by Becker, Jo
In addition to Holder and Verrilli, Ruemmler, his White House counsel, and Denis McDonough, his chief of staff, were also in attendance. The meeting lasted close to an hour, an extraordinary block of presidential time that spoke to the importance of what they were discussing. “This was not a briefing,” Holder recalled. “This was an interaction. This wasn’t where we were getting him up to speed for a decision. This was a meeting of equals in terms of knowledge of the facts, knowledge of the law. This was four lawyers and then Denis getting together to talk about what the appropriate position was.”
Anticipating what the justices might do, “the president was asking Don very hard questions,” Ruemmler recalled, including how the court should reconcile Obama’s own prior comments that definition of marriage was a matter that should be decided by the states.
“He was almost using us to question himself, to check his own—where he may have been himself,” Holder said.
At Chad’s request, Ben Jealous, the head of the NAACP, had joined him in coauthoring a private letter to the president, pleading the case for intervention. Chad had also lobbied Vice President Biden’s chief of staff. But the president did not need to be persuaded on the larger moral question; he too saw the marriage debate through the prism of civil rights, according to both Ruemmler and Holder.
Obama had seen firsthand just how much his endorsement of marriage equality meant when one of the first lady’s good friends told him afterward that it took the president’s words for his mother to finally really accept him.
With everyone in agreement on the threshold question of whether the government should take a position, much of the rest of the meeting was dedicated to what position it should take. The president had in the past spoken to Holder about the fragility of the Court’s power. Now, he talked about Justice Kennedy’s devotion to federalism and states’ rights. He made it clear that he wanted to offer the justices an incremental way to decide the Proposition 8 case that would not force them to overturn bans across the country.
“By the time we leave,” Holder said, “we know what position we’re taking, what our strategy is, and it’s all decided at that point.”
On the afternoon of February 28, Ruemmler called Chad with a heads-up: When the plaintiffs stood before the justices, they would not be standing alone. Standing with them would be the U.S. government. “The next time I see you will be at the Supreme Court,” she said.
Jarrett called him next, excitedly talking about what a historic moment it would be when the solicitor general argued the case alongside Olson in just a few short weeks.
The administration’s brief, filed at 6:30 P.M. that evening, argued that Proposition 8 violated the Constitution’s equal protection clause. And, as the president directed, it offered the Court a path to rule in favor of the Proposition 8 plaintiffs without going the full distance. In what became known as the “eight-state solution,” the solicitor general said that while heightened scrutiny should be applied to all same-sex marriage bans, those bans were particularly hard to justify in the states with domestic partnership laws that offered all the benefits of marriage but the name. Besides California, that argument would cover Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.
Chad instantly sent out a press release: “The President has turned the inspirational words of his second inaugural address into concrete action.”
Then he and Adam, who had relocated to Washington, D.C., in advance of the arguments, headed off for a celebratory frozen custard at a nearby Shake Shack.
THIRTY-SIX
FRAMING THE ARGUMENTS
Robbie Kaplan did not want to be arguing her case alongside Olson, any more than he wanted to be arguing his alongside hers. But the Court had not given either of them any choice in the matter, which was why the two legal teams converged in a conference room at Gibson Dunn on March 15.
In less than two weeks, the Court would first hear arguments on the constitutionality of Prop 8 in the Hollingsworth v. Perry case on March 26, followed by the DOMA arguments in United States v. Windsor on March 27. Each side would have just thirty minutes to make its case, and ten minutes of Olson’s and Kaplan’s time would go to the solicitor general.
Preparing for a Supreme Court argument is a little like running a marathon: It is important to train hard and do some shorter practice runs in the lead-up, but not so many as to risk exhaustion. The way appellate advocates do that is through practice sessions known as moot courts. The mock arguments are mentally draining, as lawyers playing the justices poke holes in the advocates’ arguments, trying to goad them into making mistakes, and afterward offer strategic, and sometime contradictory, advice on how to avoid traps.
“I think of it as spring-loading yourself,” said Ted Boutrous, who was helping to coordinate the prep sessions. “You have to consume all this information and have it at your fingertips, and it involves screening out everything else. You really are trying to get into this space.”
Both Olson and Kaplan had already done several moots, but this was their first and only together, and it was especially critical given the built-in federalism tensions between the cases. Care needed to be taken to ensure that an answer by one could not be used against the other.
The teams were as different as could be. The Proposition 8 team was led by two straight men; Kaplan’s was predominantly female, and led by three lesbians; Kaplan had recruited Pam Karlan, the codirector of Stanford Law School’s Supreme Court Litigation Clinic, and Mary Bonauto, the gay-rights lawyer who had filed the two DOMA challenges the Court failed to take, to help her.
Olson, as a veteran advocate, was used to multitasking, and up until a few weeks before had been juggling several other major cases as well as several joint projects with Boies; the two had filmed a pilot legal talk show for Bloomberg TV and had announced a book deal. Kaplan, who had never before argued before the Supreme Court, had in recent months devoted more than half her time to Edie’s case alone, at one point barely leaving her apartment for sixteen straight days while writing the umpteenth version of her brief.
