Q&A: Ted Olson
The lawyer behind just about everything
Published in 2012 Washington DC Super Lawyers magazine
By Adam Wahlberg on April 26, 2012
For a man with such an ordinary name, Ted Olson has had no ordinary career. Bush v. Gore, Proposition 8, Citizens United, ever heard of them? And the list goes on and on. It’s safe to say that no private lawyer of his generation has made more of a public impact. We asked Olson to walk us through the history of his career—which in a lot of ways mirrors the history of the country.
Q: When was the moment that you knew you wanted to get involved in Proposition 8?
A: I was contacted by the people out in California who were very, very much concerned about what was going to happen with Proposition 8. There had been a challenge under California law, which everyone who had watched the argument had thought was going to fail. And there was a concern that someone needed to bring a challenge under federal constitutional law. My name was suggested and I received a call, someone out of the blue, asking me whether I would be interested in being involved in this case, and I really did not need to give it a great deal of thought. I thought that discrimination against individuals on the basis of their sexual orientation is a tragic harm done to our country and the citizens of our country and that I thought it was unfair and unreasonable and destructive for the state of California to put in its Constitution an act of discrimination against gay and lesbian people.
Q: Rob Reiner approached you?
A: Yes, Rob Reiner and his wife, Michele. The two of them are heroes and warriors. They felt a deep sense of injustice in California and they were at the very core at the very beginning of this. I flew out to California so I could meet with them and others working with them. Rob is quite quick to admit that the idea of Ted Olson representing this cause gave him pause because he was very close to Al Gore. He thought, “My God, Ted Olson, that’s a remarkable thing.” So I flew out to California and I met with the Reiners and Chad Griffin, who’s the head of our foundation, who’s running this project with several other people. And we had a really serious conversation about how it should be done, how much commitment we were going to make. I felt that I could not be involved unless we had the resources and commitment to do this in the right way, all of the way. So many of the cases that get to the Supreme Court are represented by people who really haven’t had the experience there, who haven’t had the exposure to the kinds of judgments you have to make, who haven’t put the thought into who the plaintiffs are going to be, what court to bring the case in, what kind of record to amass and that sort of thing. Sometimes cases come out in a less-than-the-best way because people haven’t done it properly.
Q: You’ve argued nearly 60 Supreme Court cases.
A: Yes, I’ve done 58.
Q: And your record is 75 percent?
A: Yes, something like that.
Q: You witnessed an incident that affected you deeply on the notion of discrimination. Could you tell us about it?
A: I grew up in public schools in California, near San Francisco, and I went to college and law school in California. It was amazing to me that California was a place where Proposition 8 could be passed because, in my judgment, people have always been tolerant of people of different religions or different races or different backgrounds, things like that. My parents schooled me and my brother and sisters in the idea that we do not discriminate against people, and it’s just simply intolerable to have that in our lives. I felt that in college, too, when I was a member of a fraternity that was the only fraternity on campus that did not discriminate against people because of their backgrounds.
I was on a college debate trip to Oklahoma or Kansas, some national debate tournament. We were walking through the city and were looking for a place to eat. We were turned away from several places because one of the guys on our team was black. And he was one of the most articulate, elegant, decent people that I had ever met in my life. I thought that this was just appalling and very depressing that he would be told that he couldn’t eat in a restaurant with other people. It was just not America and it was not the America that I understand. That was one incident in my life; I’m sure we’ve all had some incidents that like that where we’ve actually witnessed discrimination. He was remarkably poised about it; I think the rest of us were vastly more upset. He had obviously experienced other things like that in his life, and he may not have been too surprised. I think that and other instances in my life have reinforced for me the view that our neighbors are our neighbors and our citizens are our citizens and they are our friends and they are our brothers and sisters, and we have to fight for them.
Q: Can you tell us about some of the reaction you’ve received since taking the Proposition 8 case?
