THE LAW JANUARY 14, 2013
One of the most remarked-upon aspects of the upcoming Supreme Court challenge to California’s gay-marriage ban is the odd couple leading the charge: Ted Olson and David Boies, the conservative and liberal superlawyers who squared off in 2000 in Bush v. Gore. Much less is known, however, about the old friendship between Olson and their opponent in this case, Charles Cooper, one of the many lawyers who helped Olson on Bush v. Gore. Cooper and Olson are both part of Washington’s tiny tribe of top-flight conservative litigators. Given their similar resumes, it is odd to find them on opposite sides of one of the most politically contentious Supreme Court cases of the 21st century. When Olson and Cooper face off before the court in late March, they’ll not only be debating gay rights, but the nature of conservatism itself.
Cooper, known in Washington as “Chuck,” is from Alabama, and he’s best known for his starched French-cuffed shirts and genteel southern formality. His way of speaking, once described by Washington Post columnist Mary McGrory as “Victorian copy book prose,” can come across as impressive or a little unctuous, depending on the listener. If Olson, who also has a flair for oral arguments, is the lawyer who argues before the court this spring, he and Cooper will be evenly matched.
The two lawyers met in the Reagan Justice Department in the early ‘80’s. Olson was head of the Office of Legal Counsel and Cooper was a young lawyer in the Civil Rights Division, fresh from a clerkship with Justice William Rehnquist. One morning, arriving at work, Cooper found a surprise. “I walked into my office and there’s this, there’s this woman, with long gorgeous blond hair asleep on my couch,” he recalls. The woman, Barbara Bracher, was a law student doing research on the Bork confirmation hearings and had fallen asleep after a late night. Years later, she would marry Olson, and Cooper would be at their wedding. When Olson retired as the head of the Office of Legal Counsel, Cooper took his place.
Even in the Reagan Justice Department, it was clear that despite their shared conservatism, the two men had different ideas about how to apply it. Cooper calls himself “an unrepentant and avowed originalist,” who “believes the letter of the law sticks” until the people change it through the political process (that is, through Congress, not through an intervention from the administration or the courts). Olson may generally agree, but he was always more pragmatic than Cooper, especially when it came to controversial policies. Olson – whose stance on gay marriage has led some conservatives to accuse him of promoting judicial activism – told me he had never thought about whether he approached the law differently than Cooper. “I think you’ll have to get that from someone else,” he said. According to Brad Reynolds, a former assistant Attorney General who worked with both of them, “they are both originalists, both strict constructionists, but there are gradations ... Ted is more ready to maneuver the argument various ways to make it more appealing to certain people.”
These two approaches generally collided then – as they are now – over social issues. In 1981, Cooper joined a group of Justice Department lawyers who recommended that the Reagan administration reverse a long-standing IRS policy that denied tax-exempt status to Bob Jones University because of its ban on interracial dating. Olson wanted to uphold the rule. “Chuck saw it as an issue that really should have been focused exclusively on the authority of the IRS to issue this kind of a regulation, and the fact that it had the discrimination overtones should not get in the way of making the legal argument,” Reynolds explained. Cooper says that taking such an unpopular stand was “an early test” of his legal philosophy because “there’s nothing in me that would ever tolerate racial discrimination.”
Olson, Reynolds recalls, had more practical concerns. He was worried that the challenge would fail in court and thought the administration should avoid a big battle over discrimination. Olson declined to elaborate on his position when we spoke. Ultimately, the Supreme Court voted 8-1 to support the IRS’s policy against Bob Jones.
Cooper took a controversial stance with regard to discrimination again in 1986, after he had taken over the OLC, when he argued that the federal government could reject job candidates with AIDS out of fear of contracting the disease. Cooper again claimed to be relying on a strict reading of the law as written – the law prohibited discrimination against people on the basis of a physical handicap, he argued, but it didn’t say anything about a fear of contagion, which as a legal matter, was something else entirely – but the decision ignited a firestorm of controversy, angering health experts who said it propagated the dangerous myth that AIDS could be transmitted through casual contact. Again, as it had with Bob Jones, Cooper’s rigidity with respect to the strict meaning of the law trumped his concern for how it might affect people.
“Chuck never knew anyone with AIDS. He couldn’t’ even envision putting himself in the place of knowing someone with AIDS,” explains Doug Kmiec, who led the Office of Legal Counsel after Cooper. Kmiec, who generally saw Cooper as a reasonable person, nonetheless thought his principled stances could be flawed. “I think if there is a human failing in formality, it prevents you from getting close enough to see that the other guys have feelings.”
When I asked Cooper about the memo, he said he couldn’t think of any reason why he wouldn’t stand by his position, but he also hinted that he might be willing to reconsider it now. “I would be willing to re-examine anything I’ve ever thought in the past to see if it owns up to any new information,” he said.
Now, arguing against gay rights in the California marriage case, Cooper insists that his legal position stems from a passionate belief in the rule of law and has nothing to do with a desire to discriminate. If California voters had gone the other way and passed a law redefining marriage to include same-sex couples, he said he would be “the first lawyer to defend the state.”
Cooper seemed sincere about his motives, but he is also an extremely successful lawyer, who has had his pick of battles, and nonetheless has chosen some disturbing places to protect the rule of law. Kmiec, a conservative who has found himself on the conservative and liberal side of issues, says that the great failing of conservatives like Cooper is their desire to deal only in abstractions, a pitfall that Olson seems to have avoided. “They are very strong intellectually, but [if] you’ve ever been to a Federalist society meeting, you’ll see they tend not to want to deal with flesh and blood.”