closes and then the plaintiff gets a
rebuttal. That rebuttal is probably the
hardest single argument you have to
make because you have to respond to all
of the other side’s arguments. You have
to do it without any preparation, and you
have to do it in a limited period of time.
The argument that Ted gave in rebuttal,
in the closing arguments, I thought was
the best 30-minute argument that I’ve
heard in any court, anywhere, at any time
in the last 50 years. He went through
each of the points that the other side
had made—each one of their legal and
factual arguments—and ended it by
describing the history of discrimination,
and saying directly to the judge, “No
one’s ever going to be in a better position
to decide this than you.”
Every judge is, at some level, reluctant
to take that first step. Somebody had to
take the first step of saying segregation
is wrong. Somebody had to take the first
step at saying barring interracial marriage
is wrong. Somebody had to take that first
step. But it’s always hard.
I think that was important in getting the
judge to the point of not only believing we
were right, but being prepared to rule that we
were right, and then write an extraordinary
opinion that I think ought to be distributed
in every high school and college civics class.
Because it talks about the journey this country
has taken toward the goals of equality that
were articulated by our founders, but omitted
to a great extent in practice by our founders.
It’s a lesson in the history of our country and
the culture of our country.
Q: How is Redeeming the Dream, your
book about Prop 8, coming along?
Boies: Slowly. I’ve never had a book that
didn’t come along slowly.
Olson: Two people writing a book is harder
than one person writing a book, because
you have to worry about the voice, you
have to worry about how can we talk about
ourselves without sounding too full of
ourselves. Both of us remember reading
books by lawyers that inspired us when we
were deciding to become a lawyer. We’d
like to live up to that.
Q: What is your process? Do you each
write portions that you were involved in?
Olson: We’re doing a little of that. David just
described for you his perception of when I
was doing the closing argument. I’m going
to do something from my perspective of
sitting next to David and watching him—
David is a genius and an artist—doing cross-
examination. We’re both writing a chapter
about why we took the case.
Q: Why did you take the case? Or do you
want us to buy the book first?
Boies: [Smiles] Do both. We’ll tell you, but
then buy the book.
Olson: I grew up in California, as did David.
I’m proud to be a Californian because
it’s a state where things often happen
first. When you put people from different
backgrounds and different places together,
you get this chemistry that takes place.
[You get] Silicon Valley, the movie industry,
the aircraft industry.
When California enacted that statute,
I thought, “That’s awful. That’s not
California.” It’s not America, but it’s
particularly not California. It’s a bad place
for this to happen. It’s hurtful to people.
Hurtful to loving, lovely people.
Boies: My whole experience as a lawyer has
been in the context of trying to vindicate
the promises that our Constitution and our
founders made. I started out as a young
lawyer as a volunteer with the Lawyers’
Committee for Civil Rights in Jackson,
Mississippi, in the 1960s and 1970s. I
brought lawsuits, including one against the
Republican National Committee in 1986 to
get an injunction against targeting minority
districts with ballot security programs that
were not uniformly applied. I believe that
this issue, the issue of discrimination against
gay and lesbian citizens, is, as the racial
discrimination issue was the defining civil
rights issue 50 years ago, the defining civil
rights issue of this century.
This is the last group of our citizens that
suffers substantial discrimination at the
hands of their own government. Their own
government is telling these people, “You’re
second class. You’re not equal. You’re not
entitled to enjoy the most basic relationship,
that of marriage, that everybody else is able
to enjoy.” The opportunity to participate in
this battle has been the most meaningful
litigation of my life.
Q: Mr. Olson, you were solicitor general
when Lawrence v. Texas was argued before
the Supreme Court in 2003. But you didn’t
participate in that case. Why not?
Olson: It was a case by individuals
challenging a Texas [anti-sodomy] statute,
and the federal government wasn’t a party to
that case. [We] decided that we didn’t have
a substantial federal interest with respect to
the constitutionality of those state statutes.
I think there were some people in the
administration that would have liked to have
taken the side of Texas, but I wouldn’t have
been comfortable at all with that.
Q: Did you know each other before Bush
Boies: Just as two people who are relatively
experienced and somewhat prominent in
the legal profession will know each other.
I think it was the occasion of Bush v. Gore,
when we were very involved, intensely, the
two of us, [that we became friends]. You
get to know somebody on the other side,
in that kind of case, really well. You know
their strengths, you know their weaknesses.
Olson: [Mock surprise] Weaknesses?
Boies: [Smiles] Red wine, uncomfortable
Olson: We’ve never had a disagreement
that got personal. We have fun talking
about things, but we mostly talk about
other things than whether we would vote
for a certain piece of legislation or different
ways to solve the budget. That’s not
much fun. As far as the practice of law is
concerned, even when we’re on opposite
sides I have enormous admiration for
David’s legal skills. I find myself almost
hypnotized when I’m watching David in
court, because he’s so good, so persuasive,
that I have to hold myself back from
agreeing with him.
Boies: Let yourself go.
Olson: You asked earlier about anything
that surprised us about working together.
One of the things that I thought was
remarkable is that David’s team and my
team worked together seamlessly. There
were never any egos. There was never
any putting one side in front of the other.
There was never anybody saying, “I want
to do this, you can’t do it.” Everybody was
selflessly involved in putting this together.
Boies: Probably 30 people from Gibson, Dunn
& Crutcher. We had about 20 people.
Olson: Not to mention the paralegals and