Freedom Fighters

We’ve seen it repeatedly throughout our history: When people’s rights are threatened, it’s the lawyers who step up to to the plate. Some are true Freedom Fighters, and they deserve special recognition. That’s why each month, we will feature lawyers who are really making a difference.

Today, we are proud to feature Roberta Kaplan.

Roberta KaplanRoberta Kaplan, the founding partner at Kaplan & Company, LLP,  is best known for successfully arguing before the United States Supreme Court on behalf of her client Edith Windsor in United States v. Windsor (2013). In this landmark case, the Supreme Court ruled that a key provision of the Defense of Marriage Act (DOMA) violated the U.S. Constitution by barring legally married same-sex couples from enjoying the wide-ranging benefits of marriage conferred under federal law. Two years later, the Windsor case led directly to the Supreme Court ruling in Obergefell v. Hodges, which struck down all remaining state and federal laws against same-sex marriage across the United States.

In other words, Roberta Kaplan’s work as a lawyer led to one the most significant civil rights victories in the history of our nation.

A legendary litigator with decades of experience in both commercial and civil rights litigation, Roberta is an expert in cutting-edge areas of law. She is the author of Then Comes Marriage, which discusses the United States v. Windsor case, and has received numerous honors and recognitions for her groundbreaking legal work. In addition to receiving a Lifetime Achievement Award from the New York Law Journal, Roberta has also been selected by The National Law Journal as one of “The 100 Most Influential Lawyers” in the United States, as “Litigator of the Year” by The American Lawyer, as “Lawyer of the Year” by Above the Law, and as the “Most Innovative Lawyer of The Year” by The Financial Times.

Here’s the interview:

What inspired you to become a lawyer in the first place?
When I was very young, my mother wrote a series of letters to her younger brother, who was then serving in the Peace Corps in India. Her descriptions of me focused on my loquaciousness. As she wrote when I was three: “Robbie is a real doll. You have to converse with her to appreciate it… If she lets you get a word in, that is.” My maternal grandmother agreed.  As she wrote in one letter at the time:  “Robbie is bright as a whip. I asked her to please stop talking for fifteen minutes.” Apparently, in response to my grandmother I said: “I really can’t Grandma, I’m a big talker.” Since I had heard as a kid that lawyers actually got paid to talk, I decided to become a lawyer.

What compelled you to take the Windsor case pro bono?
By the time she contacted me, Edie Windsor had actually been turned away by a number of LGBT rights groups. But because she was not willing to accept the indignity of paying a large estate tax bill solely for being gay, Edie asked a mutual friend to reach out to me to ask if I would agree to meet with her.

The fact that Edie was the perfect plaintiff was obvious to me from the moment we met. She was passionate and devoted to her late spouse, Thea Spyer. She was brilliant and articulate. She was beautiful. But even though I believed she was the ideal person to tell the story of why DOMA was so fundamentally unfair, we actually pushed her very hard at the beginning to make sure that she knew what she was getting herself into. (At the time, she had a serious heart condition and was in her eighties.) We discussed the risks she might encounter and asked whether she really wanted to subject herself to criticism—some from within the LGBT movement and most from outside the community. But Edie never hesitated. To her, fighting for equality was a tribute to Thea and to their love for each other, as well as to the entire LGBT community.

One of the first things that Edie ever told me was that she only had a few more years left to live. That was more than eight years ago, in 2009. And she wasn’t kidding. After her spouse Thea Spyer passed away, Edie had suffered from a series of heart attacks, which were diagnosed as “broken heart syndrome.” Indeed, Edie asked me and other lawyers on our team to carry her nitroglycerine tablets for her when we attended events—just in case. But the truth is I never really thought that Edie would ever die. There are certain people on this planet—and Edie was surely one of them—who seem to have an inner light that is stronger and shines brighter than the rest of us. And although Edie passed away on September 12, 2017,  it’s impossible, even now, to imagine that light ever dimming.

What was it like to argue a case before the Supreme Court? And what was it like finding out you had won?
While I obviously prepared rigorously for the argument, practicing by engaging in countless formal and informal moot courts, I was still extremely nervous in the days leading up to my Supreme Court argument.  I remember doing a lot of pacing, repeating out loud my answers to a theoretical list of questions that might be posed by the Justices so that those responses would somehow be ingrained in the frontal cortex of my brain.  But ironically, when I finally walked into the courtroom that morning, I felt incredibly calm and focused.  I remember sitting in my seat impatiently waiting for my turn to stand up before the Justices and speak on behalf of Edie and the entire LGBT community.

