As these articles in the New Yorker and California Lawyer discuss, the decision by Ted Olson and David Boies and their Hollywood backers to file a lawsuit challenging Proposition 8 as a violation of the federal Constitution was highly controversial among many advocates of same-sex marriage. Acceptance of, or at least acquiescence to, that decision appears to have come as a result of deference to the reputed strategic savvy of superlitigators Olson and Boies. But the Supreme Court’s order barring broadcast of the anti-Proposition 8 trial calls into question that supposed savvy.
As law professor Dale Carpenter, an advocate of same-sex marriage, puts it in a Volokh Conspiracy post, yesterday’s Supreme Court ruling is a “potentially ominous development for pro-SSM litigants”:
As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial.… As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.
All in all, it’s a bad start for the judicial challenge to Prop 8.
I don’t mean to read too much into this early development, but it’s curious that the “dream team” of lawyers for plaintiffs paved the way for it happen. For example: Where was their strategic thinking when Walker surprised them early on by pressing for an expansive trial of factual issues and associated discovery? When Walker revealed his plans to broadcast the trial, did they just get piggy and somehow fail to anticipate the need for Walker to take the proper procedural steps? And why, oh why, did they respond to obviously legitimate concerns about harassment and intimidation of pro-Prop 8 witnesses by taking the position (see point 4 here) that those witnesses deserve whatever comes their way?
As Carpenter signals, the fact that Justice Kennedy joined, and probably wrote, the Court’s per curiam opinion may also raise real doubts about the soundness of what the New Yorker article calls Olson’s “self-assurance” in his reading of the Court. I’m certainly not going to predict that Olson won’t in the end achieve the Supreme Court victory that he’s been confidently promising. But he certainly didn’t tee up the broadcast issue well for his clients. And I’m also willing to bet that he wildly misread the prospect that the Court would rule as it did.
As the New Yorker article puts it, Olson sees the anti-Prop 8 case “as a way to make history.” The fears of other advocates for same-sex marriage that (in the words of one law professor quoted in the article) “there’s more ego than analysis” in his decision to pursue the case are surely more intense than ever.