David Boies | Gay Marriage | News | Proposition 8

What is Attorney David Boies's Biggest Fear About the Upcoming SCOTUS Prop 8 Arguments?

David Boies gives an interview to USA Today on the upcoming Prop 8 case before the Supreme Court:

BoiesBoies, 72, said his biggest fear is that most of the nine sitting justices "are my age or older" and have grown up in an environment of "extreme hostility to homosexuals." He added, "Judges are supposed to put that aside and our very best judges do, but it's not an easy task."

The paper adds:

In the interview, Boies drew parallels between the struggle for same-sex marriage and the fight for interracial marriage in the 1960s. Opposition to both, he said, comes from the "same reservoir of ignorance" about those involved.

But the USA has undergone a "tremendous" demographic shift in attitudes, especially among young people, he said. "Unlike people of my generation, my children and my grandchildren have grown up living with, knowing people who were outwardly gay and lesbian. And they have learned that they're just like us. … And when you see that they're just like us, the rationale for discrimination melts away."

Watch the 8-minute interview here.

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  1. it's mindblowing for folks of my generation (well, at least those of us who weren't brought up by bitter "we miss Segregation" racists) to fathom that people like Jesse Helms served in politics as long as they did.

    Supreme Court Judges? Hi, might as well be a total Nazi.

    i jest. sort of. not really. it's like an extension of the C and D students that become cops, as opposed to those who have a genuine drive to Serve and Protect: Supreme Court Judge - feeling all big and powerful. and what do the Scalia's of the world do? disregard all they they're supposed to know, because it's more fun to them to vote based on emotional opinion, and then try to find a logical way to weasel it into sense with some form of selective vocabulary.

    using the law to justify their OWN personal opinionated prejudices, rather than use the law to...you know, Do The Right Thing. A Spike Lee joint.

    Posted by: Little Kiwi | Mar 14, 2013 11:57:55 AM

  2. KIWI - You have shown yourself to be knowledgeable on a number of subjects. This doesn't appear to be one of them.

    Our Supreme Court justices are bound by the Constitution. They are not infallible, but all in all they do a damned good job. My two major complaints with them is that their rulings are too narrow and they take too long to get their work done.

    Supreme Court Justices are not the "b and c students who become cops". They are for the most part at the top of their field before being appointed. I suspect that your opinion of Scalia is at least partly one of class distinction, him coming off as something of a guido. He's actually quite well qualified, certainly as well qualified as Kagan and Sotomayor.

    Again, I predict that Scalia will surprise everyone by voting in favor of gay rights. These people do set aside their prejudices in their rulings. If that were not the case, then the Justices would never have found for the Nazis to march through Skokie.

    Posted by: David Hearne | Mar 14, 2013 12:16:19 PM

  3. haha , in what dream are we living in Hearne.

    Posted by: Ant | Mar 14, 2013 12:33:21 PM

  4. Just a nitpick: it's not a "trial" in front of the Supreme Court -- it's an oral argument. The trial already took place. This is the terminal appeal.

    Posted by: Correction | Mar 14, 2013 12:42:08 PM

  5. I agree that Little Kiwi mischaracterized the qualifications of the Supreme Court justices, who are by and large very impressive people, although I agree they often disappoint when they get their coveted seat. Justice Scalia is impressive on paper, and I agree is as qualified as several other judges, but I do think he's taking advantage of the lifetime appointment to coast through his job. Judges who take the job seriously understand that the Constitution needs to be interpreted to address the many issues we face today that simply never existed 250 years ago. Scalia doesn't do that, and sticks to a really simplistic, and really easy, approach that if it's not spelled out in the constitution, the right doesn't exist. That is absurd on its face and a really lazy approach to the role of a judge, since it would negate all sorts of things like speed limits that are an accepted part of life. He has said on numerous bookselling promotional tours that gay rights are easy; because our founding fathers didn't contemplate marrying each other, we can't either. I think Roberts ends up overturning DOMA, although he'll go against us on Prop 8, and I think that's Kennedy's position as well, although there's an outside chance we get him on Prop 8 as well. Scalia won't even read a word of the submissions, he'll make a couple of wisecracks at the trial, and happily go down in history as a gay hater.

    Posted by: Brian | Mar 14, 2013 12:44:32 PM

  6. Brian - that was my point. Power brings out the truth in human nature. Some folks use it for the wrong reasons, in all the wrong ways.

    Posted by: Little Kiwi | Mar 14, 2013 12:47:57 PM

  7. "Again, I predict that Scalia will surprise everyone by voting in favor of gay rights. These people do set aside their prejudices in their rulings."

    Funniest comment of the week. Wait... you do mean that to be funny, don't you?

    Are you talking about the version of Scalia from the Bizarro Universe in Superman?

    Posted by: bobbyjoe | Mar 14, 2013 12:52:22 PM

  8. And once again Little Kiwi turn this into his own personal blog. Post a comment and move on.

    Posted by: beef and fur | Mar 14, 2013 12:57:42 PM

  9. I put my faith in Roberts, who will not want to see "his" Court as being on the wrong side of history. He can read the demographics. In 30 years,
    when today's young people will become Justices, they will overturn any negative ruling. Every Judge hates to be over-ruled.

