More on the Same-Sex Marriage Cases
Ted Olson stands at the center of the debate over same-sex marriage. When the noted Republican lawyer, who served as George W. Bush’s solicitor general, announced that he was fighting California's Proposition 8—a 2008 ballot initiative that banned same-sex marriage in the most populous state—many observers did a double take. But no one doubted that Olson would be a formidable attorney. He won 20 of the 23 cases he argued before the Supreme Court as solicitor general, and he won Bush v. Gore against David Boies, who is now his partner in the case overturning Proposition 8.
I have some insight into Olson—not a lot, but some which may be interesting for those watching the Court this week.
It’s a pretty well known story, but for those who missed it, in 2005, I was working for Time magazine and fighting a subpoena from the special prosecutor in a CIA leak investigation. I had coauthored a piece in 2003 which noted that administration officials were going after Joe Wilson, the husband of CIA operative Valerie Plame. (Wilson had written an important piece claiming that, at the behest of the CIA and Vice President Dick Cheney, he had visited the African country of Niger and found no evidence in support of a British intelligence report that Saddam Hussein was seeking a kind of fissile material known as yellowcake.)
Throughout 2004 and 2005, Time Inc. and I had lost every legal effort to have the subpoena quashed. (The company was the owner of my notes and so was under subpoena as well.)
Olson and his firm, Gibson, Dunn & Crutcher, represented me and Time Inc. as we appealed my contempt order before the Supreme Court. Until that point, another firm had represented us valiantly, but we’d lost and lost decisively at an inflection point in the case. When my case went before the D.C. Circuit Court of Appeals, the second-highest court in the land, and the judges were evincing no support for our argument, I wrote down, “Je suis fucked.”
I was facing jail if I didn’t comply with the subpoena and, unfortunately, the law was not on my side. While virtually all states had a “shield law” that offered some degree of protection for journalists trying to protect their sources, there was no federal statute offering that kind of coverage and I, unfortunately, was in federal court. Making matters worse, the only case that dealt with whether reporters had a right to protect their sources was a case from the '70s called Branzburg v. Hayes, in which the Supreme Court ruled that a Kentucky reporter who had written about drug dealing had to comply with the subpoena of a local prosecutor who had an understandable desire to lock up said sources.
In a 5-4 decision, the Court said the reporter had to cough up his sources. But the pivotal opinion was somewhat ambiguous and for a generation, First Amendment lawyers did their best to argue that Branzburg actually gave reporters a limited immunity from subpoenas like mine. The courts that heard my case, though, weren’t buying it.
So, as my case sped toward the Supreme Court, Norman Pearlstine, then the editor in chief of Time Inc. and now the chief content officer of Bloomberg L.P., reached out to Olson at the behest of Paul Cappuccio, the general counsel of Time Warner who had worked his way up through the conservative legal firmament. My meetings with Olson were pretty limited. I mostly worked through two of his better-known associates, Theodore Boutrous Jr., a prominent Los Angeles-based attorney who had handled many First Amendment cases, and Miguel Estrada, whose nomination to the federal bench was blocked by Democrats in 2003.
First, while most folks were surprised by his support of gay marriage, I wasn’t. Yes, he was a conservative. But he had also defended the press as the longtime lawyer for the Los Angeles Times and in other First Amendment cases. He’d agreed to represent Tim Phelps, a Newsday reporter, in the Anita Hill case even if Phelps's work was damaging to the conservative Clarence Thomas. He was conservative, but not reflexively so.
Second, he was realistic about our chances, but he also displayed a certain bravado and confidence. When he met with Pearlstine, he listed the nine justices and noted what arguments could be used to reach each of them—in my case, at least the four we’d need to hear the case.
Third, in my own case he rejiggered the legal argument. Instead of relying as heavily on Branzburg, he put a renewed emphasis on other cases, for instance, a Supreme Court ruling that extended privilege and confidentiality to social workers. He pointed to rules of evidence in which the Court seemed to say that if a privilege was widely adopted among the states, then it had a federal component, too. He was saying to the Court, in essence, you and Congress have already extended these privileges, so you’re not really creating a new right. The brief that he had his team put together read convincingly. Pearlstine outlines what Olson brought more thoroughly here.
The Supreme Court voted unanimously against hearing my case. I wasn’t comfortable with that, and I told Olson as much. But my respect for him couldn’t be higher. Even though we lost, I’m a satisfied Gibson, Dunn customer.