A: A young partner in our firm came up to me in our library, it was 7:30 or something like that, and I was working late and she was working late and we just happened to be passing through the library at the same time. She came up to me and she said, “Ted, you don’t know me very well because I work in the corporate/transaction field and our offices weren’t on the same floor.” She said, “I am a lesbian.” This was after we had announced the filing of the case out in California. She said, “My partner and I have three children and I can’t tell you what it means to me and our family that you are undertaking this fight, and you are fighting for us and you are working to change our lives. We can’t begin to thank you enough.“ She started crying and I did, too. We put our arms around one another. It personified for me once again the importance of striking out against acts of discrimination.
Someone sent me something about a young boy in Indiana or Tennessee who had committed suicide. He was 14 or 15 years old. He had been teased and bullied because he was gay. I learned early on in this battle that the suicide rate among young teenagers is enormously high for young gays and lesbians.
This is a very difficult issue. We have to root this out in our country. We have to learn to embrace and express affection for our fellow citizens who are gay or lesbian, not because they’ve chosen to do that: just like race, this is something that is a product of our birth. That gets me to the Loving v. Virginia case. I think it was 16 states that had made it a felony or illegal for people of mixed races to get married. Our president’s mother and father could not have been married in Virginia because they would have gone to jail; it would have been a felony in Virginia, at the time he was born. [Loving v. Virginia] was a unanimous Supreme Court decision that struck down those 16 laws. We’re hoping that the Supreme Court, when it takes this [Proposition 8] case, will recognize this form of discrimination in the same way, and that America four years later, as in the Loving v. Virginia case, will look back and say, “Well, how could we have ever done that?“
Q: Would you say this case, out of all of your cases, has had the most impact on you on an emotional level?
A: Absolutely. I would say it’s the most significant and most emotional of all the cases I’ve ever represented. This case, in essence, in reality, represents millions of people. If we can change the Constitution of the United States to recognize the decency and equality and dignity of gay and lesbian people, if we can change that for hundreds of thousands of people in California, we can change it for the people of America. And then we can have an impact on the rest of the world. There are people in certain countries in Africa where it’s a death penalty to be gay. Other parts of the world, in certain countries in the Middle East, you can be mutilated because of it. It is a terrible, terrible thing that exists in this world. If we can help to bring about a change in that, think of all the people whose lives will have been affected. David Boies and I feel equally strongly that this is one of the most important things—if not the most important thing—we’ve ever done in our lives. [At the time of publication, a federal appeals court is reviewing the decision that struck down Proposition 8 in 2010.]
Q: I’d like to learn about your working relationships with David Boies, being that you famously opposed him in Bush v. Gore.
A: David Boies is one of the most remarkable, skilled, talented lawyers that I’ve ever known. He’s a genius. He is exceedingly hardworking. He’s a marvel to watch in the courtroom. He’s been an absolute, unmitigated pleasure every step of the way. He’s a wonderful colleague and a very, very dear friend.
In Bush v. Gore, what I detected, what I observed, was David was an unbelievably effective advocate. His expression of his client’s position and point of view and legal arguments were so crystal clear and persuasive. I tell him now that he almost persuaded me, but not quite. But I admired the way that he represented his client and the way he explained to the American people his client’s position. The legal work that he and his team did was superb.
There’s a certain quality to David: he has a wonderful sense of humor and sense of perspective. But as talented and as successful as he is, he doesn’t take himself too seriously. He takes his work seriously, but he doesn’t put his ego in front of his humanity.
Q: Do you resist the temptation to rehash Bush v. Gore?
A: We’ve kidded about it a little bit. Of course he has a view that is different than mine. I respect his views and he respects mine, but we don’t spend a lot of time talking about it. As far as I’m concerned, when you get together with a good friend over a glass of wine and dinner, the last thing you want to do is argue about politics or law.
Q: You suffered such an enormous loss on 9/11 when your wife died on Flight 77. You were solicitor general at the time. How much did that event influence your thinking?
