1 00:00:15,356 --> 00:00:29,196 Speaker 1: Pushkin. Hey there, Michael lewis here. I'm dropping into the 2 00:00:29,196 --> 00:00:32,556 Speaker 1: feed today with some sad news. One of the voices 3 00:00:32,596 --> 00:00:34,316 Speaker 1: you may have heard if you listen to our third 4 00:00:34,356 --> 00:00:38,276 Speaker 1: episode this season is no longer with us. The constitutional 5 00:00:38,316 --> 00:00:42,356 Speaker 1: lawyer Ted Olsen. He died November the thirteenth in Virginia 6 00:00:42,476 --> 00:00:46,076 Speaker 1: at the age of eighty four. Olson argued the case 7 00:00:46,196 --> 00:00:49,236 Speaker 1: Murphy versus the NCAA that led to the legalization of 8 00:00:49,236 --> 00:00:52,316 Speaker 1: sports gambling in the United States, but his career as 9 00:00:52,356 --> 00:00:54,476 Speaker 1: a lawyer has been about so much more than that. 10 00:00:55,436 --> 00:00:58,076 Speaker 1: For example, he argued the case that allowed same sex 11 00:00:58,116 --> 00:01:01,476 Speaker 1: couples to get married. He defended the rights of Dreamers, 12 00:01:01,756 --> 00:01:05,796 Speaker 1: people brought to this country undocumented as children. He also 13 00:01:05,956 --> 00:01:08,476 Speaker 1: argued for a lot of Republican causes, including the case 14 00:01:08,516 --> 00:01:10,756 Speaker 1: that got George H. W. Bush declared the winner of 15 00:01:10,756 --> 00:01:14,276 Speaker 1: the two thousand presidential election, and he later served as 16 00:01:14,396 --> 00:01:18,796 Speaker 1: US Solicitor under Bush. Ted Olson was involved in the 17 00:01:18,796 --> 00:01:22,676 Speaker 1: Federalist Society, the largely conservative legal movement that has shaped 18 00:01:22,716 --> 00:01:26,956 Speaker 1: the Supreme Court for decades to come. He was a 19 00:01:26,956 --> 00:01:30,396 Speaker 1: complicated and interesting character in one of the most brilliant 20 00:01:30,476 --> 00:01:33,036 Speaker 1: legal minds of our era, and it was an honor 21 00:01:33,076 --> 00:01:35,836 Speaker 1: to get to talk with him. I wanted you to 22 00:01:35,876 --> 00:01:38,716 Speaker 1: hear more of my original conversation with him. Because we 23 00:01:38,796 --> 00:01:42,196 Speaker 1: only use little snippets in our episode. Think of this 24 00:01:42,196 --> 00:01:45,196 Speaker 1: as a kind of small memorial. We'll be back with 25 00:01:45,236 --> 00:01:48,556 Speaker 1: our regular episodes next week. But meanwhile, here's me with 26 00:01:48,636 --> 00:01:52,836 Speaker 1: Ted Olson back in June. Do you remember the first 27 00:01:52,916 --> 00:01:54,996 Speaker 1: case you argued before the Supreme Court. 28 00:01:55,436 --> 00:01:58,556 Speaker 2: I do. It was while I was an assistant Attorney General. 29 00:01:59,076 --> 00:02:03,876 Speaker 2: It was in nineteen eighty three. It is a practice 30 00:02:04,876 --> 00:02:09,116 Speaker 2: in the Justice Department for the Solicitor General, who controlled 31 00:02:09,836 --> 00:02:14,036 Speaker 2: litigation by the United States and the Supreme Court, to 32 00:02:14,076 --> 00:02:18,876 Speaker 2: allow any of the assistant attorneys general there are six 33 00:02:18,996 --> 00:02:22,476 Speaker 2: or eight of them, to argue one case during their 34 00:02:22,516 --> 00:02:26,556 Speaker 2: tenure in the Supreme Court, and the Solicitor General at 35 00:02:26,556 --> 00:02:30,236 Speaker 2: the time, whose name was rex Lee, decided that a 36 00:02:30,276 --> 00:02:33,876 Speaker 2: separation of powers case was appropriate for me. I was 37 00:02:34,196 --> 00:02:37,196 Speaker 2: very anxious to take on a case in the Supreme Court, 38 00:02:37,636 --> 00:02:41,516 Speaker 2: and he got a case called Garcia versus San Antonio Transit, 39 00:02:41,876 --> 00:02:46,716 Speaker 2: which involved the separation of powers vertically between powers of 40 00:02:46,756 --> 00:02:49,396 Speaker 2: the states and power of the federal government, which of 41 00:02:49,436 --> 00:02:52,676 Speaker 2: course comes up again in this Murphy case. It was 42 00:02:52,716 --> 00:02:58,836 Speaker 2: whether the states running their municipal transit systems had to 43 00:02:58,876 --> 00:03:05,036 Speaker 2: follow federal statutes with respect to wage controls, hours, overtime, 44 00:03:05,396 --> 00:03:09,716 Speaker 2: and fair labor standards. And the argument that Tonia was 45 00:03:09,796 --> 00:03:12,996 Speaker 2: making was that they had the right to set those 46 00:03:13,036 --> 00:03:17,316 Speaker 2: standards without interference by the federal government. The federal government 47 00:03:17,436 --> 00:03:20,236 Speaker 2: was saying, oh, no, we have the power to impose 48 00:03:20,276 --> 00:03:24,636 Speaker 2: those standards on you in your employment employer capacity. 49 00:03:24,836 --> 00:03:26,396 Speaker 1: So you were representing the federal government. 50 00:03:26,916 --> 00:03:29,556 Speaker 2: Yes. I was an assistant Attorney General at the time, 51 00:03:29,956 --> 00:03:32,676 Speaker 2: So yes, I was representing the federal government in that case. 52 00:03:32,676 --> 00:03:34,036 Speaker 1: How did you feel about that case? 53 00:03:34,956 --> 00:03:37,196 Speaker 2: I wanted to make the case that the federal government 54 00:03:37,276 --> 00:03:42,196 Speaker 2: had the power to impose these requirements on employers in 55 00:03:42,236 --> 00:03:47,556 Speaker 2: the commercial context, upon states and communities, and so very 56 00:03:47,676 --> 00:03:51,956 Speaker 2: enthusiastic about arguing it. It turned out that the Supreme 57 00:03:51,996 --> 00:03:55,756 Speaker 2: Court thought the case was so important that they wanted it. 58 00:03:56,156 --> 00:04:00,796 Speaker 2: They set it for reargument for the following term and 59 00:04:00,916 --> 00:04:06,396 Speaker 2: specifically asked a further briefing on the question whether or 60 00:04:06,476 --> 00:04:10,436 Speaker 2: not the Tenth Amendment protect to states from that kind 61 00:04:10,476 --> 00:04:13,076 Speaker 2: of interference by the federal government or not. 62 00:04:13,756 --> 00:04:14,236 Speaker 1: Did you win? 63 00:04:16,116 --> 00:04:18,836 Speaker 2: The federal government won that case, and. 64 00:04:18,796 --> 00:04:22,516 Speaker 1: So you said you were anxious to argue something before 65 00:04:22,516 --> 00:04:24,476 Speaker 1: the Supreme Court. Did you mean anxious or eager? 