, March 26, dawned with overcast skies and freezing temperatures. I woke up early and got ready to head to the Supreme Court to hear the oral arguments in Perry, feeling extremely fortunate that as the lawyer who would be arguing on behalf of Edie Windsor, I had been given a ticket to get into the Court for Perry. Both arguments were expected to draw massive crowds, so I knew some of my colleagues had woken up before dawn to stand in line at the Supreme Court, since that was the only way to get a seat.
Jaren, Pam, Andrew, James, and Paul, Weiss partner Walter Rieman got to the Court around five a.m., and Pam talked later about the uncomfortable transition that took place once they arrived. Because people had started lining up days before, we had hired “line-standers” to act as proxies, so that the attorneys working on the case would not have to spend a sleepless night on the sidewalk. Hiring line-standers has become common for big cases at the Supreme Court, and many firms do it. But Pam described the surreal scene that unfolded the morning of the Perry argument.
We got over to the Supreme Court at 5 a.m., and the entire lawyers’ line was made up of homeless black men underneath tarps who had been sleeping there all night. And there was this white guy with a clipboard, and you went up to him and gave him your name, and then he went and woke up one of these guys. The guy would get up, wrap his blanket around him, and get on a bus, and you would then take his place in line.
And if somebody had been there to take a time-lapse photo of this, you would have seen a line of homeless black men turning into a line of affluent white lawyers over about a two-hour period, and I was just staggered by it.
Especially for a lifelong civil rights lawyer like Pam, who had not only worked at the NAACP Legal Defense Fund but had devoted her entire career to obtaining rights for the socially marginalized, this was a particularly gut-wrenching experience.
When Pam and the others took their places in line, they stood in the freezing temperatures for another several hours. Once they finally got into the Court, I had already taken my assigned seat in the first row next to Amy Howe, a member of the Supreme Court bar who, along with her husband Tom Goldstein, runs the SCOTUSblog website. I could not wait to see how the argument unfolded and what the various justices would have to say about the issues in the case.
Charles Cooper, the attorney defending Prop 8, went first. Cooper had clerked for Justice William Rehnquist and served as an assistant attorney general under President Reagan before cofounding his own law firm, Cooper & Kirk. He was a Southerner, a rock-solid conservative from Alabama who opposed gay rights. But what almost no one knew at the time was that his own stepdaughter, who had grown up with Cooper as a father figure, had recently told him that she was a lesbian. To my knowledge, Cooper never made any public statement revealing how that news had affected him, but it is hard to imagine that his daughter’s coming out had no impact. Later, it was reported that Cooper had helped to organize his stepdaughter’s wedding to her girlfriend, which took place a little more than a year after the Perry oral argument.
Cooper started his argument by focusing on whether Prop 8’s proponents even had standing to defend the measure. This was the more technical, jurisdictional part of the case, but the detailed questioning made it clear that the answer wasn’t cut and dried. Then Chief Justice Roberts invited Cooper to address the merits, and that’s when things started to get interesting.
JUSTICE SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?
CHARLES COOPER: Your honor, I cannot. I do not have any—anything to offer you in that regard.
I couldn’t believe what I had just heard with my own ears. Turning to Amy Howe, I whispered, “Did he just say what I think he said? Did he just concede that I win my case?”
Amy whispered back, “Yeah, I think he did.”
Chuck Cooper had just admitted that, other than the right to marry, any statute that treats gay people differently from straight people would be presumptively unconstitutional. As far as I was concerned, the same logic would apply to DOMA since the couples adversely affected by DOMA were already gay and already married. This was therefore a pretty significant concession that DOMA itself was unconstitutional.
After that exchange, I was feeling pretty good about our chances, to say the least. And then things only got better, with the following humorous exchange between Chuck Cooper and Justice Kagan:
JUSTICE KAGAN: If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?
COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples—both parties to the couple—are infertile, and the traditional— [LAUGHTER]
JUSTICE KAGAN: No, really, because if the couple—I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage. [LAUGHTER]
This exchange perfectly summed up the flaws in the procreation argument for denying gay couples the right to marry, although Cooper continued to insist that if one person in the couple—the man, obviously—remained fertile, then the government’s interest in procreation was still satisfied. Justice Kagan kept pushing back, until finally Justice Scalia saw fit to interject, to much laughter, “Strom Thurmond was not the chairman of the Senate committee when Justice Kagan was confirmed.”
Ted Olson went next, and the first half of his argument went more or less as expected, with Justices Alito, Scalia, and Roberts asking pointed questions, and the other justices periodically interjecting friendly questions. The most interesting part was the following exchange with Justice Scalia:
JUSTICE SCALIA: I’m curious—when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? . . .
When did the law become this?
TED OLSON: When—may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?
JUSTICE SCALIA: It’s an easy question, I think, for that one. At the time that the Equal Protection Clause was adopted. That’s absolutely true.
But don’t give me a question to my question. [LAUGHTER]
When do you think it became unconstitutional?
Ted and Justice Scalia went back and forth a bit on the question, but Scalia kept pressing the issue.
JUSTICE SCALIA: Was it always unconstitutional?
OLSON: It was constitutional when we—as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that—
JUSTICE SCALIA: I see. When did that happen? When did that happen?
OLSON: There’s no specific date in time. This is an evolutionary cycle.
JUSTICE SCALIA: Well, how am I supposed to decide a case then—
OLSON: Because the case that’s before you—
JUSTICE SCALIA: —if you can’t give me a date when the Constitution changes?
