The Defining Civil Rights Issue of This Century
David Boies, Ted Olson, and the federal constitutional right to same-sex marriage
Published in 2014 New York Metro Super Lawyers Magazine — October 2014 on March 20, 2015
Updated on January 28, 2021
Bush v. Gore may have divided the country but it brought together the two attorneys arguing it: David Boies of Boies, Schiller & Flexner, and Theodore B. Olson of Gibson, Dunn & Crutcher. In its aftermath, the two men became friends, sharing summer bike trips with their wives and an interest in wine. And in 2009, they famously teamed up in the Proposition 8 case, winning back the right for same-sex couples to marry in California.
Super Lawyers Magazine sat down with the two attorneys earlier this year for a wide-ranging discussion about marriage equality, law firm culture, what each looks for in a new hire and the future of the billable hour.
Q: What led you both to take the Proposition 8 case?
Theodore B. 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: 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.
David 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. And 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: The switch to marriage equality is rather startling, isn’t it? States are approving or refusing to defend something that they banned less than 10 years ago.
Boies: I don’t think either one of us has ever seen, in our lifetime, where an issue as contentious as this, as much of a wedge issue as this, has changed as rapidly. When we started the case, there were two or three states, [representing] less than 5 percent of the population of the United States, that permitted marriage equality. Now, more than half of all American citizens live in a state that permits marriage equality. When we started, a substantial majority of American citizens opposed marriage equality; today, less than five years later, a substantial majority of American citizens favor marriage equality.
Q: So why now? What caused the change?
Boies: I think the single most important factor is that, starting in the ‘60s and ‘70s, gay and lesbian couples and individuals began to come out and be honest about their sexuality and their sexual orientation.
When I grew up, I didn’t know anybody who I knew was gay. I’m certain that I knew a lot of people who were gay, but you didn’t know they were gay because the extent of discrimination and hostility caused people—just as a matter of protectiveness—to try to deny, at least openly, their sexual orientation. What that meant was the field was wide open to caricature. [But] as more and more people had the courage, and it really took courage in those days, to acknowledge their sexual orientation openly, everybody else began to know people—members of their family, teachers, students, doctors, lawyers, engineers—who were gay. They realized that the myths they had grown up with just weren’t true. I think that as a whole new generation of people grew up knowing, sometimes from a fairly early age, people of differing sexual orientations, it became harder and harder, and for most people impossible, to use that as a basis for discrimination.
We’re both good at what we do, in part because we’re good at figuring out the argument the other side’s going to make so we can rebut them. This is a case in which we can’t figure out what the good argument is on the other side. The other side doesn’t have an argument.
Q: When you argued Prop 8 before the U.S. Supreme Court, Justice Scalia asked you, “When did this become a federal constitutional right?” Is that still a legitimate question?
Olson: It’s a question. I said, “When did it become unconstitutional to prohibit people from different races of getting married? When did it become unconstitutional to make children go to different schools based upon their race?” Well, the Supreme Court decides cases when they get there, and when they understand the damage 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 marriage equality.
Olson: She is a person who has a cautious judicial 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.
Q: And Justice Scalia? Can you win him over?
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 an award that was being given by The Lab School in Washington, which is a school for children with dyslexia. He gave me that award, and I think it was an emotional event for the audience as well as for the two of us. We’ve just grown closer together.
Olson: We’ve never had a disagreement that got personal. 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.
Q: How many people are we talking about?
Boies: Probably 30 people from Gibson, Dunn & Crutcher. We had about 20 people.
Olson: Not to mention the paralegals and the messengers and the people that were assembling documents.
Boies: Lawyers are not known as people without egos. But there wasn’t any ego apparent in the entire case. Everybody worked together.
Q: How would you describe your different law firm cultures?
Boies: Gibson Dunn has clearly been around a lot longer than Boies, Schiller & Flexner, and it’s clearly a lot larger. I’ve often, within our firm, talked about Gibson, Dunn & Crutcher as the kind of firm that demonstrates that you can get very large and still be competitive, collegial, [with a] high standard of excellence. It doesn’t have to get diluted. I think one of the challenges, frankly, for Boies, Schiller & Flexner is whether we will have the discipline to maintain the quality, the collegiality, the dedication, that we have now as we grow.
Q: Where does that discipline come from? Is it leadership?
Boies: I think it has to come from leadership. I think it has to come from Boies, Schiller & Flexner, or some of the younger partners that are coming up. Or at Gibson Dunn, whether it’s Ted, or Randy Mastro or Bob Cooper. Bob is another lawyer I’ve been on the side of and against. Great integrity. Great trial skills.
Olson: He’s great on the golf course, too.
Q: Where do you see your firms in five years?
Boies: I think for five years, all we have to do is continue to do what we’re doing. The much harder task is what happens 20 years from now, or 30 years from now, when the entire leadership of the firm will have turned over. A firm that continues to attract the very best young people is a firm that’s going to succeed. Once you stop doing that, you begin to deteriorate, and that deterioration can accelerate as you go downhill.
Q: What advice would you have for a young man or woman looking to go to law school in this environment?
