Forcing the Spring: Inside the Fight for Marriage Equality (44 page)

Hopefully the Supreme Court would just take the case, she said. Not only would that get them all to where they wanted to go, but, she joked, “It will give me more time to drop a few pounds before the wedding.”

Cooper’s cert petition and Olson’s response had been filed months earlier. Cooper, in asking the justices to overturn Judge Reinhardt’s decision, had cited a 1982 Supreme Court precedent called
Crawford v. Los Angeles Board of Education
. In that case, which involved a busing desegregation plan, the justices held that just because a state chooses to do “more than” the Constitution requires, does not mean it may never recede. Reinhardt’s decision to skirt the question of whether the U.S. Constitution contained a right to marry allowed Cooper to argue that Californians could withdraw from gays and lesbians the ability to marry, so long as they had some legitimate reason for doing so.

Olson disputed that he was asking the Court for more than the Constitution required. Cooper’s argument that California’s generous domestic partnership law meant that the state’s “gay-friendly” voters could not have acted out of animus had been dismissed in a biting footnote: “There is no ‘Mostly Equal Protection Clause’ or ‘Separate but Equal Protection Clause.’”

But Olson had tried to walk a fine line, opposing Cooper’s request for
Supreme Court review, but not too strenuously. The case did offer an “attractive vehicle” for the justices to consider the issue, he allowed, coming before the Court with the “most comprehensive record ever developed in a case challenging a restriction on the right to marry.”

Whenever Olson had an argument before the Supreme Court, he asked a single lawyer on his team to put together a binder on each of the nine justices, with everything from relevant case decisions to items about their personal lives that might make them more or less sympathetic to a particular line of argument. This time, he planned to assign the task to nine lawyers, one for each justice. Already delivered was a twenty-one-page list of every clerk who had ever worked for any of them.

Olson told Boies that he thought the odds were good that the Court would take the case. But he had been at this game long enough to know better than to bet on it, or to waste a lot of time speculating. As he put it, “I don’t open the oven door too much to see how the bread is baking. They’ll tell us what they want, when they are ready.”

“
I don’t have the faintest idea what they are going to do,” he said, sitting in his office one day. “Do the liberals want to take the case? Do they think they are going to win? I don’t know. Do the conservatives? It all could depend on things we can’t control. How much vote counting are they doing in their own heads, subliminally or not, or are they just looking at it on the merits?”

It could all come down to how the other justices read Kennedy, or the “sphinx of Sacramento,” as the California-born, Reagan-appointed justice was sometimes called. It might be known as the Roberts Court, but Kennedy was still the must-get vote in controversial cases.

He was a man of many contradictions. He was formal in dress and speech, wearing pocket squares and addressing one audience as “my fellow citizens,” and inhabiting gilded red-and-gold chambers that could have been decorated by Versace. He was a voracious reader, fiction generally, and loved to talk about the books he was reading. One former clerk recalled a lengthy discussion about Russian novelist Fyodor Dostoyevsky and the nature of the human soul. But unlike Justices Ginsburg and Scalia, who regularly attended the opera together, he was not a fixture in highfalutin Washington circles, preferring to cook out over his Weber grill with his wife and family.

Entire treatises have been written about Kennedy’s jurisprudence. Chief
Justice Roberts liked to see himself as a pragmatic umpire, calling constitutional “balls and strikes,” Scalia and Thomas as judicial mediums, channeling original intent. But Kennedy, according to former clerks, was less mechanical, more empathetic.

He had a “romantic and optimistic view of the Court,” said one, viewing it as a “shining light on a hill, a place where enlightened judges help to shape a civil society,” said another. While generally conservative, he had no trouble breaking with his conservative brethren when it suited him. He was less concerned than some of the other justices with what he called the “temper of the times.”

“You have to remember that we live in a constitutional democracy, not a democracy where the voice of the people each week, each year, has complete effect,” he said in an interview on PBS’s
Frontline
. “There are certain enduring human rights that must be protected.”

He looked not just to the law, but at what was “right and wrong, fair and just,” said a third former clerk, using a prism that took into account evolving societal mores. Justice Scalia searched the Constitution’s text before reaching a decision; Kennedy had spoken of also searching his conscience. “
We must never lose sight of the fact that the law has a moral foundation,” he once said, “and we must never fail to ask ourselves not only what the law is, but what the law should be.”

When brooding over a ruling, Kennedy tried to put himself in the shoes of the people who would be impacted, as he did in a 1991 case called
Edmonson v. Leesville
Concrete Company
that struck down race-based jury selection in civil trials. Thaddeus Donald Edmonson, an African American construction worker, had sued the company for injuries he suffered while on the job. The company had used preemptory challenges to dismiss two black jurors from the jury without asking any questions that would determine whether they could serve impartially. The case pitted two private parties against one another, but it was the request of Edmonson’s lawyer to consider the feelings of the jurors that most swayed Kennedy.