66 00:04:25,276 --> 00:04:26,996 Speaker 2: Eager? I was anxious too. 67 00:04:27,436 --> 00:04:29,516 Speaker 1: What did it feel like? I'm just curious, like if 68 00:04:29,556 --> 00:04:31,476 Speaker 1: you could take us back to the first time you're 69 00:04:31,516 --> 00:04:35,756 Speaker 1: standing up before nine justices and having to make a case, well. 70 00:04:35,596 --> 00:04:40,716 Speaker 2: It is a thrilling and terrifying experience. The justices, of course, 71 00:04:40,836 --> 00:04:45,076 Speaker 2: are all very learned in the subjects that you're arguing 72 00:04:45,116 --> 00:04:48,556 Speaker 2: for them. In this case, there was a constitutional question. 73 00:04:48,996 --> 00:04:51,756 Speaker 2: They were very familiar with it. It was a subject 74 00:04:51,756 --> 00:04:56,556 Speaker 2: that Justice Renquist, before he was Chief Justice, was very 75 00:04:56,596 --> 00:05:01,276 Speaker 2: interested in. And you don't dare make a mistake, especially 76 00:05:01,676 --> 00:05:05,156 Speaker 2: if you're representing the federal government. Everything that you say 77 00:05:05,916 --> 00:05:09,836 Speaker 2: is the standard, is the policy of the United State government. 78 00:05:09,916 --> 00:05:13,356 Speaker 2: That's a very heavy responsibility, so you have to be 79 00:05:13,596 --> 00:05:17,516 Speaker 2: very very well prepared. Each of the nine justices would 80 00:05:17,556 --> 00:05:23,036 Speaker 2: interrupt and ask questions, interrupt your train of thought, interrupt 81 00:05:23,036 --> 00:05:26,356 Speaker 2: your answer to the other justices questions. So it's a 82 00:05:26,476 --> 00:05:30,836 Speaker 2: very dynamic situation and you have to be very well prepared. 83 00:05:30,876 --> 00:05:34,196 Speaker 2: I was thrilled to be there, and I was very 84 00:05:34,436 --> 00:05:37,796 Speaker 2: anxious and eager to do it right. 85 00:05:38,396 --> 00:05:40,916 Speaker 1: How's it different from just arguing a normal case. 86 00:05:41,676 --> 00:05:44,076 Speaker 2: Well, in normal case, you might be talking to one 87 00:05:44,236 --> 00:05:49,436 Speaker 2: judge or one justice. This was nine justices. Each have 88 00:05:49,516 --> 00:05:52,796 Speaker 2: their own history, Each have their own background with respect 89 00:05:52,876 --> 00:05:56,636 Speaker 2: to constitutional principles or whatever it is that you're arguing, 90 00:05:57,596 --> 00:06:01,676 Speaker 2: and they are very independent. They're fiercely independent. You can't 91 00:06:01,716 --> 00:06:05,276 Speaker 2: assume that someone is a liberal or a conservative justice, 92 00:06:05,556 --> 00:06:07,796 Speaker 2: that they might come out a certain way. You can 93 00:06:07,836 --> 00:06:11,916 Speaker 2: look at decisions they've made, or opinions they've written, concurring 94 00:06:11,956 --> 00:06:15,796 Speaker 2: opinions or dissenting opinions or majority opinions. You can track 95 00:06:15,876 --> 00:06:18,836 Speaker 2: their record. And that's what I do. Whenever I argue 96 00:06:18,836 --> 00:06:20,956 Speaker 2: a case in the Supreme Court, I go back and 97 00:06:20,996 --> 00:06:23,636 Speaker 2: I have some of my associates help me with this. 98 00:06:23,996 --> 00:06:28,356 Speaker 2: Take a look at each justice and the various issues 99 00:06:28,396 --> 00:06:31,316 Speaker 2: in the case. Frequently there are more than one issue, 100 00:06:31,636 --> 00:06:34,476 Speaker 2: and how would they rule, how would they think about 101 00:06:34,516 --> 00:06:38,076 Speaker 2: each one of these issues, and the inter relationship between 102 00:06:38,116 --> 00:06:42,316 Speaker 2: those issues and the inter relationship between themselves and the 103 00:06:42,356 --> 00:06:46,236 Speaker 2: other justices. A justice might ask you what appears to 104 00:06:46,276 --> 00:06:49,596 Speaker 2: be a softball question in the Supreme Court, and you 105 00:06:49,676 --> 00:06:51,876 Speaker 2: have to be careful answering that kind of a question 106 00:06:51,956 --> 00:06:55,516 Speaker 2: because you might please the justice who asked that question, 107 00:06:55,876 --> 00:07:00,156 Speaker 2: but alienate eight others. So it's a very tricky situation. 108 00:07:00,396 --> 00:07:03,396 Speaker 1: Do you feel like between that first time you stood 109 00:07:03,476 --> 00:07:06,396 Speaker 1: up to argue a case and by the time you're 110 00:07:06,436 --> 00:07:10,436 Speaker 1: standing up to ar you Murphy, that you'd improved? 111 00:07:11,796 --> 00:07:13,236 Speaker 2: Well, I hope i'd improved. 112 00:07:13,636 --> 00:07:16,036 Speaker 1: Like if I was watching the if I was watching 113 00:07:16,236 --> 00:07:19,516 Speaker 1: the young Tedduhlson versus the middle aged tedtdles and in front, 114 00:07:19,916 --> 00:07:22,556 Speaker 1: up and up in front of the Supreme Court, what 115 00:07:22,676 --> 00:07:23,716 Speaker 1: difference is what I notice? 116 00:07:23,796 --> 00:07:26,276 Speaker 2: Well, I'm not sure. I haven't looked at back at 117 00:07:26,316 --> 00:07:29,116 Speaker 2: it that way. I'll tell you this, every time I 118 00:07:29,276 --> 00:07:32,316 Speaker 2: argue a case, no matter where it is, what level 119 00:07:32,316 --> 00:07:34,196 Speaker 2: of the court is, you want to be better than 120 00:07:34,236 --> 00:07:37,836 Speaker 2: the time before. You learn from your mistakes. We all 121 00:07:37,956 --> 00:07:42,356 Speaker 2: make them, and you can watch other people make mistakes 122 00:07:42,436 --> 00:07:45,076 Speaker 2: or do things that are they're dumb, or you might 123 00:07:45,156 --> 00:07:48,356 Speaker 2: walk into something that you hadn't prepared for. That'll tell 124 00:07:48,396 --> 00:07:51,356 Speaker 2: you have to be better prepared next time. By the 125 00:07:51,396 --> 00:07:53,676 Speaker 2: time we argued the Murphy case, I had argued it 126 00:07:54,316 --> 00:07:58,596 Speaker 2: three or four times in federal district court and two 127 00:07:58,756 --> 00:08:01,876 Speaker 2: or three times in the United States Court of Appeals 128 00:08:01,916 --> 00:08:04,836 Speaker 2: for the Third Circuit. So by then the issues were 129 00:08:05,876 --> 00:08:09,436 Speaker 2: something that I'd gone over before, and we had very, 130 00:08:10,036 --> 00:08:15,476 Speaker 2: very forceful and strong capable opponents. Paul Clement, who argued 131 00:08:15,516 --> 00:08:19,556 Speaker 2: against me as an absolutely fabulous lawyer the United States, 132 00:08:19,636 --> 00:08:22,876 Speaker 2: was also in that case arguing against me with someone 133 00:08:22,916 --> 00:08:26,076 Speaker 2: from the Solicitener General's office. So the case was very 134 00:08:26,156 --> 00:08:29,796 Speaker 2: very well presented, and the justices knew what the issues were. 135 00:08:29,836 --> 00:08:36,996 Speaker 2: This issue of the United States federal government forcing itself 136 00:08:37,076 --> 00:08:41,876 Speaker 2: on states was an issue that they had heard before, 137 00:08:41,956 --> 00:08:45,796 Speaker 2: although not very often, so it took a lot of preparation. 