We found out that we had won with Edie while sitting at the dining table of our New York City apartment, constantly refreshing scotusblog on our laptops, along with 95% of the LGBT people across the country.  My wife, Rachel, immediately exclaimed “Everything will be different for [our son] now.” I was overwhelmed, but I kept my tears in check to go into my home office and actually read Justice Kennedy’s words.  As soon as I saw that he kept repeating the word “dignity” in his opinion, I knew that our victory was far broader than simply an invalidation of DOMA.  That night, we all went to Stonewall, where we were greeted by throngs of people helping us celebrate.  That Friday, Edie and I together addressed New York’s LGBT synagogue for Pride Shabbat, and on Saturday night, we threw a huge dance party in honor of Edie and Thea who had loved to dance.  Not a bad way to end the case!

In 2015, the Supreme Court legalized same-sex marriages in all 50 states. Please explain what that day was like for you, especially knowing your work greatly helped lead to that decision.
That day, I was in San Francisco addressing the national convention of librarians since my book had just come out.  I woke up very early in my hotel room to log onto scotusblog.  While I knew that victory was pretty much inevitable in Obergefell given the Court’s reasoning in Windsor, it was incredibly moving to see Windsor serving as precedent for marriage equality in all 50 states. The first thing I did was call my wife and then I called Edie.  When I got to the convention later that morning, then House Speaker Nancy Pelosi was there and I remember us doing a lot of “high fives” and hugging.  We both knew that even if there had been any remaining uncertainty as to whether the Windsor decision had stood for the equal dignity of gay people, Obergefell made that point explicit.

From an equal rights perceptive, where do we stand today compared to previous years and decades? And what are our next legal hurdles?
I am proud to say that there has been dramatic, even revolutionary, improvement during the past decade in the lives and status of LGBT Americans. That, of course, is a very good thing, although we obviously need to keep fighting in areas such as employment, the military, and public accommodation, particularly in light of the current administration.

But sadly, the same cannot be said about the progress made by women during the same period. A recent article in the New York Times entitled “Why Women Aren’t C.E.O.s” concludes that: “in business, as in politics, women who aspire to power evoke far more resistance, both overt and subtle, than they expected would be the case by now.”

In the world of litigation, the same is true.  The conclusions of a recent report by the New York State Bar Association entitled, “If Not Now, When” are astonishing.  Women represent just 25.2% of the attorneys appearing in court in commercial and criminal cases and only 24.9% of lead counsel roles.  The low percentage of women having a speaking role in court was found at every level and in every type of court–upstate and downstate, federal and state, trial and appellate, criminal and civil.

What is most disheartening (not to mention exhausting) is the fact that it seems like we have been having this same exact conversation about “women’s issues” for so long. Sometimes, I feel like the character played by Bill Murray in a surreal, feminist version of the 1993 movie, Groundhog Day. None other than Hillary Clinton served as inaugural chair of the ABA Commission on Women in the Profession back in 1988, the year I graduated from college. Under Clinton’s leadership, the Commission published a groundbreaking report documenting the lack of advancement opportunities for women lawyers. In the past thirty years, although there have been repeated efforts to improve opportunities for women lawyers, the progress has been abysmal. As the New York Bar Association study observed: “Unfortunately, the gender gap in the courtroom has persisted even decades after women comprised half of law school graduates.”  In other words, the battle for women’s equality is still far from over.

You’ve had so many successes besides Windsor. Which one stands out the most for you?
I don’t think it would be a particular case, but rather my career choice in the past few months. On November 9, 2016, the morning after the election, I called a young woman whom I had mentored while she was a student at Yale Law School to check in on her. She and I both cried while we watched Hillary Clinton give her concession speech. So, after the heartbreaking presidential election results of 2016, I decided, probably for the first time in my life, to stop talking. I guess it was my version of a “mid life crisis.” Some people get a fancy new car or join a rock band. But since I already have a convertible and my son tells me that I have a terrible singing voice, instead of buying a car or an electric guitar, I have decided to spend my time living by example. So I’ve created a new kind of law firm that pays more than lip service to the idea of equality in the legal profession.

At Kaplan & Company, we are living, breathing proof that women can run and lead an elite litigation law firm and achieve extraordinary results for our clients. That young woman and former Yale law student who I cried with on November 9th is now one of our firm’s first group of associates. Clients are best served by lawyering that benefits from the perspective of everyone, regardless of how they look, love, or pray. In fact, on our very first night in our new New York City offices, we ordered way too much Chinese food and sat around a table discussing our cases. We heard from first year associates all the way to our junior partner on different ways to approach each case. Everyone spoke, and everyone was heard.

If you could give one piece of advice to other lawyers across the country, what would you say?
Always be guided by one thing and one thing only—the best interests of your client. As we frequently said during Windsor, “It is all about Edie, stupid.” I think that same principle applies to every single case I have ever worked on.  It’s all about the client. Always.  Our job as lawyers is to help them achieve their goals and tell their stories.

If attorneys want to get involved in social justice, how can they get started?
There are so many opportunities to get involved in social justice, especially now. Progressive groups are always putting out calls for lawyers to help with immigration rights, criminal justice reform, and other social justice issues. Every lawyer should see it as their grave, moral responsibility right now to engage in this work to protect our democracy and our Constitution.