by Becker, Jo
Now, all he said was this: “I just wonder if—if the case was properly granted.”
It seemed clear, in that moment, to lawyers on both sides, that it had likely been the four conservatives who had voted to grant cert. No one could know for sure, but it sounded like Justice Kennedy had not wanted to hear this case, at least not at this time. That, in turn, could explain why the liberals on the Court all seemed intent on finding a way to avoid deciding the constitutionality of Proposition 8.
On occasion, the Court dismisses a case, effectively deciding that it had been a mistake to grant cert in the first place. In Supreme Court lexicon, it’s called a “DIG,” for dismiss as improvidently granted. And, like Justice Kennedy, Justice Sotomayor seemed eager to DIG this one.
“If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” she asked Cooper.
The question might have stemmed from a desire by Sotomayor to protect the Ninth Circuit’s ruling from a conservative majority she feared now might be ready to uphold laws like Prop 8 banning same-sex marriage. But there was no way to know as the questions kept flying.
“Because, Your Honor—”
She interrupted. “We let issues perk, and so we let racial segregation perk for fifty years from 1898 to 1954.”
“Your Honor, it is hard to—” Cooper managed, before she jumped in again.
“And now we are talking about, at most, four years.”
Justice Scalia jumped into the fray.
It takes just four votes to grant cert. A majority of five justices may do whatever they like, including deciding to dismiss a case that four justices had believed should be heard. But as a matter of form and comity, the justices who lose the cert battle generally just decide the case. If that courtesy was followed in this case, one of the justices who voted to hear the case would have to change his or her mind and agree to DIG the case, which Justice Scalia seemed to intimate was unlikely to happen.
“It’s too late for that, too late for that now, isn’t it?” he said, a note of triumph in his voice. “I mean, we granted cert.” Then, in what some saw as a direct slap at Kennedy, he appeared to reference Kennedy’s comment, just before voting to uphold Roe v. Wade, about feeling like Caesar crossing the Rubicon.
“We have crossed that river,” Scalia declared.
Sitting there, Boies could not help but think it was not going as planned. “We were both surprised about the DIG suggestion,” he said afterward. “Justice Kennedy seemed unhappy—on the one hand this, on the other hand that. The general sense, and it wasn’t just Kennedy, the general discomfort around this case surprised me a little bit.”
At the lectern, Cooper tried his best to protest to both Sotomayor and Kennedy. A DIG, undoing the Court’s decision to grant cert, would effectively bless the Ninth Circuit’s ruling that, as Cooper put it, “at least in the state of California, the people have no authority to step back, hit the pause button, and allow the experiments taking place in this country to further mature.”
Of course, there was another route for the justices to sidestep the case: they could find that Cooper’s clients had no standing to appeal Judge Walker’s decision, a route that Justice Ginsburg seemed especially eager to embrace. “Have we ever granted standing to proponents of ballot initiative?” she demanded of Cooper. “The concern is, certainly the proponents are interested in getting it on the ballot and seeing that all of the proper procedures are followed, but once it’s passed, they have no proprietary interest in it. It’s law for them just as it is for everyone else. So how are they distinguishable from the California citizenry in general?”
She was egged on by Roberts, the Court’s standing hawk. When Olson tried to open by saying that Proposition 8 was really about “stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second rate,” Roberts cut him off. “Perhaps you could address your jurisdictional argument.”
Listening, especially to the Court’s liberals, Terry Stewart felt heartsick, as the hope she had started to harbor ran up against the justices’ words. “I’m not in a good space,” she told her wife, Carole, afterward.
“They didn’t seem to like the broad argument, they didn’t seem to like the narrow argument, and it just felt painful,” she said. “It was like, ‘What are you doing bringing us this case?’ like a collective stiff-arm: ‘Get away from me.’ It was like they didn’t even want to touch us.”
“It was rough on both sides,” Paul said.
The plaintiffs, along with their families, and Chad and Kristina, were back on the bus. Everyone was trying to analyze what had gone on inside the Court, without the benefit of the lawyers, who had taken a separate car.
The two couples had emerged from the Court with Chad, Olson, and Boies. The scene around them had been a zoo, with the network reporters who had been listening to the arguments racing past to connect with crews and go live, and there was no time to talk before they were standing at a podium, mics pointed at them.
They had not been there to hear Hilary Rosen’s comment to Ken Mehlman. “Pete Williams is being super negative right now,” she had said, referring to NBC News’s justice correspondent. “He said very little eagerness on a broad ruling, and it’s been retweeted thousands of times.”
Boies had reiterated that they should not try to read too much into what the justices had said, and for the most part they focused on the positive as the bus made its way across town to Morton’s Steakhouse for a postargument lunch that Olson had arranged.
“The justices were fascinating, fascinating,” Kris said. “It was very rapid-fire. The justices were interrupting each other. Their heads”—she grabbed her own—“there’s just so much going on!”