138 00:08:47,436 --> 00:08:50,196 Speaker 2: Whether I was any better, I hope I wouldn't have 139 00:08:50,196 --> 00:08:52,276 Speaker 2: made as many mistakes as I might have made that 140 00:08:52,316 --> 00:08:52,796 Speaker 2: first time. 141 00:08:52,876 --> 00:08:55,516 Speaker 1: Can you give me an example of a mistake you 142 00:08:55,636 --> 00:08:57,836 Speaker 1: made in your career that you learn from? 143 00:08:58,196 --> 00:09:01,076 Speaker 2: There are ours things that you learn from arguments. We 144 00:09:01,116 --> 00:09:04,796 Speaker 2: prepare so thoroughly that we try to avoid those kind 145 00:09:04,836 --> 00:09:08,596 Speaker 2: of mistakes. Now, occasionally there's some of the justices that 146 00:09:09,316 --> 00:09:11,956 Speaker 2: used to be on the Supreme Court would ask questions 147 00:09:11,996 --> 00:09:15,916 Speaker 2: completely out of left field that you could possibly anticipate. 148 00:09:16,156 --> 00:09:19,636 Speaker 2: And I've had questions from the current justices that I 149 00:09:19,716 --> 00:09:24,196 Speaker 2: thought were not very well conceived. And you have to 150 00:09:24,236 --> 00:09:26,916 Speaker 2: be dance on your feet. The court is allowing a 151 00:09:26,916 --> 00:09:30,076 Speaker 2: little bit more time now for oral argument. But for 152 00:09:30,156 --> 00:09:32,836 Speaker 2: the early part of my career, most of my career, 153 00:09:33,276 --> 00:09:36,876 Speaker 2: the Supreme Court allowed thirty minutes per side. That's it. 154 00:09:37,316 --> 00:09:39,996 Speaker 2: And when your time was up, your time was up, 155 00:09:40,036 --> 00:09:43,836 Speaker 2: and you had to cram your argument, answers to the questions, 156 00:09:43,916 --> 00:09:49,316 Speaker 2: your theme into that thirty minutes and get it all done. 157 00:09:50,916 --> 00:09:53,156 Speaker 1: We'll be right back with more of my conversation with 158 00:09:53,196 --> 00:10:10,076 Speaker 1: ted Olsen. I'm back with Ted Olsen. So I've never 159 00:10:10,116 --> 00:10:12,996 Speaker 1: been inside the Supreme Court. If you if you can 160 00:10:13,036 --> 00:10:14,956 Speaker 1: just paint a picture for me the first time you 161 00:10:14,996 --> 00:10:16,876 Speaker 1: stand up, What does it? What does it look like? 162 00:10:17,196 --> 00:10:21,796 Speaker 2: You're standing at a podium looking at the Supreme Court. 163 00:10:21,956 --> 00:10:25,796 Speaker 2: They are arrayed all night of them in something close 164 00:10:25,876 --> 00:10:30,756 Speaker 2: to an arc, so that the justices and they're arranged 165 00:10:30,796 --> 00:10:34,236 Speaker 2: by and by in order of seniority. The chief Justice 166 00:10:34,236 --> 00:10:38,796 Speaker 2: is in the middle, the senior most colleague on the 167 00:10:38,836 --> 00:10:41,996 Speaker 2: court is to his right, the next on his left, 168 00:10:42,236 --> 00:10:46,236 Speaker 2: and on down to the most junior justices. Now, it's 169 00:10:46,396 --> 00:10:49,076 Speaker 2: enough of a curve that if you're looking at one 170 00:10:49,116 --> 00:10:52,636 Speaker 2: of the justices at one end of the court, one 171 00:10:52,756 --> 00:10:56,396 Speaker 2: end physically of the court. You might not have in 172 00:10:56,436 --> 00:11:01,636 Speaker 2: your eye attention uh the other justices, so it helps 173 00:11:01,676 --> 00:11:04,996 Speaker 2: if you've done it often enough that you recognize voices. 174 00:11:05,676 --> 00:11:09,636 Speaker 2: So they are very very close the chief Justices, probably 175 00:11:09,796 --> 00:11:13,556 Speaker 2: six seven to eight feet from the from the podium 176 00:11:13,556 --> 00:11:17,196 Speaker 2: where you're standing. You stand still, you don't move about, 177 00:11:18,236 --> 00:11:21,916 Speaker 2: and you stand up straight and address the court as 178 00:11:21,996 --> 00:11:25,396 Speaker 2: much as you can. The press is arrayed to your left, 179 00:11:26,276 --> 00:11:29,116 Speaker 2: with some seats that are set aside for the press 180 00:11:29,556 --> 00:11:34,116 Speaker 2: that are perpendicular to where you're standing. In perpendicular to 181 00:11:34,196 --> 00:11:37,836 Speaker 2: the bench behind you are members of the of the 182 00:11:37,956 --> 00:11:41,996 Speaker 2: United States Supreme Court bar probably a couple hundred, and 183 00:11:42,036 --> 00:11:45,316 Speaker 2: then behind them are members of the general public. And 184 00:11:45,436 --> 00:11:49,156 Speaker 2: over to your right are a group of benches reserved 185 00:11:49,196 --> 00:11:53,556 Speaker 2: for relatives and friends of the justices, and behind them 186 00:11:53,636 --> 00:11:56,196 Speaker 2: some of the clerks. It is not a big space, 187 00:11:56,716 --> 00:11:59,956 Speaker 2: not very many people can get in there. The acoustics 188 00:11:59,996 --> 00:12:03,956 Speaker 2: are very very good so that you can hear your voice, 189 00:12:04,196 --> 00:12:08,076 Speaker 2: and my voice fortunately carries quite well. Some of the 190 00:12:08,116 --> 00:12:15,236 Speaker 2: justices speak more softly. Justice Ginsburg was well known to 191 00:12:15,276 --> 00:12:19,676 Speaker 2: speak in a very soft voice and punctuate her speech 192 00:12:20,076 --> 00:12:23,836 Speaker 2: with pauses, so sometimes it was hard to hear what 193 00:12:23,956 --> 00:12:26,796 Speaker 2: she was asking, and sometimes it was difficult to know 194 00:12:27,316 --> 00:12:29,756 Speaker 2: when she was done with the point and you didn't 195 00:12:29,756 --> 00:12:32,796 Speaker 2: want to interrupt, well, she was still about to finish 196 00:12:32,836 --> 00:12:37,116 Speaker 2: a sentence or a question. So it's not easy, but 197 00:12:37,436 --> 00:12:39,836 Speaker 2: it is something that you have to learn and practice 198 00:12:40,516 --> 00:12:43,716 Speaker 2: and become familiar with the justices what their style is. 199 00:12:44,556 --> 00:12:48,716 Speaker 2: Right now, the Chief Justice Roberts is allowing more time 200 00:12:48,756 --> 00:12:51,516 Speaker 2: for argument, so some of these arguments have gone on 201 00:12:51,636 --> 00:12:52,716 Speaker 2: for a couple of hours. 