The past 36 hours have been a total whirlwind for Ted Olson. After receiving word that the 9th Circuit Court of Appeals would issue its ruling Tuesday morning in the Prop 8 case, Olson—one of the lead lawyers in the fight to get the 9th Circuit to deem California’s same-sex marriage ban unconstitutional—flew from Washington to San Francisco Monday night. He was at the court Tuesday at 10 AM when the decision was issued: a victory for Olson and co-counsel David Boies, along with the same-sex couples they represent. From that point on, Olson’s day was dominated by demands from the press, including an appearance on MSNBC’s The Rachel Maddow Show last night. He then boarded a plane at 11 PM and landed back in Washington this morning. After a quick stop at home for a shower and a change of clothes, he headed back to his Farragut North office at Gibson, Dunn & Crutcher.
“My job today is to keep my eyes open,” he says.
Olson, one of the country’s best Supreme Court lawyers and former solicitor general during the George W. Bush administration, has never been shy about the fact that he hoped to eventually argue the Prop 8 case at his favorite venue—the US Supreme Court. But the narrowly tailored wording of the California appellate court decision has left many court watchers speculating that the justices will not take up the case as most had expected. The 9th Circuit worded its opinion to apply specifically to the circumstances in California, where same-sex marriage was first legalized and then stricken down again by a voter-approved ban. Because the ruling is not applicable to the entire country, the Supreme Court may be less likely to take the case.
Olson, however, remains hopeful. He says there are several ways in which the California decision could apply on a national scale. He points to Washington state, where the legislature is poised to legalize same-sex marriage. If that happens, there have been threats in that state to put the matter on a ballot for voters to decide—just like what happened in California. The same scenario could play out in other states, too. Olson also emphasizes that the 9th Circuit’s decision struck down a provision in the California state constitution, and whenever a federal court overturns a provision in a state constitution, the case becomes appealing to the Supreme Court. Still, he says, “You never know about the Supreme Court—when they will take a case, when they won’t take a case.”
One thing is certain: Olson is thrilled with the ruling. “We set out to overturn Prop 8. We now have a very strong district court decision and circuit court decision overturning it.” And he’s not surprised that the judges handed down a narrow opinion. “Any good lawyer will tell you, you try to give the courts alternatives, and you particularly try to give them the least far-reaching alternative because you want to make it easy for a judge to decide in your favor. To the extent that they exercised some restraint, that was fine. That was one of the arguments we made.”
The frontrunners for the Republican presidential nomination predictably decried the 9th Circuit’s decision to legalize same-sex marriage in California. That seemingly puts Olson, a GOP stalwart who usually gives generously to Republican candidates, in an awkward spot. From the time he took on the Prop 8 case with Boies, a Democrat, Olson has said the issue is not a partisan one, but rather a question of American justice. Asked whether he will now refrain from financially supporting any of the Republican presidential hopefuls, Olson doesn’t have a clear answer. “I’m not crossing that bridge yet. We’ll see what happens over the course of the next few months,” he says. “So far, no one’s asked me [for support], so it’s easy to just sit here and do my work and represent my clients.”