Boies: Even before they decide to go, I’d say, “Why are you going?” If you’re going to get a really good education that will teach you to think and solve problems, regardless of whether you practice law or not, that’s a good reason to go. If you’re interested in the justice system, that’s an even better reason to go. If you’re just trying to mark time, that’s a poor reason to go.
Olson: Don’t go to law school because you want to make lots of money. There are other ways to make lots of money. If you really get a bang out of practicing law and solving problems and trying to persuade and doing something very creative, and if you like the history and you like the law and you like the structure of our legal system, then you’re going to be spending your life doing things that you like. That’s the only reason to do it.
Q: Is that what you’re looking for when recent law school graduates try to get jobs at your firms?
Olson: Absolutely. You want people that really love to work, and want to work hard, and have manifested, through their achievement in college and law school, that they have the ability to think these problems through. It’s the enthusiasm. You can see it in their eyes.
Q: What do you think the future of law is with regard to the billable hour?
Olson: I like to do a fixed fee for whatever I can: a cert petition, an argument in the Supreme Court, handling an appeal. Then a client knows if it’s expensive, it’s expensive. Many, many clients, I’m finding, prefer it.
Boies: I think the billable hour is a problem. I think it creates a conflict of interest between the lawyer and the client. Lawyers actually do an extraordinary job of trying to avoid that conflict, [but] I think it’s always disadvantageous to have the economic incentives skewed. The client wants the case over as fast as possible. For the lawyer on an hourly rate, you want the case to continue from an economic standpoint. I think the less business a firm may have, the more that’s true. If I could give a client any advice, it would be pick a very busy law firm. Pick a law firm that has to fit you in, not a law firm that is out spending lots of marketing dollars to get you to hire them. Because I think that the busy law firm is a good law firm, but also it’s a law firm that is going to try to be efficient, because it needs to be efficient in order to service all of its clients. I would rather that we always were on a fixed fee or a contingency fee as opposed to an hourly rate. For the last three years, we have had more than 50 percent of our revenues come from fees other than hourly fees. That was our goal when we started. It took us almost 15 years to get there.
Q: Mr. Boies, last year in The New York Times you said you felt that a small percentage of the population was over-lawyered while most of us are under-lawyered. Could you expand on that?
Boies: I think that lawyers have, to a very large extent, priced themselves out of the market—not just for poor people but for middle class and upper middle class people. Sometimes even for medium-sized corporations, who really cannot afford to thoroughly litigate matters.
There are a combination of things that need to be done. First, courts need to control litigation in terms of limiting the number of depositions, the amount of discovery, the length of trials: things that explode the cost of litigation.
Q: How would you do that?
Boies: The most effective way is [having] a judge who exercises reason and discretion on a case-by-case basis. I think in the long run it will free up dockets, it will reduce costs, it will reduce the legal expenses.
I also think that we need to have ways of providing legal services to people who cannot afford them. It’s partly a function of what law firms should do: taking on cases and clients, and giving them the same representation as you would one of your commercial clients. [But] it’s also a function of what government can and should do: better funding from government that recognizes that legal services, like medical services, are something that people should not be entirely priced out of.
Olson: I think one of the biggest problems is government regulatory activities that make it so hard for people to start a business, to file a tax return, to run for office. We’re strangling in regulations.
Q: It almost sounds like you have different opinions here: get government more involved, get government less involved.
Olson: They’re complementary.
Boies: When I started Boies, Schiller & Flexner, I was astonished at the number of regulations that we violated in the first nine months that none of us knew about. There were so many different regulations, and the regulations varied by jurisdiction. We ended up with a lot of small offices in the beginning, because we basically opened an office wherever we had a lawyer we wanted. The result was that we had a series of sometimes nice and sometimes less-nice notices from various government agencies that we’d missed a filing deadline that we didn’t know existed.
Over time, we have solved that problem the way I suppose everybody solves that problem, which is by hiring experts who know [these regulations] and spend their days filling out these forms. But if you think how hard it was to start a new law practice, even with experienced people, now think about a person who wants to start a small business, who wants to open a restaurant, who wants to open a machine shop.
The problem is, so often in the press it’s posited as: Are you for government regulation or against government regulation? That’s not the issue. There are good government regulations and then there are bad, stifling government regulations. Every sensible person is both in favor of government regulation and against government regulation. It depends on the regulation.
Q: You both have children. What is the one thing you hope you’ve taught them?
Boies: I would say patience. Respect for others, respect for yourself.
Olson: I have two children and now three granddaughters. If I said one thing, it is that if you apply yourself and work hard, take education seriously, it gives you options. If you don’t do that, your choices are foreclosed for you. You want to take as many opportunities as you can in life to do what you want to do. You can open lots of doors by being a good student, learning when you have an opportunity for an education at the expense of your parents or your grandfather. Take that opportunity. For God’s sake, do it now. There’s lots of times to be on the playground or at dances; but for God’s sake, get an education so your freedom will be maximized.
Q: You’re both good debaters: Who do you lose arguments to?
Boies: [Points to Olson] I lose arguments with him.
I tried an antitrust case in Galveston, Texas. I had on my side Joe Jamail, who is a pretty fair lawyer. I thought I was a pretty fair lawyer. It took the jury about three and a half hours to come back against us. Sometimes you just don’t connect. Sometimes the other side just has a better case.
This interview was condensed and edited.