confidence.Smith, who had recently been asked to join the board of Lambda Legal, had to promise not to share what Olson was about to say with anyone in the movement.
Before filing the
Lawrence
case, Smith had analyzed what he thought waspossible at the Supreme Court. Both Justice Kennedy and then-justice Sandra Day O’Connor had voted the right way in the
Romer
case. That gave him the courage to go forward.
But he hadn’t argued that gays and lesbians ought to be considered a “suspect” or “quasi-suspect” class deserving of heightened scrutiny, as Olson was doing. It was, Smith had felt, too big an ask. The Supreme Court was clearly reluctant to create new suspect classes—it had last done so in the 1970s. And, perhaps more important, the justices liked to move incrementally. If heightened scrutiny applied, not only would the sodomy laws at issue in
Lawrence
likely fail to meet constitutional muster, but so too would policies such as Don’t Ask, Don’t Tell, banning gays and lesbians from openly serving in the military.
In the end the Court had wound up striking down sodomy laws in
Lawrence
without reaching the question of what standard of scrutiny should be applied to gays and lesbians. In the wake of that victory, Smith had entertained the idea of bringing a federal challenge to same-sex marriage bans. But, he told Olson, he ultimately decided against it after talking to a number of former Supreme Court clerks. There was a big difference in Kennedy’s mind, they had told him, between telling a state it had no right to criminalize private sexual relationships and telling all fifty that there was no rational reason to refuse to legally sanction those relationships.
Olson disagreed, telling Smith he believed he could get Kennedy’s vote. But the time to act was now, while Justice Stevens was still on the Court. Stevens, the leading member of the Court’s liberal wing, was known to stop by Kennedy’s chamber and chew over cases, a judicial courtship that Olson believed had given him a fair amount of influence with the Court’s most unpredictable swing voter.
“We’ve got the right district in the right circuit with the right opponents at the right time,” Olson would later say. “You gotta be willing to take chances. You can’t be afraid to swing for the fences.”
Smith hoped Olson was right. But he wasn’t sure enough to sign on. It’s just too risky, he told Olson, wishing him luck.
Another potential co-counsel whom Olson considered was Kathleen Sullivan, a constitutional law professor and litigator named by the
National Law Journal
as one of the most influential lawyers in the nation. She was a lesbian,and she had served as co-counsel on the losing side of the first, unsuccessful challenge to laws criminalizing sodomy,
Bowers v. Hardwick
.
Bringing her on board could help with the gay community in the short term, but Olson had to consider the long game. Justice David Souter was planning to retire at the end of the Court’s term, and Sullivan was thought to be on President Obama’s short list to replace him. If she joined the team and then was nominated and confirmed, she would have to recuse herself in the event the case reached the Supreme Court, which would make the odds of winning much steeper. So after an initial outreach, Olson reluctantly concluded he had to resume his search.
By May, he too was running out of time. Kristina and Chad had the plaintiffs, but he had yet to find co-counsel.
It was then that he hit on the idea to call Boies. In addition to representing Gore in the recount, Boies had successfully taken on goliaths such as Microsoft, was the go-to legal shark for some of Wall Street’s most powerful players, and had represented everyone from Yankees owner George Steinbrenner to radio talk show host Don Imus.
Since the deadlocked election, the two men had formed a surprising friendship. As Boies put it, in all-consuming cases like that one, “there are only a few people
Before filing the
Lawrence
case, Smith had analyzed what he thought waspossible at the Supreme Court. Both Justice Kennedy and then-justice Sandra Day O’Connor had voted the right way in the
Romer
case. That gave him the courage to go forward.
But he hadn’t argued that gays and lesbians ought to be considered a “suspect” or “quasi-suspect” class deserving of heightened scrutiny, as Olson was doing. It was, Smith had felt, too big an ask. The Supreme Court was clearly reluctant to create new suspect classes—it had last done so in the 1970s. And, perhaps more important, the justices liked to move incrementally. If heightened scrutiny applied, not only would the sodomy laws at issue in
Lawrence
likely fail to meet constitutional muster, but so too would policies such as Don’t Ask, Don’t Tell, banning gays and lesbians from openly serving in the military.
In the end the Court had wound up striking down sodomy laws in
Lawrence
without reaching the question of what standard of scrutiny should be applied to gays and lesbians. In the wake of that victory, Smith had entertained the idea of bringing a federal challenge to same-sex marriage bans. But, he told Olson, he ultimately decided against it after talking to a number of former Supreme Court clerks. There was a big difference in Kennedy’s mind, they had told him, between telling a state it had no right to criminalize private sexual relationships and telling all fifty that there was no rational reason to refuse to legally sanction those relationships.
Olson disagreed, telling Smith he believed he could get Kennedy’s vote. But the time to act was now, while Justice Stevens was still on the Court. Stevens, the leading member of the Court’s liberal wing, was known to stop by Kennedy’s chamber and chew over cases, a judicial courtship that Olson believed had given him a fair amount of influence with the Court’s most unpredictable swing voter.
“We’ve got the right district in the right circuit with the right opponents at the right time,” Olson would later say. “You gotta be willing to take chances. You can’t be afraid to swing for the fences.”
Smith hoped Olson was right. But he wasn’t sure enough to sign on. It’s just too risky, he told Olson, wishing him luck.
Another potential co-counsel whom Olson considered was Kathleen Sullivan, a constitutional law professor and litigator named by the
National Law Journal
as one of the most influential lawyers in the nation. She was a lesbian,and she had served as co-counsel on the losing side of the first, unsuccessful challenge to laws criminalizing sodomy,
Bowers v. Hardwick
.
Bringing her on board could help with the gay community in the short term, but Olson had to consider the long game. Justice David Souter was planning to retire at the end of the Court’s term, and Sullivan was thought to be on President Obama’s short list to replace him. If she joined the team and then was nominated and confirmed, she would have to recuse herself in the event the case reached the Supreme Court, which would make the odds of winning much steeper. So after an initial outreach, Olson reluctantly concluded he had to resume his search.
By May, he too was running out of time. Kristina and Chad had the plaintiffs, but he had yet to find co-counsel.
It was then that he hit on the idea to call Boies. In addition to representing Gore in the recount, Boies had successfully taken on goliaths such as Microsoft, was the go-to legal shark for some of Wall Street’s most powerful players, and had represented everyone from Yankees owner George Steinbrenner to radio talk show host Don Imus.
Since the deadlocked election, the two men had formed a surprising friendship. As Boies put it, in all-consuming cases like that one, “there are only a few people
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