Terry Stewart, who knew everyone on the DOMA team and had been helping to coordinate the amicus briefs that supported both cases, greeted Kaplan warmly. Coffee and snacks had been laid out, and the lawyers who had not yet met introduced themselves. Chad, whose role as president of the Human Rights Campaign meant he had to speak for both cases in the media, came in and took a seat.
While Olson had been hunkered down in his windowless, binder-strewn inner sanctum at Gibson Dunn, jotting down points and counterpoints on yellow legal pads with the meticulously sharpened number 2 pencils he insisted on using, and putting himself though his paces in the moot court sessions, Chad had been overseeing a small army that was hard at work on a final media push aimed just as squarely at the justices.
Housed in one conference room on the first floor of the Human Rights Campaign headquarters was the AFER war room operation, headed by Adam. Nearly a dozen staffers were there to handle all the press around the Prop 8 case, from reporter inquiries to live tweets to putting together video clips of the plaintiffs for the Web.
“I don’t think it is an overstatement to say that Tuesday, March 26, is going to be the most high-profile day the gay rights movement has ever had,” Adam had told his AFER team. “I want to make sure we have thought about everything.”
Next door to AFER was the Respect for Marriage Coalition, an umbrella organization comprised of all the groups involved in the legal battles as well as Evan Wolfson’s Freedom to Marry political operation. Chad had brought them together to try to ensure that the gay rights movement spoke with one voice in a moment when the justices, and the nation, would all be listening. Hilary Rosen, whose PR firm SKDKnickerbocker was fresh off the New York and Washington State victories, had been hired to coordinate the $2 million effort.
The goals of the media campaign were straightforward, though the execu
tion required a tricky balancing act. First, do no harm to the cases. Kaplan wanted to make her case to the Court, not the public, and the media blitz made her nervous. Even Olson, whose case had always been a public education vehicle, was starting to get the jitters, worried that someone might say or do something that could offend the justices. Adam, in an attempt to reassure the lawyers, had put it this way during a conversation with Boutrous: “Everyone’s going to be talking about it, so we damn well better be the ones shaping the message.”
The second, and most delicate goal: Create an echo chamber, and infuse it with a message of inevitability, with the aim of convincing the justices that ruling in their favor would put them on the right side of history without creating a backlash. To that end, the coalition had released a poll showing that even people who disagreed with same-sex marriage had accepted it was coming; 77 percent of Americans believed that same-sex marriage would be the law of the land in “a couple of years.” An ad featuring Republican supporters had gone up. “Marriage: The Country Is Ready” pamphlets tracking the sharp uptick in support across demographic groups had been mailed to five thousand journalists. The trick was to create what Rosen called a “permission structure” that would allow the Court to rule their way, without ever appearing to be lobbying the Court directly or suggesting that anything other than the facts and the law would play a role in their decision. “What we are focused on is not that marriage is a good thing, but that the country has already decided it’s a good thing. And then tying that to the Court’s place in history on this issue,” she said. “That’s the most subtle thing.”
The third and final goal of the campaign was to showcase the impact that laws like Proposition 8 and DOMA had on real families. The idea was both to demonstrate the “real harm, right now” legal imperative for the justices to act and, as Rosen described it, to continue to move public opinion in the event that the justices left gays and lesbians to the whims of the democratic process by either upholding Prop 8 and DOMA or failing to reach the merits in one or both of the two cases.
A study by the Pew Research Center of the news coverage in the week leading up to the arguments would find that the coverage of the same-sex marriage debate had been overwhelmingly positive, and it was thanks in large part to the presidential-level political operation that was working behind the scenes to make it all happen. Olivia Alair, who had been the first lady’s campaign press secretary before joining Rosen’s firm, was overseeing an operation that pitched stories and op-eds and booked handpicked, bipartisan surrogates armed with coalition talking points on the news shows. She was working closely with some of the Republican operatives whom Mehlman had recruited to the cause. “It feels strangely good,” she said of sharing trade secrets that they would normally have deployed against one another.
One day, the pitch might be about how while gays and lesbians could now openly serve in the military, when they were posted overseas their spouses were not entitled to benefits like on-post housing. Another day might focus on children, like the eleven-year-old girl who had sent each of the justices a three-paragraph letter, letting them know that in case they had any concerns about the children of gay parents, “I can tell you I am doing great,” and asking them to look at the photos she sent of her moms’ wedding and “think of us when you make decisions.”
The message of inevitability was balanced with a “hard stop” message, with surrogates making the case that only so much legislative progress could be made before it came to a grinding halt in the thirty states that had enacted constitutional bans that prevented lawmakers from voting to give gays and lesbians the right to marry.
The big news of the day involved Senator Rob Portman, a prominent conservative from Ohio who had been on Romney’s vice presidential short list. With behind-the-scenes help from Mehlman, he had announced his support for same-sex marriage in an op-ed for the Columbus Dispatch, becoming the first sitting Republican U.S. senator to do so. He had once voted to ban gay couples in Washington, D.C., from adopting, and had supported the failed effort to amend the U.S. Constitution to ensure that they could never marry, but said he had changed his mind after learning his son, Will, was gay.