202 00:12:52,876 --> 00:12:57,556 Speaker 1: I'm curious, like, what's your intellectual history with states' rights 203 00:12:57,716 --> 00:13:00,356 Speaker 1: to what do you date your interest in the subject 204 00:13:00,516 --> 00:13:03,596 Speaker 1: of what the federal government should can do and what 205 00:13:03,636 --> 00:13:05,276 Speaker 1: the states should be allowed to. 206 00:13:06,036 --> 00:13:10,196 Speaker 2: Well, that's a difficult question because as it depends upon 207 00:13:10,276 --> 00:13:13,196 Speaker 2: the context, it would be for me it would be 208 00:13:13,276 --> 00:13:18,396 Speaker 2: something that what's the case, what's the issue, what are 209 00:13:18,436 --> 00:13:21,756 Speaker 2: the merits, and what kind of constitutional questions does it raise. 210 00:13:22,116 --> 00:13:25,396 Speaker 2: We have a system of government, as you know, that's 211 00:13:25,516 --> 00:13:30,276 Speaker 2: quite different than systems of government in other countries. We 212 00:13:30,476 --> 00:13:35,476 Speaker 2: have dual in a sense jurisdictions. We have separation of 213 00:13:35,556 --> 00:13:38,916 Speaker 2: powers at the federal level, and we have federalism. States 214 00:13:39,076 --> 00:13:43,476 Speaker 2: are the Constitution says we the people, the Congress, and 215 00:13:43,556 --> 00:13:48,196 Speaker 2: the Constitution allows states to regulate people, it doesn't allow 216 00:13:48,476 --> 00:13:52,276 Speaker 2: it allows Congress to regulate people, doesn't allow Congress to 217 00:13:52,356 --> 00:13:56,876 Speaker 2: regulate states. So there's a delicate balance between what should 218 00:13:56,916 --> 00:13:59,996 Speaker 2: be done and can be done at the local level, 219 00:14:00,076 --> 00:14:04,036 Speaker 2: what the Constitution allocates to Congress to be able to do, 220 00:14:04,236 --> 00:14:07,316 Speaker 2: and where there's space in between. 221 00:14:07,636 --> 00:14:12,036 Speaker 1: So let's talk about the Murphy case. How do you 222 00:14:12,116 --> 00:14:14,916 Speaker 1: decide whether to take on a case? Are you looking 223 00:14:15,116 --> 00:14:18,436 Speaker 1: for whether this has constitutional implications right from the start. 224 00:14:19,276 --> 00:14:23,836 Speaker 2: Well, a lot of it comes to us. We're sitting 225 00:14:23,876 --> 00:14:26,556 Speaker 2: here waiting for clients to come to us and bring 226 00:14:26,636 --> 00:14:30,236 Speaker 2: us difficult problems. I was contacted by one of my 227 00:14:30,356 --> 00:14:34,996 Speaker 2: partners who was very close to Governor Christie. He wanted 228 00:14:35,076 --> 00:14:39,876 Speaker 2: to reinvigorate Atlantic City by allowing Atlantic City to take 229 00:14:39,916 --> 00:14:45,356 Speaker 2: the kind of gambling gaming opportunities that Nevada was doing 230 00:14:45,596 --> 00:14:48,796 Speaker 2: regularly and day in and day out. Atlantic City was 231 00:14:49,516 --> 00:14:53,076 Speaker 2: not thriving, it was suffering, and he felt that if 232 00:14:53,076 --> 00:14:55,916 Speaker 2: we could just have sports betting in there, we would 233 00:14:56,036 --> 00:14:58,836 Speaker 2: help the economy of New Jersey, and that was his goal. 234 00:14:59,476 --> 00:15:02,716 Speaker 2: So he felt, is there a way to challenge the 235 00:15:02,796 --> 00:15:07,316 Speaker 2: constitutionality of that statute? And if there is, what do 236 00:15:07,396 --> 00:15:10,636 Speaker 2: you think of our chances of prevailing. So this was 237 00:15:10,836 --> 00:15:14,076 Speaker 2: just the kind of case that I have always loved, 238 00:15:14,316 --> 00:15:17,516 Speaker 2: a great challenge. It's very rare that you have an 239 00:15:17,556 --> 00:15:22,076 Speaker 2: opportunity to challenge the constitutionality of an Act of Congress 240 00:15:22,476 --> 00:15:25,076 Speaker 2: and seek a court to overturn an Act of Congress 241 00:15:25,116 --> 00:15:28,476 Speaker 2: on constitutional grounds. This was one where there was not 242 00:15:28,596 --> 00:15:33,756 Speaker 2: much precedent. If you've read the briefs, you probably noticed 243 00:15:33,796 --> 00:15:39,076 Speaker 2: that we were opposed by the United States, a National 244 00:15:39,156 --> 00:15:44,076 Speaker 2: Football League, Organized Baseball, the National Basketball Association, the NC 245 00:15:44,276 --> 00:15:48,516 Speaker 2: two AA, just about everyone. We had opposition from it 246 00:15:48,676 --> 00:15:53,436 Speaker 2: from the very beginning. So this was a major legal challenge, 247 00:15:54,036 --> 00:15:59,236 Speaker 2: calling on perseverance and creativity to figure out the arguments 248 00:15:59,236 --> 00:16:03,156 Speaker 2: that could be made to ask Congress to overturn I mean, 249 00:16:03,236 --> 00:16:06,316 Speaker 2: ask the Supreme Court to overturn an act that had 250 00:16:06,356 --> 00:16:10,116 Speaker 2: been very, very popular when it passed, and most people 251 00:16:10,156 --> 00:16:12,556 Speaker 2: felt that it was the right thing that states not 252 00:16:12,716 --> 00:16:16,516 Speaker 2: engage in state and sports betting. So we had lots 253 00:16:16,516 --> 00:16:17,276 Speaker 2: of challenges. 254 00:16:17,756 --> 00:16:20,076 Speaker 1: Did you have any feeling about sports betting at the time. 255 00:16:21,276 --> 00:16:23,716 Speaker 2: I didn't. I didn't have a strong feeling one way 256 00:16:23,836 --> 00:16:27,356 Speaker 2: or the other. Uh during the course of the litigation, 257 00:16:27,516 --> 00:16:31,316 Speaker 2: we knew and we learned that sports betting was taking 258 00:16:31,316 --> 00:16:34,676 Speaker 2: place all over the country. It was legal in the 259 00:16:34,716 --> 00:16:37,916 Speaker 2: state of Nevada, but all over the country people were 260 00:16:37,956 --> 00:16:42,596 Speaker 2: betting on sports, their local teams. All kinds of betting 261 00:16:42,716 --> 00:16:46,156 Speaker 2: was taking place. It was a multi billion dollar industry. 