Posted by Orin Kerr:
Ted Olson, Law vs. Policy, and the Role of Courts vs. Counsel:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250691881
Like[1] my co-blogger Dale, I was very interested in today's [2]New
York Times article on Olson's decision to argue in favor of a
constitutional right to same-sex marriage. Unfortunately, I'm not sure
the article accurately identifies the tension that makes Olson's
decision so interesting. The Times mostly spins the story as
"prominent conservative takes liberal view and thereby annoys
conservatives." That's a part of the story. But I think there is a lot
more going on.
As I see it, the fact that a prominent conservative lawyer like Ted
Olson is personally in favor of same-sex marriage isn't particularly
newsworthy. I haven't done any formal study on this, but my rough
sense is that opinion on that policy question is somewhat divided
among Federalist Society types, especially among younger members.
Social conservatives tend to be "against," while more libertarian
members are often "for."
What makes Olson's involvement in the same-sex marriage litigation
so interesting -- and among right-of-center lawyers, controversial --
is that his position is relying on the kinds of constitutional
arguments that Olson is personally so closely identified with
rejecting. Those who have watched Olson's annual [3]Supreme Court
Roundups for the Federalist Society know how harsh Olson tends to be
about judges who Olson thinks are constitutionalizing their policy
views, especially when that means constitutionalizing social policies
popular among elites. Olson hasn't just been critical of those who
take a broad view of constitutional meaning in this setting: he has
been dismissive and sometimes even brutal.
The surprising aspect of the new case is that it has Olson making
same kinds of constitutional arguments that he has specialized in
ridiculing for so long. It's the juxtaposition that is surprising. Of
course, different people will disagree on which Ted Olson is right.
Some will say he was wrong before and right now; others will he was
right then and wrong now. But however you look at it, it seems hard to
reconcile the two.
I personally don't see anything wrong with that. Olson is a lawyer,
and he's not under an obligation to maintain consistency between what
he says when he speaks for himself and what he says when he speaks for
a client. Most attorneys who are also public figures at some point
make legal arguments that they themselves would reject if they were
judges. This is plainly true with Olson: As Solicitor General in
2003,[4] Olson defended campaign finance laws; this Term, as counsel
for a private client, he is [5]attacking the very same laws he
defended six years ago. Clearly in at least one of those cases he is
making an argument that he finds unpersuasive. So from the standpoint
of Olson as a lawyer, there's nothing so surprising here. Still, from
the standpoint of Olson as a public figure, it's a surprising move.
References
1. http://volokh.com/posts/1250692393.shtml
2. http://www.nytimes.com/2009/08/19/us/19olson.html?_r=1&hp
3.
http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=182634-1
4. http://www.oyez.org/cases/2000-2009/2003/2003_02_1674/argument-2
5. http://www.law.com/jsp/article.jsp?id=1202432533355
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