Civil and Human Rights

Lawyers Reflect on ‘Super Bowl of Supreme Court Arguments’

By Todd Ruger

 

Elizabeth Wydra spent the past two days watching attorneys argue about same-sex marriage. It was, the appellate advocate said, a “Super Bowl of Supreme Court arguments” featuring major stars including Paul Clement of Bancroft and deputy solicitor general Sri Srinivasan.

 

“Even though I wish Paul Clement played on my team more often, he’s still beautiful to watch,” said Wydra, chief counsel at the Constitutional Accountability Center, who helped draft an amicus brief against the Defense of Marriage Act and followed Wednesday’s arguments from the crowded court’s lawyer’s lounge.

 

With the high-profile case about the personal details of gays and lesbians this week, lawyers themselves became characters: details of their personal relationships, speeches on the courthouse steps and taking potshots about their life choices from a legislator.

 

It started on the courthouse steps on Tuesday, when David Boies of Boies, Schiller and Flexner opened a press conference by putting an arm around Ted Olson of Gibson Dunn, a frequent courtroom foe but his ally in the case against Proposition 8, California’s same-sex marriage ban, the focus of the first day’s arguments.

 

“Those of you who were in court today saw why I like it a lot better when this guy is on my side as opposed to against me,” Boies said.

 

“We come from different perspectives on the political spectrum so to speak, but our coming together is intended to make the point to America that this is not a democratic issue, or republican issue, or conservative or liberal, this is an issue of American constitutional rights,” Olson said.

 

Inside the Capitol on Wednesday, House Minority Leader Nancy Pelosi (D-Calif.) predicted the Defense of Marriage Act would be found unconstitutional, and reminded the press corps that she had correctly predicted the Court’s decision in the Affordable Care Act case.

 

She gave this characterization of Clement, the former solicitor general hired by House Republicans to defend DOMA for as much as $3 million in taxpayer money: “The spokesperson for DOMA—what a stale role to play in life.”

 

During a rally in front of the Supreme Court building on Wednesday, Supreme Court bar member Barry Lynn used his own family to make a point to a crowd of same-sex marriage supporters. Lynn, executive director of Americans United for Separation of Church and State, has two cases he hopes the Supreme Court will hear soon.

 

“I have been married to my wife Joanne for the past 42 years. We have two children – one girl, one boy. We have just what one anti-equality speaker on the radio yesterday said was the dream American family,” Lynn said.

 

“But yesterday, right here, I was in tears…because I was listening to families whose dreams cannot be fulfilled. They can’t be fulfilled for them because of the very law that’s being debated in those walls behind us today,” Lynn said.

 

Also on Wednesday, news reporters seemed to agree that a comment by Justice Ruth Bader Ginsberg was one of the emotional high points of the arguments. She characterized states as offering “two kinds of marriage: real marriage and then this sort of skim milk marriage.”

 

Afterward, Roberta Kaplan, a partner at Paul,Weiss, Rifkind, Wharton & Garrison who represented the plaintiff, described her reaction to Ginsberg’s comment in this way: “I think the Court can’t help but be affected by the way that this statute writes gay people and gay married couples out of the federal code,” Kaplan said.

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