262 00:16:46,476 --> 00:16:50,396 Speaker 2: But it was all unlawful. It was all underground. It 263 00:16:50,476 --> 00:16:54,116 Speaker 2: wasn't regulated because it was illegal, uh, and people could 264 00:16:54,156 --> 00:16:58,996 Speaker 2: be cheated and all kinds of unsavory activities could take 265 00:16:59,036 --> 00:17:02,916 Speaker 2: place because it was taking place. So what we were asking, 266 00:17:02,956 --> 00:17:06,356 Speaker 2: and we wanted to phrase it this way to the 267 00:17:06,436 --> 00:17:10,356 Speaker 2: court and to the courts, is this is something that 268 00:17:10,476 --> 00:17:14,116 Speaker 2: is aside from the legal issues. Now, this is something 269 00:17:14,156 --> 00:17:18,076 Speaker 2: that is happening. If it can be legalized, it can 270 00:17:18,156 --> 00:17:21,556 Speaker 2: be regulated. You can put accountants in, you can require 271 00:17:21,636 --> 00:17:26,676 Speaker 2: the operators to be transparent and to be subject to 272 00:17:26,796 --> 00:17:30,836 Speaker 2: rules and regulations, and of course to a reasonable amount 273 00:17:30,876 --> 00:17:34,996 Speaker 2: of taxation. So that from a policy standpoint, we felt 274 00:17:35,156 --> 00:17:37,276 Speaker 2: we could make the argument that this would be a 275 00:17:37,276 --> 00:17:37,796 Speaker 2: good thing. 276 00:17:38,156 --> 00:17:41,396 Speaker 1: So, Chris Christy comes to you and the case interests you, 277 00:17:42,156 --> 00:17:44,676 Speaker 1: how do you decide how to argue it? Like you 278 00:17:44,796 --> 00:17:47,276 Speaker 1: can just kind of take me inside your process. 279 00:17:47,356 --> 00:17:49,796 Speaker 2: Well, I wanted to look for all the issues and 280 00:17:49,996 --> 00:17:53,556 Speaker 2: arguments that we could make. One of them that occurred 281 00:17:53,596 --> 00:17:56,116 Speaker 2: to us that we pushed, but not too hard because 282 00:17:56,156 --> 00:17:59,156 Speaker 2: it wasn't going to It didn't get us anywhere. Is 283 00:17:59,196 --> 00:18:04,116 Speaker 2: that how come New Jersey is being treated differently than Nevada. 284 00:18:04,596 --> 00:18:08,396 Speaker 2: New Jersey is a sovereign state. Nevada is a sovereign state. 285 00:18:09,716 --> 00:18:14,156 Speaker 2: Is does the federal statute give precedents to Nevada for 286 00:18:14,276 --> 00:18:17,996 Speaker 2: conducting an activity? What if the federal government said that 287 00:18:18,316 --> 00:18:22,316 Speaker 2: states can have banks or states can have grocery stores, 288 00:18:23,636 --> 00:18:26,036 Speaker 2: and one state can have them and one state can't. 289 00:18:27,596 --> 00:18:30,716 Speaker 2: So we made an argument that was sort of an 290 00:18:30,756 --> 00:18:35,636 Speaker 2: equal protection issue from the standpoint of states. We also 291 00:18:35,756 --> 00:18:40,956 Speaker 2: made an argument that the legislation was not clear and 292 00:18:41,156 --> 00:18:45,036 Speaker 2: was ambiguous. We were looking for anything like that that 293 00:18:45,076 --> 00:18:47,556 Speaker 2: we could find. But the one that appealed to me 294 00:18:47,916 --> 00:18:52,236 Speaker 2: is that the federal government in this case had the 295 00:18:52,316 --> 00:18:55,876 Speaker 2: power to regulate gambling. It could regulate gambling under the 296 00:18:55,916 --> 00:19:00,596 Speaker 2: Interstate Commerce Clause if it was commerce, and it certainly was, 297 00:19:01,596 --> 00:19:04,956 Speaker 2: but the Congress did not choose to do it that way. 298 00:19:04,996 --> 00:19:09,316 Speaker 2: It said states may not authorize or permit gambling on 299 00:19:09,396 --> 00:19:13,756 Speaker 2: sports So in other words, what Congress was doing was, 300 00:19:13,796 --> 00:19:17,036 Speaker 2: we want to prohibit this activity, but we want the 301 00:19:17,116 --> 00:19:21,356 Speaker 2: states to do it. States will take the responsibility and 302 00:19:21,396 --> 00:19:24,956 Speaker 2: the blame and the credit or the blame for doing it, 303 00:19:24,996 --> 00:19:28,356 Speaker 2: because the federal government stepped aside just demanding that the 304 00:19:28,396 --> 00:19:31,276 Speaker 2: states do it, and the states will spend their money 305 00:19:31,676 --> 00:19:35,836 Speaker 2: to pass a statute and enforce a statute. The response 306 00:19:35,876 --> 00:19:38,836 Speaker 2: to that is, what's wrong with that? Is the federal 307 00:19:38,876 --> 00:19:43,036 Speaker 2: government going to do something, it should take responsibility for it. 308 00:19:43,036 --> 00:19:45,716 Speaker 2: It should pay for the enforcement. It should have to 309 00:19:46,196 --> 00:19:49,476 Speaker 2: have to answer to its citizens for what it has done. 310 00:19:49,716 --> 00:19:52,876 Speaker 2: It shouldn't say we've got nothing to do with that. 311 00:19:52,956 --> 00:19:55,436 Speaker 2: You'll have to go to the people in New Jersey 312 00:19:55,476 --> 00:19:58,836 Speaker 2: and the legislature of New Jersey to do something about it. 313 00:19:58,876 --> 00:20:04,196 Speaker 2: And that seemed to me wrong, and to violate this 314 00:20:04,356 --> 00:20:08,836 Speaker 2: principle that the federal government cannot core states to do 315 00:20:08,876 --> 00:20:11,796 Speaker 2: something thing that the federal government can do itself. 316 00:20:11,476 --> 00:20:13,596 Speaker 1: It seemed to you obviously unconstitutional. 317 00:20:14,276 --> 00:20:17,236 Speaker 2: Well, it seemed to me that we had a strong 318 00:20:17,396 --> 00:20:23,076 Speaker 2: constitutional argument, but that we thought that it was going 319 00:20:23,156 --> 00:20:27,156 Speaker 2: to be very difficult because only two cases in recent 320 00:20:27,316 --> 00:20:32,716 Speaker 2: history in the Supreme Court that had articulated this anti 321 00:20:32,836 --> 00:20:36,836 Speaker 2: commandeering doctrine. That's the way it's been referred to, that 322 00:20:37,396 --> 00:20:43,116 Speaker 2: the federal government can't command or draft or coerce the 323 00:20:43,156 --> 00:20:45,676 Speaker 2: states into doing what it should do. There were only 324 00:20:45,716 --> 00:20:51,596 Speaker 2: two Supreme Court cases that had articulated that principle in 325 00:20:51,716 --> 00:20:54,716 Speaker 2: recent years, and our opponents and everybody else said, well, 326 00:20:54,756 --> 00:20:58,236 Speaker 2: they're never going to buy that. That's just too remote, 327 00:20:58,596 --> 00:21:02,796 Speaker 2: it's too attenuated a constitutional argument. You're never going to succeed. 