The Best of Times and the Worst of Times at the Supreme Court

By Eric Segall

June, 2040

Dear Jamie:

Congratulations my dear, dear grandchild. How exciting to be starting a clerkship with Chief Justice Sotomayor during the term she celebrates her 85th birthday. You have made your family so proud. As you begin this new chapter in your life, I wanted you to hear first-hand about a momentous week in history twenty-five years ago. For the country and the Court, it was indeed, the best and the worst of times.

The last Monday of June, 2015, brought so much happiness to so many people. I know it is hard to imagine that there was a time in our history when millions of men and women were denied the basic human right of marriage just because of their choice of partner.

That dark era ended when Justice Anthony Kennedy announced that the Equal Protection Clause meant exactly what it said—that gays and lesbians were entitled to the same equal rights under the law as all other citizens. We were so full of pride that day when he delivered the now historic statement: “The comforts and joys of state-sanctioned marriage, and all the legal rights that come with it, must be open on an equal basis to all the people of this United States.”

It is equally hard to imagine, at least for those of us who were around at the time, that the bitter dissent written by Justice Thomas (yes the very same Justice you will see on the bench next fall), has been universally condemned by liberals and conservatives alike.

The lesson from that time, I think, is that prejudice, whether cloaked in modern times or the beliefs of men and women who lived long ago, whether expressed in religion or civics, is still prejudice. I hope you remember that when you give counsel to your Chief as she battles with the Court’s most senior Justice.

There was one gray cloud in the blue sky that beautiful June day. You may not believe how the American people came to be aware of the historic decision of the Court. No, they did not see the decision announcement on their Apple iTransplant or even on the Amazon Wall of News.  In fact, they did not see it at all.

Yes Jamie, this all happened before Congress finally threatened the Justices enough that they relented and allowed cameras in the Court. All we had available to us that June day in 2015 was the audio of Justice Kennedy announcing the decision, and not even in real time. How sad there is not a single image, video or otherwise, of the Court on the day when equal rights to marriage were granted to all of God’s children.

As great as that Monday was, Tuesday, as you know, brought great shame to the Court. Less than 24 hours after the Court’s same-sex marriage decision, the Court decided a health care case of enormous magnitude. The 5-4 ruling in King v. Burwell, which to his later regret Justice Kennedy reluctantly joined, eventually ignited the great economic collapse of 2017.

President Obama had tried to give the American people a law that would provide some modest relief from the burdens of high cost health care and medical bankruptcies. The plan was well-understood: 1) insurance companies had to cover the sick equally with the healthy; 2) the healthy who could afford to needed to buy insurance or pay a penalty or a tax; and 3) the government would subsidize the premiums for people for whom the economic burden was too great. It wasn’t a perfect plan by any means, but it was better than what had come before.

Alas, as you know from your history pods, the Court for naked partisan reasons cut off the third leg of the now iconic stool and did so with no basis in law or fact. Within 60 days, because Congress could not reach a compromise, almost 10,000,000 people in thirty-six states lost their health insurance triggering the collapse of the insurance markets and one of our country’s most severe economic recessions. Thankfully, the crisis did lead to the 28th Amendment.

I tell you of a time in our history when health care was not considered a basic human right, when there was legal discrimination against people based on immutable characteristics, and when our highest Court operated in secrecy and darkness, to give you strength for the difficult battles you will face as we approach the mid-point of this century. Although President Chelsea Clinton will likely veto the proposed Religious Supremacy Restoration Act, if she doesn’t, hopefully the Court will.

Finally, there is rumor and hope that this will be the year that the Supreme Court overturns the Citizens United decision. What could be a better start to your legal career than working on its reversal and removing the large, neon sign from the top of the Google Capitol Rotunda.

Love and Hugs,