When Theodore Boutrous Jr. hopped on the phone the other day from Washington, he was giddy.
“We just got a unanimous ruling at the Supreme Court!” he said.
He was referring to the 9-0 decision on behalf of his client, an insurance company fighting a class-action case.
I asked Boutrous, who goes by “Ted,” how many times he has argued in front of the Supreme Court.
“Twice,” he said. “And I’ve got 18 votes!”
When I suggested he should retire while he has a perfect record — 18 votes mean all the justices ruled in his favor both times he appeared before them — he emailed back, “It’s tempting!”
Since the start of the Proposition 8 debate in federal court four years ago, Boutrous has been overshadowed by a higher-profile Ted, colleague Theodore Olson. Both are partners at Gibson, Dunn & Crutcher (Boutrous in Los Angeles, Olson in D.C.) and have worked together for nearly 30 years. Both are part of the high-powered No on 8 legal team.
Olson is renowned in legal circles as a leading conservative, which makes his pairing with David Boies (whom he faced on opposite sides of the Bush v. Gore case in 2000) so interesting.
Preparing for the Big Day
Olson will be the attorney arguing before the justices on behalf of the No on 8 team on Tuesday.
To prepare for oral arguments, the team has been doing simulations.
“We’ll have done four moot courts by Tuesday,” Boutrous said, referring to the practice arguments. “We’ve had a mix of experienced Supreme Court litigators from inside and outside the firm join us for the preparation.”
“Ted [Olson] walks up to the podium,” Boutrous said. “The four or five lawyers playing the roles of justices stay in character during the hourlong session. They let him get off a few sentences, and then they just go at him.”
“People like playing justices,” Boutrous joked.
The moot courts, he said, allow the No on 8 legal team to try out and edit their best arguments, to see where a particular argument will lead and to practice avoiding the creation of unnecessary issues that could bog down the argument or distract from the main points.
The No on 8 team will have 20 minutes to argue its case. The U.S. Solicitor General, also opposing Prop. 8, gets 10 minutes. The Yes on 8 team gets the other 30 minutes.
Reading the Justices
“Don’t get too happy or too depressed about the questions they ask during the arguments,” Boutrous said. “You just don’t know what the purpose of the question is. You have to stay even-keeled.”
In fact, he noted, he was stunned to see he’d gotten Justice Elena Kagan’s vote in that recent 9-0 decision because her questions during oral arguments seemed so hostile to his side.
On a lighter matter, I asked how they decide what to wear in court.
“You always keep to dark colors,” Boutrous said. “I remember once I saw a lawyer came into court with a powder-blue jacket. I thought, ‘This isn’t going to go well!'”
‘Abstract Principles Versus Real People’
Boutrous and the rest of team appear confident.
I asked what is the biggest hurdle his opponents face.
“They’ve never been able to prove that excluding gay people is necessary to anyone or anything,” Boutrous said. “They can’t point to any harm done by same-sex marriage. It’s their abstract principles versus real people and their children being harmed. They just want to be like everybody else.”