The Supreme Court Bar Poaching Cases – Same-Sex Marriage Edition

February 12th, 2014

The Supreme Court only grants cert on about 85 cases a year, so each grant is fought over vigorously by members of the Supreme Court Bar. Often, clients host a “Beauty Contest” where firms pitch their services. But sometimes, the lawyers go to the client to get the case. Joan Biskupic wrote a great piece about how members of the elite Supreme Court bar pounced on a pro-se litigant in Guam who had his cert petition granted.

In the next wave of litigation over same-sex marriage, we are seeing glimpses of the struggle. The Times had a profile of how Ted Olson and David Boies, who litigated the Prop 8 to the Supreme Court, are trying to poach the SSM cases from Utah and Oklahoma. The lawyers for that case have said, “Thanks, but no thanks.”

Mr. Olson, a towering figure in the conservative legal movement, and Mr. Boies, a celebrated trial lawyer who argued against Mr. Olson in Bush v. Gore, say they would like to take on a pair of appeals looking to overturn laws in Utah and Oklahoma that prohibit gay and lesbian couples from marrying.

But they have not exactly been met with open arms by the teams of lawyers already involved, whose response so far has been a cool “Thanks, but no thanks.”

The push by the two lawyers to involve themselves underscores how suddenly and unexpectedly these cases have become the focus of both gay rights advocates and those who want to see the Supreme Court halt the wave of recent decisions that have undercut state bans on same-sex marriage.

But their interest also raises questions of experience, ego and turf that are inevitable when the legal stakes involve the potential to reshape the nation’s jurisprudence on such an emotionally and politically charged civil rights issue.

Olson insists that he is best-suited to take this case:

Mr. Olson, in an interview on Monday at his office — where the walls and bookshelves are lined with memorabilia from his 60 appearances before the Supreme Court — cited the expertise that he and Mr. Boies have accumulated through years of preparing the case to overturn California’sProposition 8. As Mr. Olson spoke, he was preparing to argue a separate case in a lower court in Norfolk, Va., on Tuesday that challenges the state’s ban on same-sex marriage.

“The reason we were brought in,” he said, “was the people in California who first contacted us were very concerned that lawyers would bring a challenge to Prop 8 that didn’t know how to take a case all the way to the Supreme Court — how to prepare it, how to build a foundation, how to present it, how to articulate the arguments.”

“It is impossible,” he added, “to overstate how important it is, and how meticulously handled it must be in order to ensure the best outcome.”

The lawyers from Oklahoma and Utah are not impressed:

So far the lawyers arguing the Oklahoma case have not brought on any counsel from out of state. The lead lawyer, Don G. Holladay, said Monday that the offers of assistance came pouring in almost immediately. “We are fairly lean and trim,” he said, adding, “We think we know the case as good as somebody could know it.” He said that he had not heard directly from Mr. Olson or Mr. Boies, but instead through a foundation they work with, the American Foundation for Equal Rights, which is also handling the Virginia case.

The plaintiffs in the Utah case have brought on lawyers from the National Center for Lesbian Rights. But that is all the outside help they plan to accept for now.

Michael Klarman basically told the lawyers to get out of the way, and let the big guns come in.

Some legal experts said the only drawback to their involvement would be a few hurt feelings. “From the perspective of the lawyer who had the case all along, it might ruin their chance of having their moment in the sun,” said Michael J. Klarman, a law professor at Harvard. “But from everybody else’s perspective, it’s probably a good thing.”

Mr. Olson said he can empathize with a lawyer’s pride of ownership. “It would be human nature to feel that way,” he said.

Relatedly, Roberta Kaplan, who represented Edie Windsor in United States v. Windsor, tried to intervene in the Utah case. She was denied.

Elsewhere, I am working on a project that chronicles the various means by which members of the Supreme Court bar pitch clients–both at the cert stage, and the merits stage–to try to take over the case. I’ve already collected the contact information for counsel of record at the court of last resort before the Supreme Court for every granted case between 2009 and 2013. I’m working on a survey to send to all of them to learn more about their experiences. More on this over the summer.