328 00:21:03,796 --> 00:21:06,436 Speaker 2: But that's how we had to succeed. And we lost 329 00:21:07,076 --> 00:21:09,596 Speaker 2: three times in the district court and at least twice 330 00:21:09,636 --> 00:21:12,916 Speaker 2: in the third Circuit. So we had a fight all 331 00:21:12,956 --> 00:21:17,356 Speaker 2: the way, and I think until we finally won, no 332 00:21:17,396 --> 00:21:22,316 Speaker 2: one thought, not no one but people, the smart people 333 00:21:23,116 --> 00:21:24,636 Speaker 2: did not think we were going to win. 334 00:21:26,396 --> 00:21:28,476 Speaker 1: If I were to ask you to handicap the case 335 00:21:28,516 --> 00:21:30,956 Speaker 1: when you took it, what kind of odds would you 336 00:21:31,036 --> 00:21:32,716 Speaker 1: giving yourself a succeed? 337 00:21:32,716 --> 00:21:36,716 Speaker 2: Oh, you wanted me to bet on my own case. Well, actually, 338 00:21:36,716 --> 00:21:39,556 Speaker 2: what I should have done, Michael Is asked for a 339 00:21:39,636 --> 00:21:45,436 Speaker 2: percentage of the amount bet as a result of our case. 340 00:21:45,476 --> 00:21:48,436 Speaker 2: If we won, I should have developed some kind of 341 00:21:48,516 --> 00:21:49,356 Speaker 2: contingent fee. 342 00:21:49,556 --> 00:21:52,196 Speaker 1: You can't see everything coming I would have. 343 00:21:52,156 --> 00:21:55,316 Speaker 2: Said, I think we have a good chance of getting there. 344 00:21:55,396 --> 00:21:58,636 Speaker 2: We have a solid principle. I probably wouldn't have put 345 00:21:58,636 --> 00:22:01,516 Speaker 2: a number on it, but we have a solid principle. 346 00:22:01,796 --> 00:22:04,436 Speaker 2: But it's going to be very difficult. I've had several 347 00:22:04,476 --> 00:22:08,516 Speaker 2: cases in my career where we've convinced the Supreme Court 348 00:22:09,196 --> 00:22:12,916 Speaker 2: overturn an Act of Congress. That is very rare. It's 349 00:22:13,116 --> 00:22:16,636 Speaker 2: very difficult, and I would tell the client it's a 350 00:22:16,676 --> 00:22:22,116 Speaker 2: long shot, and the odds are strenuously against us, but 351 00:22:22,876 --> 00:22:26,076 Speaker 2: you are right on principle, and we ought to keep 352 00:22:26,116 --> 00:22:29,476 Speaker 2: pursuing it. Now, Governor Christie, to his great credit, after 353 00:22:29,516 --> 00:22:32,236 Speaker 2: we lost and then we lost, and then we lost 354 00:22:32,436 --> 00:22:38,156 Speaker 2: and so forth, and it was costing resources and political 355 00:22:38,236 --> 00:22:41,156 Speaker 2: capital to do this, but he's stuck with us. I 356 00:22:41,276 --> 00:22:43,796 Speaker 2: kept thinking we could get to the Supreme Court, we 357 00:22:44,356 --> 00:22:47,476 Speaker 2: could win, and of course we did at the end 358 00:22:47,476 --> 00:22:49,916 Speaker 2: of the day. But it took a lot of persistence 359 00:22:50,756 --> 00:22:54,236 Speaker 2: and faith by Governor Christie and members of the New 360 00:22:54,276 --> 00:23:00,356 Speaker 2: Jersey legislature that stuck with us. 361 00:23:01,476 --> 00:23:18,836 Speaker 1: We're going to take a quick break. I'm back with 362 00:23:18,916 --> 00:23:22,036 Speaker 1: constitutional lawyer Ted Olson talking about his long battle on 363 00:23:22,076 --> 00:23:25,196 Speaker 1: behalf of the state of New Jersey. 364 00:23:25,236 --> 00:23:29,236 Speaker 2: Every time you're representing a government, it's a little bit 365 00:23:29,236 --> 00:23:33,996 Speaker 2: different than representing a private party like a company like 366 00:23:34,116 --> 00:23:37,956 Speaker 2: Microsoft or Apple or something like that. A government has 367 00:23:38,396 --> 00:23:43,036 Speaker 2: budget issues, it has people criticizing the way money is spent, 368 00:23:43,476 --> 00:23:46,396 Speaker 2: It has limited amounts of money. The governor has to 369 00:23:46,436 --> 00:23:51,356 Speaker 2: explain why he's spending state resources to handle an argument 370 00:23:51,436 --> 00:23:54,156 Speaker 2: that many people think cannot be successful. 371 00:23:54,556 --> 00:23:58,116 Speaker 1: By the time you come to challenge this law, it's 372 00:23:58,156 --> 00:24:03,076 Speaker 1: twenty years old. How unusual is it for a law 373 00:24:03,116 --> 00:24:07,116 Speaker 1: to sit there for that long before it's challenged and 374 00:24:07,436 --> 00:24:11,196 Speaker 1: it actually is then overturned. 375 00:24:12,356 --> 00:24:16,476 Speaker 2: Well, it's very unusual. In the first place, this law 376 00:24:16,596 --> 00:24:19,996 Speaker 2: was passed something like unanimously. I can't remember the numbers, 377 00:24:20,676 --> 00:24:28,196 Speaker 2: but it was very, very popular when passed. The desire 378 00:24:28,276 --> 00:24:33,436 Speaker 2: to pass this statute was perceived as doing good to 379 00:24:33,476 --> 00:24:37,676 Speaker 2: stop people from betting on sports, stop the potential corruption 380 00:24:37,836 --> 00:24:42,036 Speaker 2: of athletes and the temptations that might be put before 381 00:24:42,116 --> 00:24:46,316 Speaker 2: them through money. Everybody remembers the Black Sox. You probably 382 00:24:46,356 --> 00:24:50,436 Speaker 2: know that better than anybody, and so that's the specter. 383 00:24:50,916 --> 00:24:53,556 Speaker 2: And it did set around for twenty years. One of 384 00:24:53,556 --> 00:24:56,316 Speaker 2: the things that our opponents did say, well, that's been 385 00:24:56,356 --> 00:24:58,836 Speaker 2: around for twenty years nobody challenged it. Why is the 386 00:24:58,876 --> 00:25:01,596 Speaker 2: Supreme Court going to get involved in that now? So 387 00:25:01,676 --> 00:25:07,276 Speaker 2: you have the impetus or the inertia of challenging something 388 00:25:07,356 --> 00:25:12,076 Speaker 2: that has sat there very popular, no one's challenged it before. 389 00:25:12,356 --> 00:25:15,556 Speaker 2: We're making an argument that no one has made against 390 00:25:15,556 --> 00:25:19,996 Speaker 2: this particular federal statute. So yes, it's a very significant 391 00:25:20,116 --> 00:25:23,116 Speaker 2: uphill climb, and it's very rare that it could be 392 00:25:23,156 --> 00:25:24,836 Speaker 2: done and done successfully. 393 00:25:25,716 --> 00:25:28,916 Speaker 1: How did you prepare for the argument in twenty eighteen? 