Everyone talked about the moment when Justice Kagan had pounced on Cooper’s argument that laws like Prop 8 are justified because marriage is an institution designed to further responsible procreation. “Suppose a state said that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of fifty-five,” Kagan had asked. “Would that be constitutional?”
“No, Your Honor,” Cooper had said.
But when he tried to suggest that even with respect to couples over the age of fifty-five, it would be rare that both the man and woman would be infertile, Kagan was having none of it.
“No, really,” she said, as people in the courtroom began laughing. “I can assure you—if both the woman and the man are over the age of fifty-five, there are not a lot of children coming out of that marriage.”
“It’s almost like she trapped him,” Jeff said.
Sandy thought it was strange that Justice Thomas had swung around in his chair, turning his back to the Court. He had famously not asked a single question during oral arguments in years. Elliott thought that Justice Ginsburg looked old and frail, with the tall back of her chair towering over her, and her whispery voice barely audible.
“I just wanted to help her out,” he said chivalrously.
The consensus was that that the solicitor general had done well. He was particularly strong in rebutting Cooper’s argument that it was rational for California voters to want to wait a bit and let the marriage debate play out elsewhere. “California did not, through Proposition 8, do what my friend Mr. Cooper said and push a pause button. They pushed a delete button. This is a permanent ban. It’s in the [state] constitution.” He also hit back on the not-enough-data theme, telling the justices that the same argument was used in the 1967 Loving v. Virginia case, when defenders of interracial marriage bans had argued that social science was still uncertain with regard to how biracial children would fare. “And I think the Court recognized that there is a cost to waiting and that that has got to be part of the equal protec
tion clause.”
But it seemed clear to everyone on board the bus that the justices weren’t buying the narrow argument he was selling. “I thought he got questioned pretty harshly on his eight-state solution,” Sandy said.
The liberals had been particularly antagonistic. Justice Breyer quickly picked up on the perverse incentive that would be created if the Court were to agree with Verrilli’s argument that it is particularly irrational for states like California, which offer gays and lesbians all the benefits of marriage but the name, to ban them from marrying. “A state that does nothing for gay couples hurts them much more than a state that does something . . . I mean, take a state that really does nothing whatsoever. They have no benefits, no nothing, no nothing. Okay?” Breyer had said. “So—so a state that does nothing hurts them much more, and yet your brief seems to say it’s more likely to be justified under the Constitution.”
Jeff and Paul talked about the “give me a date moment,” when Scalia had asked Olson about when, precisely, it became “unconstitutional to exclude homosexual couples from marriage? Seventeen ninety-one? Eighteen sixty-eight, when the Fourteenth Amendment was adopted?”
Boies would later say he would have liked to tell him that it happened when Justice Scalia said it did, in 2003, in the Lawrence decision that struck down laws criminalizing sodomy, the one that Scalia, in his scathing dissent, said left “on pretty shaky grounds state laws limiting marriage to opposite-sex couples.” But Olson, unwilling to spend a lot of time debating the original intent of the framers with a justice unlikely to be in his corner no matter the answer, had shot back with some questions of his own.
“When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?” It happened, Olson finished, “when we—as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that—”
Scalia interrupted him. “I see,” he said, voice dripping with sarcasm. “When did that happen? When did that happen?”
During oral arguments before the Supreme Court in the Bowers v. Hardwick case, which upheld laws criminalizing sodomy before the Lawrence decision struck them down, then–chief justice Warren Burger had blurted out, “Didn’t they used to put people to death for this?” This morning’s rhetoric had been tame by comparison. “I expected much more vitriol,” Chad told Kristina.
Still, at times it had been difficult to just sit there. When Justice Alito started talking about the newness of same-sex marriage and the lack of data, Sandy grew angry. “I’m not an experiment,” she thought.
Spencer wondered whether Justice Scalia knew that that he and Elliott were sitting there when, in an effort to help out Cooper, he suggested one reason a state might be justified in banning gays and lesbians from marrying was to keep them from having kids. Cooper had been getting grilled by Justice Kagan, who kept demanding to know what harm would be caused if gays and lesbians were permitted to marry, and Justice Kennedy had picked up on it, asking, “Are you conceding that the point there is no harm or or denigration to traditional opposite-sex marriage couples?”
“It seems to me that you should have to address Justice Kagan’s question,” Kennedy had said.
“Mr. Cooper, let me—let me give you one—one concrete thing,” Scalia had interjected. “If you redefine marriage to include same-sex couples, you must—you must permit adoption by same-sex couples, and there’s—there’s considerable disagreement among—among sociologists as to what the consequences of raising a child in a—in a single-sex family, whether that is harmful to the child or not. Some states do not—do not permit adoption by same-sex couples for that reason.”
“That hit pretty close to home,” Spencer said.
Overall, Jeff’s mom asked, how did Cooper do? There had only been enough tickets for three family members to watch the arguments, and she and Paul’s sister had volunteered to give up their seats and attend the rally instead. When the National Organization for Marriage had marched by, Jeff’s mom had been outraged by some of the signs. “How dare they,” she’d said.
