by Becker, Jo
Whenever Olson had an argument before the Supreme Court, he asked a single lawyer on his team to put together a binder on each of the nine justices, with everything from relevant case decisions to items about their personal lives that might make them more or less sympathetic to a particular line of argument. This time, he planned to assign the task to nine lawyers, one for each justice. Already delivered was a twenty-one-page list of every clerk who had ever worked for any of them.
Olson told Boies that he thought the odds were good that the Court would take the case. But he had been at this game long enough to know better than to bet on it, or to waste a lot of time speculating. As he put it, “I don’t open the oven door too much to see how the bread is baking. They’ll tell us what they want, when they are ready.”
“I don’t have the faintest idea what they are going to do,” he said, sitting in his office one day. “Do the liberals want to take the case? Do they think they are going to win? I don’t know. Do the conservatives? It all could depend on things we can’t control. How much vote counting are they doing in their own heads, subliminally or not, or are they just looking at it on the merits?”
It could all come down to how the other justices read Kennedy, or the “sphinx of Sacramento,” as the California-born, Reagan-appointed justice was sometimes called. It might be known as the Roberts Court, but Kennedy was still the must-get vote in controversial cases.
He was a man of many contradictions. He was formal in dress and speech, wearing pocket squares and addressing one audience as “my fellow citizens,” and inhabiting gilded red-and-gold chambers that could have been decorated by Versace. He was a voracious reader, fiction generally, and loved to talk about the books he was reading. One former clerk recalled a lengthy discussion about Russian novelist Fyodor Dostoyevsky and the nature of the human soul. But unlike Justices Ginsburg and Scalia, who regularly attended the opera together, he was not a fixture in highfalutin Washington circles, preferring to cook out over his Weber grill with his wife and family.
Entire treatises have been written about Kennedy’s jurisprudence. Chief Justice Roberts liked to see himself as a pragmatic umpire, calling constitutional “balls and strikes,” Scalia and Thomas as judicial mediums, channeling original intent. But Kennedy, according to former clerks, was less mechanical, more empathetic.
He had a “romantic and optimistic view of the Court,” said one, viewing it as a “shining light on a hill, a place where enlightened judges help to shape a civil society,” said another. While generally conservative, he had no trouble breaking with his conservative brethren when it suited him. He was less concerned than some of the other justices with what he called the “temper of the times.”
“You have to remember that we live in a constitutional democracy, not a democracy where the voice of the people each week, each year, has complete effect,” he said in an interview on PBS’s Frontline. “There are certain enduring human rights that must be protected.”
He looked not just to the law, but at what was “right and wrong, fair and just,” said a third former clerk, using a prism that took into account evolving societal mores. Justice Scalia searched the Constitution’s text before reaching a decision; Kennedy had spoken of also searching his conscience. “We must never lose sight of the fact that the law has a moral foundation,” he once said, “and we must never fail to ask ourselves not only what the law is, but what the law should be.”
When brooding over a ruling, Kennedy tried to put himself in the shoes of the people who would be impacted, as he did in a 1991 case called Edmonson v. Leesville Concrete Company that struck down race-based jury selection in civil trials. Thaddeus Donald Edmonson, an African American construction worker, had sued the company for injuries he suffered while on the job. The company had used preemptory challenges to dismiss two black jurors from the jury without asking any questions that would determine whether they could serve impartially. The case pitted two private parties against one another, but it was the request of Edmonson’s lawyer to consider the feelings of the jurors that most swayed Kennedy.
“It was a very beautiful statement, to the effect that, ‘may it please the Court this case is not just about my client . . . it’s about two jurors who are not in this court room and not a party to this suit,” Kennedy later recounted in an interview recorded for a Web site called LawProse.org. “Those jurors, when they went into a United States District courthouse that day knew, or thought, that the right of service on a jury was as important as the right to vote, and for them, service on a jury was especially important because their fathers and their grandmothers and their mothers and their grandfathers could not have served.”
He was known to dramatically switch his vote, as he did in a 1992 abortion case. Privately, he was critical of the Court’s reasoning in the Roe v. Wade decision, which predated his tenure, viewing it as “an institutional disaster,” according to one former clerk. But he infuriated the Right by upholding the right to abortion in a case called Casey v. Planned Parenthood, in a ruling that referenced the Court’s hesitancy to overturn prior decisions: “Liberty finds no refuge in a jurisprudence of doubt.”
Years later, when the late justice Harry Blackmun’s papers were released, it would become clear that Kennedy had abandoned what would have been a conservative majority to overturn Roe at the last minute. But he hinted at it at the time when, looking out at the protesters gathered outside the Court just before the decision was announced, he suggested to a reporter that he had reached a point of no return. “Sometimes you don’t know if you’re Caesar about to cross the Rubicon, or Captain Queeg cutting your own tow line.”
