The Hidden Costs of Winning a Supreme Court Case

On the morning the Supreme Court ruled unanimously in my favor, I woke up to the incessant alerts chiming on my phone: I had 753 missed notifications. I guess something happened.

By evening, after hundreds of interviews and thousands of messages, I turned the phone off and mowed the lawn. I couldn't hear it over the mower anyway, and I didn't try. I just cut the grass, back and forth, until something slowed down enough inside me to think.

That's the moment nobody sees when they read Matal v. Tam.

What they see is the opinion: unanimous and sweeping, cited in hundreds of cases and law review articles since. What they don't see are the years of setbacks and challenges that made winning possible, a life unexpectedly and permanently altered as a result, of living under a microscope for a decade only to have that part of your life become what you'll be known for long after you leave this earth. Not your words — someone else's words about you.

I've met others who understand this in ways that don't require explanation.

In 2016, I gave the keynote at the Conference of Asian Pacific American Law Faculty. Karen Korematsu was the guest of honor at the awards dinner that evening. Her father Fred's case — Korematsu v. United States (1944), which upheld the internment of Japanese Americans — is one of the most notorious Supreme Court decisions in American history. It took decades, a coram nobis petition, and Fred Korematsu's quiet persistence through most of his adult life before history began to correct the record.

At the dinner, Karen told me to give the USPTO hell. When someone mentioned that some Asian American groups hadn't fully supported our approach, she reminded the room that the Japanese American Citizens League had initially opposed Fred Korematsu's plan as well. "Courage takes on many forms," she said. The JACL now regards him as a hero.

Years later, I ran into Karen again at a different legal event. She didn't remember our earlier conversation. "They all blend together," she said — then gave me her email again and told me she was glad I won. The moments that define your life are not always the moments other people are keeping track of.

That same evening in 2016, Professor Keith Aoki received a jurisprudence award. Aoki had been lightly involved in our case at the very beginning — encouraging my first attorney to pursue an appeal on the grounds that the disparagement provision disparately targeted minority communities and might be unconstitutional. We didn't pull hard on that constitutional thread until years later, with a different attorney. By then, Aoki was facing serious health issues. He cheered us on eagerly and didn't live to see the outcome. The constitutional argument that ultimately reached the Supreme Court carried some of his early thinking in it, invisibly, the way these things do.

I met Mary Beth Tinker a couple of years after the ruling, when a law professor brought us both to lunch in Nashville. Tinker v. Des Moines (1969) — her case — established that students don't shed their constitutional rights at the schoolhouse gate. She was working as a nurse. I was working at a nonprofit. We were both still being introduced primarily by the things that had happened to us years earlier, asked to speak about cases that had long since passed out of our hands.

There's a book by Peter Irons, The Courage of Their Convictions, that documents sixteen Supreme Court cases through the experiences of the ordinary people at the center of them. I'd recommend it to anyone in a civics class or a law school — it should be required reading. The common thread across every story isn't triumph. It's the particular weight of carrying something that became larger than you, that you didn't entirely choose, and that doesn't end when the court issues its decision.

People see a Supreme Court opinion as the victory or the loss. They don't see the defeats and partial wins along the way, the ones that shaped what the eventual ruling could even say. And they rarely think about how an opinion gets used in the years and decades after — for or against the things you stood for, by people and causes you never anticipated, in ways you have no control over whatsoever.

That's change-making, sometimes. You fight for a principle, you win on the principle, and then the principle goes out into the world and does what principles do: it gets applied to situations you didn't foresee, invoked by people who don't share your values, used to reach outcomes that trouble you. The day the ruling came down, the biggest headlines were about the Washington football team. It wasn't their victory — they would eventually be compelled to change their name, as they should have long before. But on that day, the most covered story about our First Amendment case had nothing to do with us.

It's important for anyone contemplating a long fight to understand: you don't get to choose what the outcome means to other people. You don't get to control the narrative once the court has spoken. You file the brief, you make the argument, you win or lose — and then the ruling belongs to everyone.

The worst moment of those eight years wasn't a legal loss. It was the day I accepted that I had to walk away from being a full-time musician.

The Slants existed to connect with a community, to make art that meant something, to represent people who didn't often see themselves on stage. The legal fight was supposed to protect that. Instead, it consumed it. Mounting legal bills. Side jobs taken to stay afloat. Nearly losing the house. Band members who left when touring had to be reduced. I had to watch the art I was fighting for suffer while I fought for it.

The legal literature doesn't mention any of that. What it also can't fully capture is how the USPTO, when presented with extensive community voices and evidence supporting our work, dismissed it in a single phrase: "laudable, but not persuasive." A national survey. Expert linguistics testimony. Declarations from Asian American community leaders across the country. Laudable, but not persuasive. Those community voices were systematically excluded from the record that courts would later rely on — and that erasure has never been fully examined. It's something I hope to address in a forthcoming law review article.

What I can say here is this: the loss of those voices wasn't the end of the road. We pivoted. The abandoned first application became the foundation for a second, strategically different approach — one that ultimately provided the grounds for the Federal Circuit to ask the constitutional question that reached the Supreme Court. Sometimes a perceived defeat is the mechanism of a later win. That doesn't make it feel like less of a loss at the time.

The law review articles don't mention any of that either. They analyze the doctrine, trace the precedents, build toward the constitutional holding. What they can't tell you is what it costs a person to pursue a principle through eight years of institutional machinery that was never designed to see them clearly — and that will, in any case, get your instrument wrong in the final opinion.

(The Supreme Court identified me as the lead singer. I am the bassist. I have never been the lead singer. The error came from a government brief, was adopted by Justice Alito without verification, and has been reproduced in the legal literature ever since. It is a small thing and also, somehow, a perfect illustration of the structural problem: the document superseded the person.)

Keith Aoki didn't live to see the constitutional argument he helped set in motion reach the Supreme Court. Soni Wolf, a founding member of Dykes on Bikes — denied trademark registration multiple times under the same disparagement provision used against us — spent decades fighting for the right to trademark a reclaimed name. Our case opened the door. She died two months before the ruling came down. Too late.

The arc bends, but it doesn't bend fast enough for everyone who helped bend it.

What I've learned, from my own experience and from Karen Korematsu and Mary Beth Tinker and the people in Peter Irons' book, is that the cases that matter most tend to be carried by people who didn't set out to make history. They set out to address a specific injustice, and the history accumulated around them. The weight of that is real. So is what I think of as an inner reappropriation — taking what the experience made of you and injecting new meaning into it, rather than being defined by it. Not erasing the struggle, but refusing to let it be the only thing.

I'm long past those hardest years. I have many more days ahead. But I think often about the people who didn't — and about what honesty requires of those of us who did make it to the other side.

The least I can do is tell it straight.

Or in my case, tell it slant.

Peter Irons' The Courage of Their Convictions should be in every civics classroom and law school. For teaching Matal v. Tam and related First Amendment questions, simontam.org/for-educators has classroom resources. And if these questions connect to work you're doing in your institution, the speaking page is the place to start.