“
It was a very beautiful statement, to the effect that, ‘may it please the Court this case is not just about my client . . . it’s about two jurors who are not in this court room and not a party to this suit,” Kennedy later recounted in an
interview recorded for a Web site called LawProse.org. “Those jurors, when they went into a United States District courthouse that day knew, or thought, that the right of service on a jury was as important as the right to vote, and for them, service on a jury was especially important because their fathers and their grandmothers and their mothers and their grandfathers could not have served.”

He was known to dramatically switch his vote, as he did in a 1992 abortion case. Privately, he was critical of the Court’s reasoning in the
Roe v. Wade
decision, which predated his tenure, viewing it as “an institutional disaster,” according to one former clerk. But he infuriated the Right by upholding the right to abortion in a case called
Casey v. Planned Parenthood,
in a ruling that referenced the Court’s hesitancy to overturn prior decisions: “Liberty finds no refuge in a jurisprudence of doubt.”

Years later, when the late justice Harry Blackmun’s papers were released, it would become clear that Kennedy had abandoned what would have been a conservative majority to overturn
Roe
at the last minute. But he hinted at it at the time when, looking out at the protesters gathered outside the Court just before the decision was announced, he suggested to a reporter that he had reached a point of no return. “
Sometimes you don’t know if you’re Caesar about to cross the Rubicon, or Captain Queeg cutting your own tow line.”

He might say one thing on the bench, or at conference when the justices took their preliminary vote, but his opinions sometimes came out altogether differently. He had a habit of breaking out an easel and jotting down potential rationales. “Let’s talk about this, what’s your view?” he would ask his own clerks, and sometimes, especially if he was trying to bring a colleague around to his side, clerks from other justices’ chambers as well. It helped him to think aloud, and his opinions often became more expansive as he talked them through. As one former clerk put it, “When he swings, he swings hard.” He spoke often about the arc of history, and he viewed the Court’s role as a force for good, “confirming the movement of society toward a place of more perfect union, equality and liberty,” according to a fourth clerk.

He saw the promise of the Constitution’s due process clause, that no person may be deprived of “life, liberty, or property, without due process of law,” as transcendent, the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” as the
Casey
opinion put it.

In blazing the Court’s path on gay rights in the
Romer
and
Lawrence
cases, Kennedy had elevated the concept of human dignity into constitutional principle. According to one former clerk who remained close to him, his views on sexual orientation were unambiguous. “He thinks that you are born that way, and that it has no relevance to your capacity to be a productive member of society.”

He was offended by what he viewed as petty meanness. A state may not, as he wrote in the
Romer
case, single out a class of citizens and make them a “stranger to its laws.” But Kennedy was also a staunch federalist, who viewed the states’ power to regulate certain aspects of public life as a necessary check against tyranny. And those familiar with his thinking said that his
Lawrence
opinion, striking down antisodomy laws, was driven less by the law’s discriminatory impact and more by a libertarian antipathy toward government intrusion into constitutionally protected, private sexual conduct that in his view hurt no one.

Early on, Olson had asked Paul Cappuccio, the general counsel of Time Warner Inc. and a friend who had clerked for both Scalia and Kennedy, for his view on how Kennedy would come down. With public opinion shifting as rapidly as it was, Olson had tried to frame the Proposition 8 case so as to present the justices with the starkest of choices:

Did this Court want to be viewed by history as the
Plessy v. Ferguson
of its day, condemning another generation of gays and lesbians to separate but unequal marriage status, just as that 1896 decision upholding segregation condemned African Americans to second-class citizenship for another half century? Or did it want to be viewed as a modern-day
Brown v. Board of Education,
sweeping away the last vestige of government-sponsored discrimination?

Cappuccio’s best guess at the time was that Kennedy would care about being on the right side of history, and that his expansive views on liberty and equality would trump any federalist reluctance to stick it to the states that wanted to keep the status quo. But that was before the convergence of the DOMA cases and Prop 8.

That changed the calculus, he told Olson and Ted Boutrous. Kennedy also liked to view himself as measured, he said, and Olson was asking for an
aggressive read of the Constitution. If both cases were heard in the same term, Kennedy might decide to split the baby. He could strike down the DOMA provision denying same-sex couples federal benefits on the grounds that the federal government had no legitimate interest in denying recognition to marriages that had been blessed by the states, burnishing his legacy as the Court’s chief advocate for gays and lesbians and nudging the country in the direction of equality, but uphold Proposition 8 on federalism grounds by finding that the definition of marriage was the realm of the states.

Be careful what you wish for, Cappuccio warned.

“
The only person who should want this case to go up is Chuck Cooper,” he said.

Finally, at 3:13
P.M.
eastern time, SCOTUSblog lit up. The justices had emerged from their December 7 conference.

“We have the orders now. Prop 8 is granted. So is
Windsor
. Those are the only two marriage cases granted.”

In a conference room at Robbie Kaplan’s firm in New York, everyone started jumping up and down and screaming. At AFER’s office in Los Angeles, Chad, Adam, and the rest of the crew did the same. Enrique Monagas was in his office at Gibson Dunn, unable to get anything done, when the news flashed across his screen.

“
Yes!” he thought.