He might say one thing on the bench, or at conference when the justices took their preliminary vote, but his opinions sometimes came out altogether differently. He had a habit of breaking out an easel and jotting down potential rationales. “Let’s talk about this, what’s your view?” he would ask his own clerks, and sometimes, especially if he was trying to bring a colleague around to his side, clerks from other justices’ chambers as well. It helped him to think aloud, and his opinions often became more expansive as he talked them through. As one former clerk put it, “When he swings, he swings hard.” He spoke often about the arc of history, and he viewed the Court’s role as a force for good, “confirming the movement of society toward a place of more perfect union, equality and liberty,” according to a fourth clerk.
He saw the promise of the Constitution’s due process clause, that no person may be deprived of “life, liberty, or property, without due process of law,” as transcendent, the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” as the Casey opinion put it.
In blazing the Court’s path on gay rights in the Romer and Lawrence cases, Kennedy had elevated the concept of human dignity into constitutional principle. According to one former clerk who remained close to him, his views on sexual orientation were unambiguous. “He thinks that you are born that way, and that it has no relevance to your capacity to be a productive member of society.”
He was offended by what he viewed as petty meanness. A state may not, as he wrote in the Romer case, single out a class of citizens and make them a “stranger to its laws.” But Kennedy was also a staunch federalist, who viewed the states’ power to regulate certain aspects of public life as a necessary check against tyranny. And those familiar with his thinking said that his Lawrence opinion, striking down antisodomy laws, was driven less by the law’s discriminatory impact and more by a libertarian antipathy toward government intrusion into constitutionally protected, private sexual conduct that in his view hurt no one.
Early on, Olson had asked Paul Cappuccio, the general counsel of Time Warner Inc. and a friend who had clerked for both Scalia and Kennedy, for his view on how Kennedy would come down. With public opinion shifting as rapidly as it was, Olson had tried to frame the Proposition 8 case so as to present the just
ices with the starkest of choices:
Did this Court want to be viewed by history as the Plessy v. Ferguson of its day, condemning another generation of gays and lesbians to separate but unequal marriage status, just as that 1896 decision upholding segregation condemned African Americans to second-class citizenship for another half century? Or did it want to be viewed as a modern-day Brown v. Board of Education, sweeping away the last vestige of government-sponsored discrimination?
Cappuccio’s best guess at the time was that Kennedy would care about being on the right side of history, and that his expansive views on liberty and equality would trump any federalist reluctance to stick it to the states that wanted to keep the status quo. But that was before the convergence of the DOMA cases and Prop 8.
That changed the calculus, he told Olson and Ted Boutrous. Kennedy also liked to view himself as measured, he said, and Olson was asking for an aggressive read of the Constitution. If both cases were heard in the same term, Kennedy might decide to split the baby. He could strike down the DOMA provision denying same-sex couples federal benefits on the grounds that the federal government had no legitimate interest in denying recognition to marriages that had been blessed by the states, burnishing his legacy as the Court’s chief advocate for gays and lesbians and nudging the country in the direction of equality, but uphold Proposition 8 on federalism grounds by finding that the definition of marriage was the realm of the states.
Be careful what you wish for, Cappuccio warned.
“The only person who should want this case to go up is Chuck Cooper,” he said.
Finally, at 3:13 P.M. eastern time, SCOTUSblog lit up. The justices had emerged from their December 7 conference.
“We have the orders now. Prop 8 is granted. So is Windsor. Those are the only two marriage cases granted.”
In a conference room at Robbie Kaplan’s firm in New York, everyone started jumping up and down and screaming. At AFER’s office in Los Angeles, Chad, Adam, and the rest of the crew did the same. Enrique Monagas was in his office at Gibson Dunn, unable to get anything done, when the news flashed across his screen.
“Yes!” he thought.
At his firm in San Francisco, Judge Walker was taking a break from a lengthy mediation he had been overseeing. Like Olson and Chad, he was hoping that the Court would “bite the bullet,” as he put it, and deal head-on with the questions raised by the passage of Prop 8. But he had forgotten that today could be the day the Supreme Court announced its cert decision until he saw it flash across the New York Times Web site and his e-mail pinged. Walker had bet a friend dinner that the Court would take the case.
You won, the friend e-mailed. Pick your favorite restaurant.
Bruce Cohen was driving along Santa Monica Boulevard when he got a text from AFER. He pulled over to the side of the road as CBS national news broke into his local radio station’s report. He had talked himself into the idea that if the Supreme Court declined to hear the case it would be good for gay Californians, if not the rest of the country. Only now did he realize just how much he had been hoping for this outcome.
“There’s only one Supreme Court of the United States,” he recalled thinking, “and our case is going there!”
Nearby, the Reiners were in a theater, watching Cohen’s latest hit movie, Silver Linings Playbook. Soon enough, a measure of trepidation would set in. Which justices voted to grant cert? Was it the four conservatives, and if so, did that mean that they believed they could win Kennedy’s vote to uphold bans like Prop 8? If it was the four liberals, would they be hesitant to decide the issue broadly? But for now, they just looked at each other, high-fived, and ran out to the car to call Chad and the rest of the AFER gang.
In Florida, though, a less euphoric scene was unfolding. David Boies had just stepped off a private jet when he heard the news via a four-word e-mail from Olson: “Cert has been granted.” He had flown in from Rhode Island, where he had taken on a massive new case: defending the state’s attempt to overhaul its pension system against a challenge by the unions.
