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 Supreme Court has announced it will look at two gay marriage cases. Chris Matthews feels a thrill running up his leg. Shivers are probably the right response. But not necessarily the Matthews kind. The Court’s consideration of the sweeping challenge to California’s Proposition 8 raises the odds that the Supreme Court strategy may backfire—a risk that the modest challenge to the Defense of Marriage Act was likely to avoid.
Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog, where this piece was originally posted. Here is how I think the nomination process is likely to play out. I divide it into process and substance. First, the process: Note the relationship between Monday’s announcement and the Senate calendar. There are seven weeks between Monday and June 28.
The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal defense of politically unpopular clients and to impose a kind of ideological litmus test on Justice Department service. They were also, at least in part, about friends and professional acquaintances.
During every presidential campaign for the last two decades, liberals have predicted an apocalypse in the Supreme Court. In their dire visions, as many as four justices are always about to retire, meaning that a Republican victory would turn the court radically to the right and lead to the certain overturning of Roe v. Wade. In each of the past three elections, of course, these hyperbolic predictions have turned out to be wrong.
Most political activists can point to one catalyzing event, an episode in each of their lives (or, more often, in the life of their country) that shook them from their complacency and roused them to change the world. You can find many such stories if you troll through the netroots, the online community of liberal bloggers that has quickly become a formidable constituency in Democratic politics. But the episode that seems to come up most often is the Florida recount.