“He did a good job,” Sandy said.
“He brought his A game,” Kris agreed.
They had been sitting near Cooper’s wife, who had waved and smiled at them before the arguments started. Cooper, spotting Kris afterward as she made her way down the stairs, had made a beeline over to her. He looked her in the eye and warmly shook her hand. They had all been at this for years now, albeit on different sides. The courtesy he showed her felt good, and she had responded in kind. He was just doing his job; he had never made it personal.
“I felt like he respected our struggle and our right to be there, making these arguments, and that there were no hard feelings,” Kris said.
Cooper and his team were already at the Monocle, a restaurant on Capitol Hill where they always went to relax and recover at oral arguments. The Court had asked penetrating, difficult question of both sides, Cooper thought, and it could go either way.
“For the first time in this case, I don’t know how it’s going to turn out,” he said a few weeks later, after he had time to digest it all. “And that feels pretty damn good.”
At the plaintiffs’ gathering across town, a good deal of wine had been poured by the time Olson and Boies rose to speak. The lunch at Morton’s was in full swing, and everyone was eager to finally hear the blow-by-blow assessment of the two lawyers. In the background, a television was playing the just-released audio of the argument. But neither Boies nor Olson wanted to dwell on what had happened, and they spoke mostly in platitudes.
“I think we took a big step forward today,” Boies said, noting that there were plenty of conflicting views as the justices struggled to find a “route for us.” But he quickly moved on to a hypothetical world in which he would get to cross-examine Justice Scalia, as he had the witnesses at trial. “He, also, would have no place to hide,” he said.
Olson, too, talked about the district court trial, and Boies’s withering cross-examination, until finally Michele Reiner finally put her foot down. ”You might not want to do this,” she said. But everyone else would like to hear Olson’s thoughts about how the hour and a half they had just spent before the U.S. Supreme Court had gone.
Earlier, on the steps of the Supreme Court, the Reiners and Ken Mehlman had buttonholed Matt McGill, who tried his best to give them an honest assessment. “I was encouraged by Justice Kennedy’s question, recognizing that there’s kids on the other side of the equation,” he said.
Why did they spend so much time on standing? Michele asked.
“Because I think there are doubts,” McGill replied. “I think the chief justice certainly had doubts.”
But Olson mostly ducked, talking about the moots, and the process, and how he would read the transcript later to see how it had all shaken out, before returning to the courtroom that had delivered them their greatest victory to date, Judge Walker’s.
As the get-together broke up, Kristina tried not to jump to any conclusions. She had known, going in, that “we were all going to feel a little sick to our stomachs after it was all over, because of the tough questions that would be asked,” as she put it, and she knew as well as anyone that the Court was hard to predict. After the justices heard arguments on Obama’s signature overhaul of the nation’s health care laws, it looked to most to be dead on arrival. Instead, the chief justice switched his vote, and when the decision came out, the law was upheld.
But it was odd, she thought, that Olson and Boies spent so much of lunch reliving the glory days of the trial. Everyone was feeling raw and emotional, and they needed to hear the lawyers say that it would all turn out okay. And Olson’s half-joking farewell had left her even more unsettled.
“Well,” he said as he passed by her near the coat-check room, “if we lose, hopefully people will remember the party.”
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THIRTY-EIGHT
“SKIM MILK MARRIAGES”
Robbie Kaplan was not known for having a Zen personality. But the typically frenetic lawyer took her seat at the counsel table for her first Supreme Court argument feeling refreshed and unusually relaxed.
Weeks earlier, she had attended an oral argument, just to watch how the justices interacted with each other and the lawyers before them. She’d been sitting behind two women military lawyers, both of them in uniform. When one of them started talking about her wife, Kaplan took it as a sign. “We’re going to win,” she said to herself.
Nothing that had happened since had changed that view. The argument fell on the week of Passover, commemorating the liberation of the Israelites from slavery in Egypt. That Sunday, at a Seder dinner she had hosted at the Mandarin Oriental Hotel for Edie and her entire legal crew, everyone had agreed that it did not feel coincidental that their case would be heard over a holiday that celebrates freedom.
Watching the justices grill Olson the day before during the Proposition 8 arguments had not intimated her in the slightest. “There’s nothing I can’t handle, even Scalia,” she said she thought. “I’ve been in front of angry judges before.” And while she’d been worried for months about arguing her case alongside Olson’s, listening, she had actually decided it was a good thing: Olson’s big ask made her request to the Court look like small potatoes.
And so, after heading back to her hotel, she’d ordered in some room service Thai curry chicken, done a little reading, and gotten a massage, before swallowing two NyQuils to ensure a good night’s sleep.
Waking up, she said she had just one thought: “Let me at ’em. I’m ready.”
At the counsel’s table across the way sat Paul Clement. “Fasten your seat belt,” Cooper had told him when he’d agreed to defend DOMA, but Clement had still been caught off guard when his firm, King & Spalding, moved to withdraw from the litigation amid fierce criticism.