    As for Scala, he should be forced to recuse himself. He has made many public statements about his views of gay marriage. There is no question about how he will rule. Yes, he will interpret the Constitution to conform to his pre-existing bigoted beliefs; but then, he uses his "strict interpreter" of the Constitution as he sees fit, e.g. Citizens United.

    Posted by: Gr8guyca | Mar 14, 2013 1:11:55 PM

  10. The logistics of this are:

    Sonia Sotomayor
    Stephen Breyer
    Elena Kagan
    Ruth Bader Ginsburg

    are almost certainly going to vote in our favor in both cases.

    Anthony Kennedy
    John Roberts

    look very likely to lean in our favor. I won't go into Kennedy's previous majority opinion in "Lawrence v. Texas" but it seems almost inconceivable that he could reverse the implicit logic of his own opinion in 2003.

    We need only 5 votes. Olson & Boies are intelligent & authentically passionate advocates, we couldn't ask for a better team representing our case. Momentum is on our side.

    Clarence Thomas

    is the only certain "no" vote in the Prop 8 case. He's been overtly hostile to gay rights on both major cases (Lawrence & Romer) before the court.

    Posted by: will | Mar 14, 2013 2:09:08 PM

  11. Boies to Kennedy: "Vote for gay marriage, or people will no longer think you're hip and with it."

    Here's hoping it works!

    Posted by: BABH | Mar 14, 2013 2:12:46 PM

  12. Wow. I am always amazed by the mischaracterization of what Supreme Court Justices are or are not, or what they do or do not do. Have you people ever bothered to actually read any decisions written by anyone on the Court? If you have, or do it often, you know the idea these people coast through is utter nonsense. Or that they are not some of the most brilliant legal minds today. (Except Thomas, I tend to agree that he is horrible at this job.)

    I disagree with Scalia often. Most of the time. But he is one of the most impressive writers on the Court. And he is not brief in his views. You may not agree, but he's logically consistent with his own view of the role of the Constitution in his writing. Frankly, one of the worst writers on the Court in my lifetime has been Sandra Day O'Connor.

    To Will's point, I agree with his assessment of how the justices are leaning. I think Roberts is very concerned with his legacy and will be very open minded. But we don't need him. We need Kennedy. And while I agree that the logical consistency would make one think Kennedy must come out in favor of marriage equality, Scalia actually made it clear that the Lawrence decision would bring us to wehre we are today. And Kennedy disagreed with him. So Kennedy to some degree would have to admit he was wrong that Lawrence does not inevitably lead one to marriage equality. Fortunately we have about 13 years of changing public opinion on this issue which I think helps him.

    I would also be VERY interested to see how Thomas handles the DOMA issue. It is rumored that he thinks it is unconstitutional because it infringes on states rights. I think it will be fascinating to watch him weave around his own views on the role of the federal government here. Assuming he bothers to write anything at all. He's very likely to say it should be dismissed on standing issues to avoid it altogether.

    Posted by: Lawyah | Mar 14, 2013 3:01:23 PM

  13. Interesting commentary here, with a notable exception or two...

    To Lawyah's point, the justices can be very clever in slicing the onion; electing to justify a position by the narrowest parameter in order to either avoid and issue or decide it on it's smallest terms. Good luck with that, Thomas.

    Scalia, claiming to be a strict-interpreter of the Constitution, is no different than religious folks that cherry-pick from the bible. It's just more rationale for their own prejudice & bigotry. Period.

    Posted by: Pete N SFO | Mar 14, 2013 3:27:57 PM

  14. I cannot imagine Scalia deciding to be on the right side of history on these cases.

    What will be fascinating to me is how he weasels out of his own stated precedent while claiming to believe in giving precedent and tradition so much deference. In his Lawrence dissent, he flatly stated that the Lawrence ruling eliminates any justification for banning marriage equality.

    The pretzels the man will have to bend into to justify voting against it now will be epic.

    Posted by: Lymis | Mar 14, 2013 4:06:14 PM

  15. Lymis: It's easy enough for him to say that he believes now, as he believed then, that Lawrence was wrongly decided and should be overturned. No pretzels. Happens all the time.

    Posted by: BABH | Mar 14, 2013 5:04:47 PM

  16. @ Lawyah. Yes, I do read some of the decisions. And, while Scalia may be a great writer, I think his beliefs are wrong and he applies them inconsistently.

    I am offended by his view that the Constitution is not a "living" document. (If it's not living, then is it dead?) By his logic, women would not have the vote because that right is not specifically in the Constitution. And, of course, the signers didn't authorize an air force.

    In public appearances and speeches, he has shown himself to be both arrogant and bullying. Rachel Maddow made an interesting comment that he is like an online "troll." He deliberately says outrageous things, just to stir up debate.

    He may be a great writer and thinker, but that doesn't make him right.

    Posted by: gr8guyca | Mar 14, 2013 6:00:02 PM

  17. He weasels otu of it by saying that Lawrence is wrong. Simple enough. He thought it was wrong when it was decided. And he has also said, many times, stare decisis doesn't apply when you're talking about decisions made 10 - 20 years ago.

