Next Friday on First Monday

Next Friday on First Monday

Next Friday on First Monday

Oral argument from the court.
Jan. 16 2002 4:43 PM

Next Friday on First Monday

A teleplay, on spec.

Donald P. Bellisario
Paramount Pictures
Los Angeles, Calif.


Dear Mr. Bellisario:

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Last night, I watched with a great deal of interest your new TV show, First Monday, about the U.S. Supreme Court. Congratulations. Everyone in the Supreme Court was talking about it today. Well, that and the fox that apparently entered the court building through the parking garage on Sunday and has yet to be caught.

Anyhow. Having already tackled some fairly monster issues with the first episode, i.e., the death penalty, immigration law, and cross dressing—and with a show about abortion rights scheduled for this Friday, I wanted to suggest a possible topic for your next episode, based on a true case I just watched today. The issue is—are you ready?—pre-emption doctrine and ERISA law. I know. Huge.

Below please find a dramatic treatment of today's case, using your characters. It really would, I think, make a riveting and dramatic show.


Open in Justice Joe Novelli's chambers, where the newly appointed justice has forgotten, again, to wear his shoes to court. (This was a very funny gag in the first episode, and I think we could carry it through the entire season, dressing the justice in feathered mules, ruby slippers, etc., as the term goes on.) Novelli's aggressively unappealing female law clerk, Ellie, bursts into his office without knocking, waving a legal brief dramatically before her.

Ellie: Justice Novelli! Have you read the pleadings in this new ERISA case, Rush Prudential HMO v. Moran? My God, Mr. Justice, Rush Prudential, this evil HMO, tried to keep a poor disabled, handicapped woman from having a $95,000 neurological surgery that could save her arm. The surgery cured her! And now they won't pay! (She breaks down sobbing.) Even though an outside arbiter decided the surgery really was medically necessary.

Novelli: Hm. Let me see that pleading. Looks like an ERISA case, Ellie. That means that whatever we decide here today will change the entire course of history. (He reads, rapidly.) Yes, it would seem that the state of Illinois enacted a statute establishing an independent review panel that would arbitrate insurance disputes between enrollees and their HMOs. (He reads on.) Moreover, it would seem that 40 other states have enacted similar legislation, evidently to protect consumers from medical necessity decisions that were being made by extremely powerful HMOs. In the Illinois case, it would seem the HMO refused to reimburse this poor woman, even though the independent arbiter deemed her surgery a medical necessity.

Ellie: Oh woe unto the poor and downtrodden.


Enter Miguel,Novelli's conservative law clerk, in expensive shoes. Miguel immediately surmises what is going on and attempts to dissuade the judge from siding against the HMOs.

Miguel: Not true, Mr. Justice. Actually, these state laws requiring that insurance companies arbitrate questions of medical necessity with employees are an attempt by the states to end run ERISA, the national insurance law. ERISA not only controls how all insurance disputes are decided, but it also clearly pre-empts state efforts from horning in on such disputes. As a statutory matter, ERISA precludes the states from setting up these review panels.

Ellie: That's not true, Miguel. The Illinois statute doesn't conflict with ERISA, so it's not pre-empted. The Illinois law doesn't create a separate remedy under ERISA, it merely creates a mechanism to enforce the existing insurance contract.

She slaps him. They kiss.


Novelli: Fascinating. Is there any relevant case law in this area?

Ellie and Miguel look stunned.

Cut to a stairwell in the Supreme Court building. Justice Novelli is heading upstairs to oral argument. Justice Deborah Szwark (bearing a startling resemblance to Justice Sandra Day O'Connor) stops him on the landing.

Szwark: So, Joe, how do you plan on voting on today's ERISA case? As you know, we're an ideological court that always splits 4-4, so your vote will determine the outcome of every case we hear, both this term, and on forever until one of us dies.


Novelli: Well, Deborah. On the one hand, states should have the right to protect their citizens from greedy HMOs. But on the other hand, Congress enacted ERISA to create uniform national standards for regulating the insurance industry. Either way, nothing will ever be the same again after today.

Szwark: That's true, Joe. But you'd better vote for the HMOs or I'll kick your butt after oral argument.

They kiss.

Enter Chief Justice Thomas Brankin (bearing an alarming resemblance to Chief Justice Rehnquist) beside him, Justice Henry Hoskins, another of the court's stalwart right-wingers.

Brankin: So, Joe. I guess you'll be voting with the big insurance companies today. After all, big business is good and the disabled are, I think we can agree here, bad.


There once was a girl named Melissa
Who tried to get round old ERISA
But pre-emption was such
That she didn't get much
Except for a punch in the kisser

Everyone laughs and groans good-naturedly, Brankin whispers to Novelli that if he doesn't vote in favor of the HMOs, Brankin will see to it that he's impeached.

Cut to sun-drenched courtroom where the nine justices have just taken the bench. Attorney John Roberts (playing himself) represents the HMO in question:

Roberts: Your honors, ERISA provides for the exclusive remedy for improper processing of insurance claims and because the Illinois law creates a different remedy, it is pre-empted.

[Here I would suggest cutting out all the citation to the various ERISA cases mentioned in the real oral argument and replacing them with a montage of various wealthy insurance company owners reclining on their yachts, superimposed with images of seriously handicapped individuals having their crutches and wheelchairs whisked away. This should be accompanied by a tasteful musical selection played by the Paul Shaffer and the Supreme Court orchestra.]

Daniel P. Albers (playing himself) represents the injured woman, Ms. Moran. Edwin S. Kneedler, a deputy solicitor general (also playing himself), also argues on Ms. Moran's behalf, representing the U.S. Justice Department.

Albers: ... saved her right arm ...

Kneedler: Forty states now have these kinds of statutes.

Long shot, panning courtroom. Soft backlight on reporters snoozing gently. Zoom slowly on several justices glancing at the clock. Sweep to Miguel and Ellie, sitting in clerks' alcove, bickering loudly. They kiss.


Look, Mr. Bellisario, I realize that absolutely none of the above really happened today, except for the sleeping and the clock watching, and maybe some of the kissing. But I do think that it's time we tackled this ERISA issue, head on. Please let me know what you think.

Very truly yours,
Clarence Thomas