A: It was huge. Because I was solicitor general, and I was in the executive branch in the Justice Department, we had to work on legislation; we had to devise strategy with respect to dealing with the threat of terrorism. I think it was very, very important to me not to be motivated by the thought that we must get these people. As bad as that was and how horribly it affected me personally and how important it was for me to get back on my feet—and that was not an easy thing to do—to be in court two weeks later arguing in the Supreme Court, dealing with this threat while protecting our Constitution and our civil liberties—it was a balance that we had to be considerate of all the time. It’s impossible to quantify how something like that affects you. But it was very important to me not to be someone who was single-minded about how we go about dealing with people who are accused of threatening or destroying our lives. On the other hand, it was exceedingly important not to minimize the fact that we are vulnerable to individuals, a couple handful of individuals, who wanted to bring down the biggest buildings in the United States and the Pentagon and possibly they were after the Capitol itself. If a few people can do that, we have to be mindful that when we talk about civil liberties, the greatest civil liberty that we have in this country is the right to life and the right to get on an airplane and the right to send our children to school and the right to go to offices and our jobs in the morning. If we can’t protect that right, we can’t protect all the intermediate rights that are part of our lives. There’s a balance that we had to spend a lot of time thinking about and making sure that our feet were on the ground.
Q: Citizens United v. Federal Election Commission has been in the headlines a lot.
A: It has been and it’s enormously misunderstood.
Q: How so?
A: For one thing, there are a lot of people, including The New York Times and CNN for heaven’s sake, who say that corporations are the root of all evil and shouldn’t be protected by the Constitution. They don’t sit down to think that the First Amendment of all things has protected The New York Times in The New York Times [Co.] v. Sullivan, and the Pentagon Papers. If the First Amendment didn’t protect The New York Times, where would we be today? I’ve also hastened to ask how people [would] feel if the Internal Revenue Service showed up and took away their books, or the government decided to expropriate their nice, beautiful building on Fifth Avenue or wherever it happens to be? The corporations are collections of individuals. And the other thing about this wave of spending and money poured into the political process is [that] a huge amount of that is individual money. At the end of the day, the Supreme Court came to the conclusion that the American people get to weed out speech having to do with matters related to the election of their governance. And if the government itself starts taking sides as to what speech is too much, or whose speech should be limited, the losers are the American people. If you are worried about negative advertising or attack ads, go back and read the history of the 1800 election between John Adams and Thomas Jefferson, and the nastiness that came out of Alexander Hamilton and all those people. Yeah, we’ve had nasty elections in this country. We’re up to about 225 years of nasty elections. Look around the world and see how many countries can say something like that. None, of course. Speech is something that is at the root of our democracy and our freedom. It doesn’t produce the most perfect government, everyone’s willing to say that. But it produces a government that has protected us so far.
So there’s lots of things to be said about Citizens United, but I think those people who want to take rights away from corporations are going to be very disappointed when they find out that the corporation doesn’t have a Fifth Amendment right to protect its property or First Amendment right to publish its opinions.
Q: When did you decide you wanted to pursue law?
A: I never met a lawyer until I was a senior in college. My father was an engineer for United Airlines—he was responsible for keeping the airplanes flying. He was an intelligent, wonderful man and very much valued education, but law was the last thing in the world that he would have thought that his first-born son would be interested in.
For me, it was something about the intellectual challenge of looking at different points of view, trying to express arguments on both sides of the issue, to solve difficult problems. Early in high school—even though I was getting really good grades in math and my dad thought that was very spiffy—as important as that was, it just seemed to me that law was where I had to go in my life. By the time I was in college and on the debate team—I spent four years on the debate team—there was no question that this was what I wanted to do.
Q: And you’ve loved it ever since?
A: Absolutely. My first day of law school I thought, “My God, I’m finally here; this is so incredible.“ I’ve loved every minute of it.
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