Ted Olson, Law vs. Policy, and the Role of Courts vs. Counsel:
Like my co-blogger Dale, I was very interested in today's New York Times article on Olson's decision to argue in favor of a constitutional right to same-sex marriage. The Times mostly covers the story as "prominent conservative takes liberal view and thereby annoys conservatives." That's a significant part of the story. At the same time, the fact that a prominent conservative lawyer like Ted Olson is personally in favor of same-sex marriage isn't particularly newsworthy. I haven't done any formal study on this, but my rough sense is that opinion on that policy question is somewhat divided among Federalist Society types, especially among younger members. Social conservatives tend to be "against," while more libertarian members are often "for."

  What makes Olson's involvement in the same-sex marriage litigation so interesting — and among right-of-center lawyers, controversial — is that his position is relying on the kinds of constitutional arguments that Olson is personally so closely identified with rejecting. The Times story touches on this, but I would add a bit more detail. Those who have watched Olson's annual Supreme Court Roundups for the Federalist Society know how harsh Olson tends to be about judges who Olson thinks are constitutionalizing their policy views, especially when that means constitutionalizing social policies popular among elites. Olson hasn't just been critical of those who take a broad view of constitutional meaning in this setting: he has been dismissive and sometimes even brutal.

  The surprising aspect of the new case is that it has Olson making same kinds of constitutional arguments that he has specialized in ridiculing for so long. It's the juxtaposition that is surprising. Of course, different people will disagree on which Ted Olson is right. Some will say he was wrong before and right now; others will he was right then and wrong now. But however you look at it, it seems hard to reconcile the two.

  I personally don't see anything wrong with that. Olson is a lawyer, and he's not under an obligation to maintain consistency between what he says when he speaks for himself and what he says when he speaks for a client. Most attorneys who are also public figures at some point make legal arguments that they themselves would reject if they were judges. This is plainly true with Olson: As Solicitor General in 2003, Olson defended campaign finance laws; this Term, as counsel for a private client, he is attacking the very same laws he defended six years ago. Clearly in at least one of those cases he is making an argument that he finds unpersuasive. So from the standpoint of Olson as a lawyer, there's nothing so surprising here. Still, from the standpoint of Olson as a public figure, it's a surprising move.

  UPDATE: I fiddled with the 1st paragraph of the post for reasons of accuracy.