394 00:25:30,476 --> 00:25:33,356 Speaker 2: I prepare pretty much the same way, the way everybody 395 00:25:33,436 --> 00:25:37,996 Speaker 2: should prepare. I read the briefs carefully. I read the 396 00:25:38,036 --> 00:25:40,996 Speaker 2: cases underlying the briefs. I look at the tradition and 397 00:25:41,156 --> 00:25:45,076 Speaker 2: history of the constitutional provisions that might be involved. I 398 00:25:45,116 --> 00:25:49,556 Speaker 2: look at particular way that these issues have been approached 399 00:25:49,556 --> 00:25:54,516 Speaker 2: by the justices. I asked my colleagues to prepare an 400 00:25:54,556 --> 00:25:58,676 Speaker 2: analysis of each of the justices with respect to these 401 00:25:58,716 --> 00:26:05,276 Speaker 2: particular issues. I participate in moot courts where we as 402 00:26:05,356 --> 00:26:11,276 Speaker 2: symbol five or six or more very vary astute constitutional lawyers, 403 00:26:12,116 --> 00:26:15,756 Speaker 2: sometimes in my firm, sometimes outside my firm, to ask 404 00:26:15,836 --> 00:26:17,996 Speaker 2: questions for about an hour and a half. Put me 405 00:26:18,036 --> 00:26:21,636 Speaker 2: on the spot so that I can anticipate what the 406 00:26:21,716 --> 00:26:27,036 Speaker 2: justices might ask and make my answers more crisp, and 407 00:26:27,116 --> 00:26:30,356 Speaker 2: avoid traps that you might not think of if you 408 00:26:30,476 --> 00:26:36,116 Speaker 2: don't expose yourself to that kind of competitive arena. So 409 00:26:36,196 --> 00:26:37,956 Speaker 2: I try to do all those things. I try to 410 00:26:37,996 --> 00:26:41,476 Speaker 2: write my own questions out. I try to synthesize the 411 00:26:41,476 --> 00:26:45,356 Speaker 2: case in a sentence or two. I believe that if 412 00:26:45,356 --> 00:26:49,476 Speaker 2: you can't explain it to sophomore in high school in 413 00:26:49,516 --> 00:26:52,396 Speaker 2: a sentence or two, then you've got to go back 414 00:26:52,436 --> 00:26:54,596 Speaker 2: to work. You've got to make it. You've got to 415 00:26:54,596 --> 00:26:57,756 Speaker 2: make it very simple and straightforward, and you have to 416 00:26:57,796 --> 00:27:01,436 Speaker 2: make your principle appealing. And that's why I tell people, 417 00:27:01,836 --> 00:27:07,036 Speaker 2: think of the prism through which you want the justices 418 00:27:07,116 --> 00:27:10,676 Speaker 2: to perceive this case, and so you can keep going 419 00:27:10,796 --> 00:27:14,756 Speaker 2: back to that root principle when you get asked questions. 420 00:27:15,036 --> 00:27:18,036 Speaker 1: Do this for me. Sum up in a couple of sentences, 421 00:27:18,196 --> 00:27:20,236 Speaker 1: your opponent's argument and your argument. 422 00:27:21,276 --> 00:27:24,156 Speaker 2: Well, our opponent's argument, I'll do that first is that 423 00:27:24,756 --> 00:27:28,036 Speaker 2: sports betting is bad. It tends to corrupt the youth, 424 00:27:28,516 --> 00:27:34,516 Speaker 2: it tends to put at risk the integrity of organized sports, 425 00:27:35,516 --> 00:27:38,476 Speaker 2: and it shouldn't be done. And Nevada was allowed to 426 00:27:38,556 --> 00:27:41,916 Speaker 2: do that because of historical reasons that had already started. 427 00:27:42,676 --> 00:27:44,956 Speaker 2: The argument that I would have made is that yes, 428 00:27:45,116 --> 00:27:50,636 Speaker 2: Congress can do that. Congress can take the responsibility of 429 00:27:50,916 --> 00:27:55,196 Speaker 2: prohibiting or regulating betting on sports if it wants to. 430 00:27:55,316 --> 00:27:58,636 Speaker 2: It certainly can, but it can't tell the state of 431 00:27:58,676 --> 00:28:01,916 Speaker 2: California or the state of New Jersey. You do it, 432 00:28:02,516 --> 00:28:06,596 Speaker 2: you take responsibility for it, you pay for enforcement, you 433 00:28:06,716 --> 00:28:09,876 Speaker 2: supervise it, you do what we could do, so that 434 00:28:09,876 --> 00:28:11,876 Speaker 2: we can stand back and say, well, it's not up 435 00:28:11,876 --> 00:28:15,996 Speaker 2: to us, so that the principle is that states have 436 00:28:16,116 --> 00:28:20,036 Speaker 2: the power not to be regulated as states by the 437 00:28:20,036 --> 00:28:22,596 Speaker 2: federal government. Now I could probably and I would hope 438 00:28:22,636 --> 00:28:24,636 Speaker 2: to be able to make that a little bit simpler. 439 00:28:24,676 --> 00:28:27,516 Speaker 1: That's all right. Did you when you first saw the 440 00:28:27,596 --> 00:28:30,116 Speaker 1: laws it was written, did it strike you as odd 441 00:28:31,516 --> 00:28:35,076 Speaker 1: that it instead of just banning sports gambling, it banned 442 00:28:35,076 --> 00:28:37,196 Speaker 1: states from changing their sports gambling laws. 443 00:28:37,316 --> 00:28:41,796 Speaker 2: It is an unusual statute because it does it doesn't 444 00:28:41,916 --> 00:28:46,756 Speaker 2: do what Congress could do. It makes the states do it. 445 00:28:46,836 --> 00:28:50,476 Speaker 2: And I did see this right away that why that's unusual. 446 00:28:50,916 --> 00:28:56,756 Speaker 2: Congress can regulate marijuana, it can regulate trucking industries that 447 00:28:56,836 --> 00:28:59,076 Speaker 2: can do all those things, but it can't tell the 448 00:28:59,196 --> 00:29:03,396 Speaker 2: states you do it. I hate to be cynical, but 449 00:29:03,436 --> 00:29:05,876 Speaker 2: Congress loves to do this sort of thing. It loves 450 00:29:05,916 --> 00:29:09,916 Speaker 2: to take positions that everybody will applaud it for taking, 451 00:29:10,436 --> 00:29:13,916 Speaker 2: but then not have any responsibility for doing it. They 452 00:29:13,956 --> 00:29:17,516 Speaker 2: could be against sports betting, but then when someone said 453 00:29:17,796 --> 00:29:20,276 Speaker 2: we want to bet on sports, don't come to us, 454 00:29:20,796 --> 00:29:24,396 Speaker 2: go to the legislature in Connecticut or whatever. They're the 455 00:29:24,436 --> 00:29:28,036 Speaker 2: ones that are prohibited it. So Congress loves to do 456 00:29:28,076 --> 00:29:31,996 Speaker 2: this sort of thing, and if you follow them, they 457 00:29:32,036 --> 00:29:36,036 Speaker 2: do it all the time. They pass statutes with gaping 458 00:29:36,076 --> 00:29:40,356 Speaker 2: holes of discretion, then expect administrative agencies to do it, 459 00:29:40,716 --> 00:29:42,516 Speaker 2: and when the agency does it in a way that 460 00:29:42,556 --> 00:29:45,756 Speaker 2: they don't like, then they scream and holler and say, 461 00:29:45,876 --> 00:29:50,076 Speaker 2: see those out of control bureaucrats. Blah blah blah. But 462 00:29:50,476 --> 00:29:53,036 Speaker 2: the motivating factor of members of Congress is to get 463 00:29:53,076 --> 00:29:56,876 Speaker 2: re elected. So if they can take a popular position 464 00:29:57,716 --> 00:30:00,196 Speaker 2: and yet not have responsibility for it, they'll do it 465 00:30:00,236 --> 00:30:00,796 Speaker 2: every time. 466 00:30:01,236 --> 00:30:05,396 Speaker 