(L-R) Olson and Boies, with Prop 8 plaintiffs Sandy
Stier and Kris Perry, depart the U.S. Supreme Court
on June 24, 2013. “We try to win over everybody,”
Olson says. “Some are harder than others,” Boies
adds. REUTERS/Jonathan Ernst
that discrimination does when it’s against classes
of our citizens based upon their characteristics—
the color of their skin or, in this case, their sexual
orientation—then the Supreme Court decides it.
But it’s because we realize that there are a class
of people that are distinguished because of who
they are—their immutable characteristics.
We accepted slavery and we accepted
discrimination and we accepted putting Japanese
citizens in concentration camps in California.
When did that become unconstitutional? That’s
a rhetorical question that gets asked in Supreme
Court arguments, and Justice Scalia, and I admire
him enormously, is very good at it. But I think
the answer is that it’s right now, here before your
eyes, and you can declare it for the United States.
Q: Do you think your Virginia case, or another
of the marriage equality cases, is going to wind
up with this court? They seem to not want to
decide the matter.
Olson: You never can predict which case the
Supreme Court is going to take. We don’t know
when it will come. But it’s going to come.
Q: Even Justice Ginsburg seems cautious about
Olson: She is a person who has a cautious judicial
Q: And Justice Scalia? Can you win him over?
temperament. I have great admiration for Justice
Ginsburg. She fought her whole life for the rights
of women; she is a warrior in the Supreme Court on
those issues. Now, we don’t predict what specific
justices are going to do in any particular situation,
we just do our best to try to persuade them. It
takes five votes, and the Court is interested in
reasonable cohesion with respect to its decisions.
Olson: We try to win over everybody.
Boies: Some are harder than others.
Q: What have you learned about each other
from working together?
Boies: If there was one—I won’t say surprise—[it
was] in the closing argument in the [California]
trial court. The plaintiff obviously closes first, then
the defendant 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: Did you know each other before Bush v. Gore?
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 shoes.
In the aftermath of that, we became close friends.
Q: How did it come about?
Boies: Ted was nominated for Solicitor General.
There was some small controversy about that. I
had been Chief Counsel of the Senate Judiciary
Committee when Ted Kennedy was chairman, and I
knew a lot of the people on that committee from the
Democratic side very well. I spoke to them on Ted’s
behalf. In the following fall, I asked Ted to present