    The idea he has to weasel out of it is silly - he didn't support the majority decision in Lawrence and I'd imagine still considers it bad law.

    Posted by: Lawyah | Mar 14, 2013 6:42:20 PM

  18. @GR8GUYCA - please cite examples of decisions where he has applied his originalist views inconsistently instead of pratting on with nonsense.

    He doesn't argue that the Constitution never applies to modern situations, he simply believes you don't make the Constitution provide rights in those situations never intended by its framers to exist. I never said I agree with his view. I simply point out that he's pretty consistent about it. He dissented in the VMI case that applied intermediate scrutiny to women based on the 14th Amendment because he argues the framers of the 14th Amendment did not intend for it to apply to women as a class.

    I do agree with the above commenter that there are certainly situations where one can slice the onion, but let's face it, the originalist idea regarding the Constitution makes it pretty easy to not have to. Especially on most issues involving substantive due process.

    Posted by: Lawyah | Mar 14, 2013 6:48:59 PM

  19. "These people do set aside their prejudices in their rulings."

    You clearly have not read a gay-related decision from Scalia.

    Scalia is a brilliant man. He is also deeply prejudiced. And he's too certain of himself to do the right thing: recuse himself from gay-rights cases.

    Posted by: BobN | Mar 14, 2013 6:53:30 PM

  20. @BOBN, cite please. Seriously. People say things like this but I want an example. I've read pretty much all of the gay-related caselaw. In most cases, Scalia is writing a dissent, not a majority opinion and therefore is not issuing a "ruling." The closest he comes to being anti-gay is perhaps his heated language in the Romer dissent, though that seems to be aimed for more at his fellow justices for thinkign their elitist views as superior to those of the Coloradoan people than explicitly against gay people. I'm not saying he loves the gays. But he doesn't use that as his basis for disagreeing with the decisions. And this same reasoning shows up pretty much the same in many cases not involving gays.

    That said, I would point out that Thomas, in his dissent in Lawrence, condemned sodomy laws as stupid. And Scalia seemed much more angry that the majority seemed inconsistent on when stare decisis matters and when it doesn't than anything else.

    Posted by: Lawyah | Mar 14, 2013 7:16:07 PM

  21. I also hate that I'm actually having to defend Scalia. There are many reasons to think he's a terrible jurist. Stick to the obvious ones and stop projecting perceptions as truths.

    Posted by: Lawyah | Mar 14, 2013 7:18:07 PM

  22. There is a difference between not granting a right and revoking a right. It's entirely possible that (ahem) certain individuals who on the court won't care about that distinction and rule based on their prejudices of course. That would be Thomas and Scalia. As for the remaining justices they are more likely to do one of two things: They will focus on the question of standing and rule that the proponents of ballot measures lack Article III standing, which would result in a narrow win for us since it would finalize the prior decisions on Prop 8 without the possibility of immediately applying them elsewhere. Alternatively the will rule on the merits, understand that while there is no constitutional right to marriage, if a state has granted that right, revoking it for a specific class of citizens requires a compelling interest. I really think a decision upholding Prop 8 is the least likely scenario.

    And on DOMA the evidence is pretty much overwhelming: there's no conceivable way that travesty passes constitutional muster. It won't be a unanimous decision because Scalia will NEVER vote to overturn DOMA no matter how much contorted logic he has to apply; he hates gay people and will craft his opinions to support his prejudice. Thomas may be a reliable vote to uphold as well though there are (some limited) reasons to hope that he'll surprise us. As for the other justices, they are sufficiently rational to see the intention and realities of DOMA and to rule appropriately. I think the court will continue to avoid ruling on the question of level of scrutiny where laws pertaining to sexual orientation is concerned for as long as they possibly can. I'd like to think I'm mistaken because, again, if the question is decided there's no way they could fail to find in our favor; the arguments on our side make the arguments on the other side look patently absurd.

    Posted by: sfbob | Mar 14, 2013 7:51:19 PM

  23. "By his logic, women would not have the vote because that right is not specifically in the Constitution." - GR8GUYCA

    @LAWYAH: You probably have better things to do than to argue Constitutional law with someone who doesn't know that women's suffrage is, in fact, explicitly written into the Constitution. (Let alone people who think that Scalia and Thomas aren't smart. Of course they are. They're just *wrong* a lot of the time.)

    Posted by: BABH | Mar 14, 2013 7:55:21 PM

  24. @David Hearne; You will be happier if you do what I do. Don't read Littlekiwi's posts. Pretend he isn't there. Stop feeding the troll.

    To those of you who actually know the Constitution, the law, and have read the justices closely enough to comment intelligently, thank you for a most insightful analysis. You have enlightened me and given me some reason for hope. I am much obliged to you for this.

    Posted by: NullNaught | Mar 15, 2013 4:43:38 AM

  25. That this country is allowing people that ancient to annoint our future is just sad. Once again the US proves how to lead from behind. We are laughingstocks overseas thanks to our do nothing legislative branch and only Greece saves us from milling at the bottom alone.

    Posted by: DC Arnold | Mar 15, 2013 9:09:25 AM

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