1: Were you surprised by what's happened since you won? Were 467 00:30:05,396 --> 00:30:09,756 Speaker 1: you surprised by the explosion in sports gambling? I'm not. 468 00:30:11,116 --> 00:30:14,516 Speaker 2: I think that in some respects it's good. In some 469 00:30:14,596 --> 00:30:17,996 Speaker 2: respects it may not be. There's an awful lot of 470 00:30:18,036 --> 00:30:21,116 Speaker 2: it taking place. I am a little surprised that you 471 00:30:21,156 --> 00:30:25,796 Speaker 2: can now bet on particular plays during the course of 472 00:30:25,796 --> 00:30:28,916 Speaker 2: a game. I was at the Super Bowl somebody's home 473 00:30:28,996 --> 00:30:32,036 Speaker 2: during the Super Bowl a year or so ago, and 474 00:30:32,196 --> 00:30:34,436 Speaker 2: one of my neighbors was there and that there's little 475 00:30:34,436 --> 00:30:37,356 Speaker 2: computer in his hander is his cell phone, and he said, 476 00:30:37,396 --> 00:30:42,836 Speaker 2: I just bet that somewhere during some time during this game, 477 00:30:42,956 --> 00:30:45,796 Speaker 2: someone will attempt to hit a field goal and it 478 00:30:45,836 --> 00:30:49,316 Speaker 2: will hit the goalposts. And I said, Jesus Christ, you 479 00:30:49,356 --> 00:30:51,516 Speaker 2: know who would bet on something like that? And then 480 00:30:51,556 --> 00:30:55,636 Speaker 2: about five minutes later it happened. I never would have 481 00:30:55,676 --> 00:30:58,316 Speaker 2: thought that you would be able to bet on that 482 00:30:58,876 --> 00:31:02,596 Speaker 2: degree of granular nature of the of the contest, but 483 00:31:03,156 --> 00:31:06,876 Speaker 2: it has happened. And you know, people are very, very creative, 484 00:31:07,796 --> 00:31:10,796 Speaker 2: and people love thet they love to well so, and 485 00:31:10,836 --> 00:31:14,556 Speaker 2: so we'll have six free throws, or make only four 486 00:31:14,596 --> 00:31:17,356 Speaker 2: of them. You know, anything that people can bet on, 487 00:31:17,436 --> 00:31:17,876 Speaker 2: they will. 488 00:31:19,076 --> 00:31:21,956 Speaker 1: When that person bet on a field goal hitting the goalpost, 489 00:31:21,996 --> 00:31:23,476 Speaker 1: did you turn to him and say, do you know 490 00:31:23,516 --> 00:31:24,236 Speaker 1: why you can do. 491 00:31:24,236 --> 00:31:29,996 Speaker 2: This No, he knew, he knew, he knew it was 492 00:31:30,556 --> 00:31:32,756 Speaker 2: he knew I had been involved in this case. My 493 00:31:32,836 --> 00:31:33,396 Speaker 2: neighbors know. 494 00:31:35,076 --> 00:31:37,356 Speaker 1: So we're going to let you go. But before we 495 00:31:37,436 --> 00:31:39,396 Speaker 1: let you go, how many cases have you argued in 496 00:31:39,476 --> 00:31:40,476 Speaker 1: front of the Supreme Court? 497 00:31:40,876 --> 00:31:41,596 Speaker 2: Sixty five? 498 00:31:42,316 --> 00:31:44,236 Speaker 1: Where does that put you in the all time ranking? 499 00:31:45,836 --> 00:31:49,876 Speaker 2: Well, it depends. The Supreme Court used to take one 500 00:31:49,956 --> 00:31:54,036 Speaker 2: hundred and fifty cases a year in the eighties, and 501 00:31:54,116 --> 00:31:57,316 Speaker 2: more than that in a couple of generations before that, 502 00:31:57,636 --> 00:32:00,756 Speaker 2: so there are a lot more opportunities. Secondly, I was 503 00:32:00,796 --> 00:32:03,596 Speaker 2: Solicitor General for three and a half years, and so 504 00:32:03,676 --> 00:32:07,076 Speaker 2: you get to argue. I was arguing about six seven 505 00:32:07,316 --> 00:32:09,996 Speaker 2: eight cases a year as Solicitor General. There are some 506 00:32:10,036 --> 00:32:13,196 Speaker 2: people in the Solicitor General's office that have been there 507 00:32:13,236 --> 00:32:17,156 Speaker 2: for forty years and they have a lot of more 508 00:32:17,196 --> 00:32:19,956 Speaker 2: cases that they've argued than me. And there's a couple 509 00:32:19,956 --> 00:32:23,836 Speaker 2: of lawyers in private practice that have argued more cases 510 00:32:23,876 --> 00:32:27,116 Speaker 2: than that, but they also spent a lot of time 511 00:32:27,156 --> 00:32:30,436 Speaker 2: in the Solicitor General's office to get to those numbers. 512 00:32:31,236 --> 00:32:33,596 Speaker 1: I really appreciate your time, and I hope one day 513 00:32:33,596 --> 00:32:34,556 Speaker 1: I get to meet you in person. 514 00:32:35,356 --> 00:32:38,196 Speaker 2: Well, I look forward to that absolutely. 515 00:32:41,716 --> 00:32:43,556 Speaker 1: Now. As it happened, I did get to meet Ted 516 00:32:43,556 --> 00:32:46,196 Speaker 1: Olson in person just a few weeks after this conversation. 517 00:32:47,076 --> 00:32:50,076 Speaker 1: He took me to dinner in Washington, d C. And 518 00:32:50,116 --> 00:32:53,156 Speaker 1: he was a delight in person. I totally enjoyed his company. 519 00:32:53,276 --> 00:32:55,316 Speaker 1: I thought I'd made a new friend. It's sad to 520 00:32:55,356 --> 00:32:58,356 Speaker 1: lose him. Whether or not you agree with his arguments, 521 00:32:58,636 --> 00:33:01,836 Speaker 1: it's clear his legacy will outlive him for sure, if 522 00:33:01,876 --> 00:33:04,276 Speaker 1: only because every time you place a bet on a game, 523 00:33:04,756 --> 00:33:07,676 Speaker 1: there's a little piece of Ted Olson in there. Thanks 524 00:33:07,676 --> 00:33:10,116 Speaker 1: again for listening to this special Bone episode. We'll be 525 00:33:10,156 --> 00:33:14,276 Speaker 1: back to our regular episodes next week. Against the Rules 526 00:33:14,316 --> 00:33:17,396 Speaker 1: is written and hosted by me Michael Lewis and produced 527 00:33:17,396 --> 00:33:22,436 Speaker 1: by Lydia gene Kott, Catherine Gerardeau, and Ariella Markowitz. Our 528 00:33:22,596 --> 00:33:27,836 Speaker 1: editor is Julia Barton. Our engineer is Sarah Bruguer. Against 529 00:33:27,876 --> 00:33:30,916 Speaker 1: the Rules is a production of Pushkin Industries. To find 530 00:33:30,916 --> 00:33:35,756 Speaker 1: more Pushkin podcasts, listen on the iHeartRadio app, Apple Podcasts, 531 00:33:36,196 --> 00:33:39,276 Speaker 1: or wherever you listen to podcasts, and if you'd like 532 00:33:39,356 --> 00:33:42,716 Speaker 1: to listen to ad free and learn about other exclusive offerings, 533 00:33:43,156 --> 00:33:45,996 Speaker 1: don't forget to sign up for a Pushkin Plus subscription 534 00:33:46,396 --> 00:33:50,316 Speaker 1: at pushkin dot fm, slash Plus, or on our Apple 535 00:33:50,356 --> 00:33:54,676 Speaker 1: Show page.