By Lisa Keen
Keen News Service: Part one of a two part series
Just beyond the Feb. 27 deadline for filing their briefs to the U.S. Supreme Court to lay out their arguments against state bans on marriage for same-sex couples, the 36 attorneys signed onto those briefs have another looming task. They must choose who will go before the nine justices in April to deliver the arguments orally.
The event will be historic — even more so than the oral argument delivered by Ted Olson when he appeared before the court in March 2013 to urge the court to strike down California’s ban on same-sex marriage. Representing hundreds of thousands of same-sex couples and their families in the high profile appearance will also be a privilege that hundreds of attorneys have helped make possible through many dozens of court cases through two decades. And the attorneys who carry the mantle at the Supreme Court will inevitably feel the weight of a profound responsibility.
Who will get the honor and burden?
The U.S. Supreme Court has made that question a little more difficult than usual. It has asked the plaintiffs in four different cases across four different states to choose only two attorneys — one to tackle each of the two questions the court has limited argument to.
Right now, the 36 attorneys representing those plaintiffs don’t want to talk about who will argue the cases; they are concentrating on meeting the Feb. 27 deadline for their written argument briefs. Several said the group was not yet discussing even how to make the decision among themselves.
Although the group does not have to choose among themselves, several of them are eminently qualified and interested.
“Who wouldn’t like to argue this before the high court?” said Mary Bonauto, the attorney who represented plaintiff couples in Massachusetts before the state supreme court there to win the historic decision in 2003 that led to that state becoming the first to allow marriage for same-sex couples.
Bonauto, the civil rights director for Gay & Lesbian Advocates & Defenders (GLAD), is one of five attorneys signed onto the briefs in the Michigan case, DeBoer v Snyder.
In recent years, various studies have suggested that attorneys with experience arguing before the U.S. Supreme Court are more likely to win there. Harvard Law Professor Richard Lazarus put it this way in a 2008 article: “(W)hether counsel in a Supreme Court case is an experienced Supreme Court advocate is a significant determinant in the outcome of the case.”
There are plenty of reasons to believe that is true, but there are also factors that may be skewing data toward that conclusion.
A Reuters report last December, which included interviews with all the justices except Chief Justice John Roberts, suggested the Supreme Court is somewhat clubby when it comes to oral arguments.
In the last term, said Reuters, 53 percent of the cases argued included at least one attorney who was a former clerk to the Supreme Court justices. Almost 20 percent of the attorneys arguing before the court in the past decade were from a group of only eight male lawyers with “especially deep connections to justices past and present.” Seven of the eight had worked for a justice or in the U.S. Solicitor General’s office — or both.
Those eight include former Solicitor Generals Ted Olson and Seth Waxman, the latter being a lead author for a brief from a group of Republicans who favored striking down Proposition 8.
“In this ever more intimate circle, lawyers say, chemistry with the court is key,” reported Reuters. The justices “speak glowingly of the repeat performers, explaining that elite lawyers help them understand and sift through complex legal issues.”
The 36 attorneys on the marriage equality side of the four 6th Circuit cases — which include nine attorneys from the three major LGBT legal groups (GLAD, Lambda and NCLR) — must soon decide whether to play to that chemistry.
With previous historic LGBT cases, the decision was somewhat easier. The 2003 Lawrence v Texas case was primarily a Lambda Legal case, so the decision was essentially an internal one at Lambda. The 1996 Romer v Evans case, regarding Colorado Amendment 2, came down to a comfort level the Colorado plaintiffs had with their chosen local attorney, a former state supreme court justice.
Choosing who will argue the 6th Circuit marriage cases will likely be more difficult because of the involvement of so many attorneys, several groups, and the long, complicated litigation history that got these cases here.
Jenny Pizer, a senior attorney with Lambda Legal, said there is “no set way” for how to make the decision.
“There are numerous immensely talented, effective and compelling advocates involved in these cases and working on this issue, so there are potentially many right choices. There is an embarrassment of riches of top legal talent.”
The overriding consideration, she said, will be “who gives us the best way for success at the Supreme Court that will have the strongest long-term resonance.”
Meanwhile, in other developments, the U.S. Supreme Court on Feb. 9 rejected a request from the state of Alabama to stay enforcement of a federal district court’s order that the state stop enforcing its laws against marriage for same-sex couples. Despite other efforts by the state to avoid complying with the federal judge’s ruling, many same-sex couples are now obtaining marriage licenses from various state clerks.
As with previous refusals to issue stays, Justices Antonin Scalia and Clarence Thomas were the only justices to indicate that they would have granted a stay. The three-page dissent, penned by Thomas, said it was “ordinary practice” for the high court to grant such stays and the court’s refusal to grant the stay to Alabama “may well be seen as a signal of the (Supreme) Court’s intended resolution” of the marriage ban question. Thomas criticized the refusal to grant the stay as “another example of this Court’s increasingly cavalier attitude toward the States,” “popular referendums” and elected representatives.
“I would have shown the people of Alabama the respect they deserve,” wrote Thomas, “and preserved the status quo while the Court resolves this important constitutional question.”