Earlier this week the iconic appellate advocate Ted Olson was back in the news, advocating for marriage equality. Having worked with David Boies to overturn California’s ban on same-sex marriage, he and Boies are now focusing their attention on Virginia. Their goal is to persuade the Supreme Court of the United States that the United States Constitution provides gays and lesbians with the right to marry the partner of their choosing. As you may know, the Boston Bar Association (BBA) is proud to have worked on this issue for more than a decade.
At the BBA, we’re still feeling the exhilaration of hearing Ted talk to some 1,400 lawyers and judges at our Annual Meeting Luncheon last Friday. Here are just a few things many of us find so admirable about the former Solicitor General who has argued 60 cases before the Supreme Court and prevailed in 75 per cent of these arguments:
- Despite having argued against David Boies in Bush v. Gore, he welcomed Boies as his co-counsel in this series of marriage equality cases. This tells us he cares deeply about the Constitution as a living document whose importance takes precedence over partisan issues. What a great lesson for all of us in a country that could benefit from dialing down the divisive dialogue.
- A model of civility, he doesn’t let his personal political allegiances get in the way of being an effective advocate for larger issues. As he told us on Friday, he figured that if people could see “two old white, straight guys” from different sides of the political aisle coming together to argue for marriage equality, this would help them win in the court of public opinion.
- Ted Olson has extraordinary respect for the Supreme Court as an institution and deep respect for its nine justices, because our third branch of government answers the tough questions perhaps too hot to handle for the executive or legislative branches.
A veritable encyclopedia of information about the Supreme Court, Olson began by reminding us that the court’s first chief justice, John Jay, served just seven years, declining re-appointment, echoing Alexander Hamilton’s comment in Federalist No. 78 that “the Judiciary branch of the proposed government would be the weakest of the three because it had “no influence over either the sword or the purse,. . . It may truly be said to have neither FORCE nor WILL, but merely judgment.”
He went on to say that the next chief justice, John Marshall, cemented the court’s authority as being the final arbiter of what the Constitution means in Marbury v. Madison. As for the importance of the court today, Olson observed that “there is virtually no issue affecting our lives that the Supreme Court has not touched.”
Among Olson’s observations on the Roberts Court. . .
- The concept of diversity on the Supreme Court is far more complex than meets the eye. While the court now has 3 women, 1 African American, and 3 Jews, all of them have gone to the handful of Ivy League colleges or law schools from which their white male counterparts graduated.
- The confirmation process, once unanimous, has become overtly political – with every confirmed justice receiving negative votes not based on qualifications. “This change is permanent and not for the better,” he observed.
- During John Marshall’s tenure the court spoke with one voice; Chief Justice Roberts has realized that’s not going to happen.
- Cases involving new technologies will continue to be prevalent in the term that started this week.
Many of us came away nodding our heads in agreement at his conclusion that the Supreme Court is a model for the functioning of any government institution, because the cases are argued in open court, and then decided in writing before a year’s time. The crowd’s enthusiasm for Ted Olson’s remarks was palpable, as was his respect for the role of the Boston Bar Association as a non-partisan organization.