What struck me was that instead of focusing his ire on the “homosexual agenda,” as he had in his dissent in Lawrence, Justice Scalia was now spending his energy and time attacking Ted. Coming into this oral argument, I wasn’t sure how fierce Justice Scalia’s questions might get. Afterward, I felt confident that I didn’t need to worry unduly about any verbal flame-throwing from him, which was a relief.
When the oral arguments in Perry were over, our whole team reconnoitered at the DC Paul, Weiss office to compare notes. The firm had ordered Chinese food (accompanied by boxes of matzoh) for lunch, so when we walked into the big conference room, the table was laden with little white cartons. The Supreme Court had already posted a link to the audio of the argument, so we all sat around the table, scarfing down Chinese food, listening to it. We would stop the audio periodically, discuss how best to answer certain of the questions the justices had asked, and assess whether we needed to change any part of our strategy.
We discussed the exchange between Justice Scalia and Ted, with Jaren suggesting two possible answers: either DOMA was unconstitutional in 1996, when it was passed, or it was unconstitutional from 1791 onward, because it had never been the role of the federal government to step in and override the decisions of the states with respect to marriage. We started debating the issue back and forth, and it was about that time that I glanced down at my BlackBerry and read the first few lines of an e-mail that I had just received.
It was from a lawyer who had been at one of the moots. The e-mail started innocuously enough, just sending “good vibes” for my argument. But as I scrolled down, I saw that the lawyer was proposing to dictate an entire opening argument for me, down to starting with “Mr. Chief Justice and may it please the Court.” The e-mail even provided a handy pronunciation guide, referring at one point to “Mr. Clement [Pronounced Cle MENT with accent on Ment].”
That was about as far as I got. In a moment of surprising sanity on my part, I slid my BlackBerry across the table to Pam and said, “I don’t think I want to read this. Can you take care of it?”
As Pam read the e-mail, her mouth fell open. The notion that someone who was not part of our team, had never been involved in any of our subsequent strategy sessions, and had no idea what my opening argument even was at this point would write a brand-new one, send it to me less than twenty-four hours before I was about to stand in front of the Supreme Court, and believe that this was actually a productive way to help me was pretty amazing. What was I going to do, just throw all our months of work and preparation out the window? What kind of lawyer would truly think that we weren’t as prepared as we could possibly be for this argument?
Pam read the whole thing, then said, “Yeah, I don’t think you need to finish this.” I asked what we should do, and she said—and this is why I so love Pam—“We could send an e-mail that says, ‘Someone has hacked into your e-mail account and is sending bizarre messages. You really need to change your password.’ ”
I never responded to that e-mail, but one good thing did come out of it. For weeks afterward, whenever people on our team e-mailed each other, they’d include little pronunciation guides such as “It’s pronounced WIND-sor” or “That’s pronounced fo-CUS, in case you care.”
AS I WAS walking into the hotel later that afternoon, my cell phone rang. I took the call while standing in the lobby, and just at that moment, Jacob walked by with his nanny, Ellie. He ran up to greet me, shouting with excitement, but I put my hand out to stop him. “Not now,” I said. This was not something I ever did, but these were extraordinary circumstances, although Jacob couldn’t have been expected to know or understand that.
Jacob got very upset, and Ellie took him away to try to soothe him. I finished my call and went up to my hotel room to continue working. In fifteen hours, I would be standing in front of the Supreme Court, arguing the most important case of my life, and I intended to work for the rest of the afternoon and evening, with as few distractions as possible, before (hopefully) getting a good night’s sleep.
Rachel and Jacob were staying at the hotel in a separate room so that I could have space to work and sleep without interruption. It hadn’t occurred to me, but this was very strange for Jacob, who was not used to having his two moms staying in different rooms. We had explained to him why it was necessary, but for a six-year-old logic has little sway over emotion. Not only were we not all staying in the same hotel room together but he had hardly seen me in the last few weeks, and now I had just blown him off when he had been so excited and happy to see me.
I honestly wasn’t really thinking about any of this, but about thirty minutes or so after I had gone up to my room, as I was reading through my notes for the thousandth time, my phone rang. It was Rachel.
“Robbie, I need you to come down here right now,” she said. “Jacob is really upset.”
“I can’t,” I told her. “I’m still preparing.” She told me that Jacob was crying, which was something he didn’t normally do. “You need to come down.”
“Rachel, I don’t have time. I have to read this really important—”
“Enough!” she said. “There are a million people working on the case, but Jacob only has two parents, and he needs you right now.” There was no appropriate response other than “Okay, I’ll be right down.”
When I got to their hotel room, I saw that Rachel was absolutely right. Jacob was as upset as I had ever seen him, sitting on the floor in a corner in the bathroom with his back to us. Seeing him like that completely broke my heart, and I crouched down to try to apologize and to kiss and hug him. But he wouldn’t budge until Rachel finally said, “Jacob, how would you feel if you and Eema [the Hebrew word for ‘mother,’ which is what Jacob calls me] went back to her room and you guys had milk and cookies together?”
At last Jacob turned to look at us. “Really?” he said, sniffling.
“Yes,” Rachel said. “We will all go to Eema’s room together.” This was what Jacob wanted, to have our whole family together, and so the three of us went up to my room, ordered milk and cookies from room service, and cuddled up on the bed to watch cartoons. We watched several episodes of SpongeBob SquarePants and Johnny Test, and Jacob sat contentedly between Rachel and me, munching on cookies.
As Rachel noted later, this was a perfect metaphor for what the case was about. Children need their parents. They need to know that their parents will be there for them whenever they want them, and getting married is a way to help make sure those relationships are kept safe. By spending that time with my wife and our child, we were embodying what family means in the truest sense of the word. In fact, in retrospect, I really can’t think of a better way to have spent my final afternoon before my Supreme Court argument.