The night before, he and Dawn Schneider, who handled press for Boies, had been talking about the case. He had set the odds of the Supreme Court taking the case at between 30 and 35 percent, so the decision came as a surprise.
“David,” she said, hugging him, “congratulations on getting the attention of the highest court in the land.”
He looked at her, subdued. “But I didn’t want them to grant cert,” he said, before climbing into the gray Chevy Suburban waiting for him on the tarmac.
He had mostly kept quiet about his growing unease, but he had stunned Adam several weeks earlier by telling him that he put the team’s chances of winning the case at the Supreme Court at only fifty-fifty. “Where was that three years ago?” Adam recalled thinking.
Boies was less trusting of the justices than Olson. A Court that had done to him what it did in Bush v. Gore could do anything, and, as his wife, Mary, and taken to warning of late, “Nothing good has come out of this court recently.” She worried aloud that some members of the team were getting drunk on their own whiskey, and when Schneider e-mailed her a copy of the cert order to keep for posterity that afternoon, she wrote back darkly, “Don’t frame it yet.”
But Boies did not share his fears when he joined Olson and Boutrous, who were at the Peninsula Hotel in Los Angeles for a partner meeting, on a conference call. The Supreme Court, in its orders, had made clear that in addition to the equal protection claims raised in both cases, the lawyers should be prepared to argue whether standing questions prevented the Court from reaching the merits and deciding the constitutionality of Proposition 8 or DOMA. In the Prop 8 case, those questions arose from the state’s failure to defend the initiative on appeal. In the DOMA case, they arose because the federal government was appealing a ruling finding DOMA unconstitutional, even though the government agreed that was the correct outcome, in order to enable members of Congress, who arguably might not be able to invoke the Court’s jurisdiction to challenge that decision.
By including those questions in both cases, the Court gave itself the option of dismissing them on procedural grounds, without confronting the important constitutional claims raised by Kris, Sandy, Jeff, Paul, and Edie Windsor. That would leave intact the decisions of the trial courts that had heard the two cases. So in California, the state would stop enforcing Proposition 8 based on Judge Walker’s order, but the question of whether bans like it were unconstitutional would go unaddressed. And while Edie Windsor would get her money back, per the New York district court’s order in her case, DOMA would remain the law of the land.
“It’s almost like they are leaving themselves an out,” said Josh Lipshutz, a former Scalia clerk had recently joined the Gibson Dunn Prop 8 team.
When the call was opened up to reporters, Boies acknowledged some “mixed feelings” about the Court’s decision to review the Ninth Circuit ruling, even as he pronounced himself “encouraged and excited.” But Olson made no pretense at being disappointed. He felt as strongly as ever that this was the right case at the right time, and, as he once put it, any good poker player knows that is the moment to “go all in.”
“I think it’s going to be so important for the Supreme Court to address the merits here,” he said, ostensibly to the reporters, but in reality to the justices. “We all felt all along, that this case was—and we said it in our briefs filed in the Supreme Court—that this case was a perfect vehicle to decide the fundamental rights of all Americans with respect to the right to marry.”
“As much as we want to get married,” said Kris, who was also on the call, “what we have ultimately wanted was the, the very biggest and broadest, boldest outcome possible. And that can only happen if the Supreme Court listened to our case.”
Hanging up, Boutrous turned to Olson. The adrenaline was still pumping, but the enormity of what the case meant to so many people suddenly hit them both at once.
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“Now,” Boutrous said, “all we have to do is win.”
THIRTY-FIVE
SELMA TO STONEWALL
On January 18, 2013, Ted Olson returned to the U.S. Department of Justice, David Boies and Terry Stewart in tow, and made his way up to an ornate conference room on whose walls a photo of Olson still hung, where he was greeted by a man whose job he once held: Donald Verrilli, the solicitor general of the United States of America.
Verrilli, a mild-mannered man with a salt-and-pepper mustache, had taken over the office in 2011, after the Justice Department’s internal deliberations led it to take the position that DOMA’s denial of federal benefits to same-sex couples was unconstitutional. Olson was a man on a mission, there to convince Verrilli that the time had come for the administration to get off the fence and do the same in the Prop 8 case, by filing a brief with the U.S. Supreme Court that embraced a constitutional right to marry for gays and lesbians.
Part of the strategy in any major Supreme Court case involves marshaling outsiders to file amicus curiae, or “friend of the court,” briefs that augment the primary arguments. All parties in the marriage case had been hard at it since cert was granted in December.
Cooper, for instance, had been working with Nelson Lund, a professor at George Mason University School of Law, on a brief arguing that the case should be decided solely on the basis of the law, not social and behavioral science “with a long history of being shaped and driven by politics and ideology.” A number of state attorneys general from parts of the country where same-sex marriage was outlawed had filed another arguing that it was within the states’ purview to define marriage. Officials from different religious denominations had weighed in on both sides of the debate. And dozens of briefs, with the guidance of both Olson’s and Robbie Kaplan’s teams, had been filed in support of the four Prop 8 plaintiffs and Edie Windsor.