“I wrestled with how to reconcile my Christian faith with my desire for Will to have the same opportunities to pursue happiness and fulfillment as his brother and sister,” he wrote. “Ultimately, it came down to the Bible’s overarching themes of love and compassion and my belief that we are all children of God.”
Chad had more than a thousand Human Rights Campaign members in Ohio write letters of thanks. He and Mehlman often talked about the need to meet and talk to people where they were at, not where they might wish them to be, and his press statement glossed over the fact that Portman had also said that he opposed judicial intervention.
“Like countless dads across the country, Senator Portman has made the basic and courageous choice to put parenting before politics,” Chad’s statement read. “When it comes to marriage equality, all Americans are on the same journey toward recognizing our common humanity. But while 8 in 10 Americans know a gay or lesbian person, it still takes unique courage to speak out publicly for equality. We are very grateful to Senator Portman for his virtuous stand in support of this civil rights cause.”
“I’ve spent the morning trying to avoid the fact that he is actually advocating a state-by-state strategy,” Rosen told Chad, as the two waited for the moot to start.
“No one’s picked up on that?”
“Not yet,” she said. “The only bad thing is that it knocked Eastman off the front page.”
John Eastman, the chairman of the National Organization for Marriage, had made their day by calling Chief Justice John Roberts’s family “second best” in an interview with the Associated Press. Eastman was explaining his view that laws like Proposition 8 were justified because they promoted an “optimal” environment in which children are raised by biological parents. But in doing so, he managed to insult not one but two of the sitting justices: Roberts was the father of two adopted children, Josie and Jack, and Justice Clarence Thomas and his wife had taken in and raised Thomas’s grandnephew.
“The [network and cable news] producers are all saying that Chuck won’t respond to interview requests,” Rosen said. “This is definitely the latest ‘I don’t know.’”
Adam laughed. “‘I don’t know,’ ‘more American,’ ‘second best’—Perry’s greatest hits.”
Just then, Matt McGill wandered over to join them. He was playing one of the justices in the moot that day.
“What do you think that Chuck did when someone sent him the Eastman link?” Chad asked him.
“He probably lost his fucking mind,” McGill said. “I know Chuck pretty well, and he can get pretty salty.”
It is often said that it is difficult to win a case based solely on the force of one’s oral argument. That is because the justices generally form their views on how a case should be resolved before a single word is uttered, based on briefs that the parties must file in accordance with persnickety Court rules that dictate everything from the typeface (Century only, please), to the number of copies (forty), to the paper stock (not less than sixty pounds in weight).
The briefs, laying out the facts, relevant case law, and arguments, must be bound into 8.5-by-11-inch color-coded booklets. The opening brief of the “petitioner”—the party that sought Supreme Court review—is light blue. The respondent’s reply brief is light red, and the solicitor general’s is gray. The briefs must condense voluminous trial and appellate records into fifteen thousand words or less. The petitioner then gets the last word in the form of a yellow brief no longer than six thousand words.
“Of the two components of the presentation of the case, the brief is ever so much more important,” Justice Ruth Bader Ginsburg once said. “It’s what we start with; it’s what we go back to.”
Good briefs are fast-paced and conversational; Justice Clarence
Thomas once said the best ones read like an episode of the TV show 24. They avoid the linguistic pet peeves of the justices; Justice Kennedy did not appreciate adverbs, for instance, while Justice Scalia was a self-described snoot, a fastidious nitpicker “for the mot juste, for using a word precisely the way it should be used.” They are direct; Justice Roberts did not want to be made to hack “through a jungle with a machete to try to get to the point.”
The briefs in both the DOMA and Prop 8 cases reflected the caliber of the lawyers involved. Kaplan’s brief was a legal love story. It opened with a detailed description of the four decades that Edie and Thea had spent together, in an effort to persuade the justices that there was no real difference between Edie’s marriage and their own. In “sickness and in health,” Kaplan wrote, they bought a home, supported one another’s careers, coped with Thea’s progressive multiple sclerosis as “she moved from a cane, to crutches, to a wheelchair,” and ultimately married, in a legal ceremony in Canada that was subsequently recognized by the state of New York.
The brief filed by Paul Clement, Kaplan’s opponent, reflected his view that DOMA was probably dead on arrival if he could not prevent the Court from applying heightened scrutiny. It played up the recent political victories with a declaration that “the democratic process is at work,” and played on the justices’ institutional concerns with a warning that “constitutionalizing an issue yields a one-size-fits-all solution that tends to harden the views of those who lose out at the courthouse.”
Cooper’s offered a sharper version of the arguments he had been making all along, branding “plaintiffs’ genderless, adult-centered understanding of marriage” an “academic invention.” Borrowing Olson’s line at the press conference announcing the case, it declared that the citizens of California bore gays and lesbians no ill will: “They are our family members, our friends, our colleagues and co-workers, our community and business leaders, and our public officials.”
