Speaker 1: Pushkin. Hey there, Michael lewis here. I'm dropping into the
Speaker 1: feed today with some sad news. One of the voices
Speaker 1: you may have heard if you listen to our third
Speaker 1: episode this season is no longer with us. The constitutional
Speaker 1: lawyer Ted Olsen. He died November the thirteenth in Virginia
Speaker 1: at the age of eighty four. Olson argued the case
Speaker 1: Murphy versus the NCAA that led to the legalization of
Speaker 1: sports gambling in the United States, but his career as
Speaker 1: a lawyer has been about so much more than that.
Speaker 1: For example, he argued the case that allowed same sex
Speaker 1: couples to get married. He defended the rights of Dreamers,
Speaker 1: people brought to this country undocumented as children. He also
Speaker 1: argued for a lot of Republican causes, including the case
Speaker 1: that got George H. W. Bush declared the winner of
Speaker 1: the two thousand presidential election, and he later served as
Speaker 1: US Solicitor under Bush. Ted Olson was involved in the
Speaker 1: Federalist Society, the largely conservative legal movement that has shaped
Speaker 1: the Supreme Court for decades to come. He was a
Speaker 1: complicated and interesting character in one of the most brilliant
Speaker 1: legal minds of our era, and it was an honor
Speaker 1: to get to talk with him. I wanted you to
Speaker 1: hear more of my original conversation with him. Because we
Speaker 1: only use little snippets in our episode. Think of this
Speaker 1: as a kind of small memorial. We'll be back with
Speaker 1: our regular episodes next week. But meanwhile, here's me with
Speaker 1: Ted Olson back in June. Do you remember the first
Speaker 1: case you argued before the Supreme Court.
Speaker 2: I do. It was while I was an assistant Attorney General.
Speaker 2: It was in nineteen eighty three. It is a practice
Speaker 2: in the Justice Department for the Solicitor General, who controlled
Speaker 2: litigation by the United States and the Supreme Court, to
Speaker 2: allow any of the assistant attorneys general there are six
Speaker 2: or eight of them, to argue one case during their
Speaker 2: tenure in the Supreme Court, and the Solicitor General at
Speaker 2: the time, whose name was rex Lee, decided that a
Speaker 2: separation of powers case was appropriate for me. I was
Speaker 2: very anxious to take on a case in the Supreme Court,
Speaker 2: and he got a case called Garcia versus San Antonio Transit,
Speaker 2: which involved the separation of powers vertically between powers of
Speaker 2: the states and power of the federal government, which of
Speaker 2: course comes up again in this Murphy case. It was
Speaker 2: whether the states running their municipal transit systems had to
Speaker 2: follow federal statutes with respect to wage controls, hours, overtime,
Speaker 2: and fair labor standards. And the argument that Tonia was
Speaker 2: making was that they had the right to set those
Speaker 2: standards without interference by the federal government. The federal government
Speaker 2: was saying, oh, no, we have the power to impose
Speaker 2: those standards on you in your employment employer capacity.
Speaker 1: So you were representing the federal government.
Speaker 2: Yes. I was an assistant Attorney General at the time,
Speaker 2: So yes, I was representing the federal government in that case.
Speaker 1: How did you feel about that case?
Speaker 2: I wanted to make the case that the federal government
Speaker 2: had the power to impose these requirements on employers in
Speaker 2: the commercial context, upon states and communities, and so very
Speaker 2: enthusiastic about arguing it. It turned out that the Supreme
Speaker 2: Court thought the case was so important that they wanted it.
Speaker 2: They set it for reargument for the following term and
Speaker 2: specifically asked a further briefing on the question whether or
Speaker 2: not the Tenth Amendment protect to states from that kind
Speaker 2: of interference by the federal government or not.
Speaker 1: Did you win?
Speaker 2: The federal government won that case, and.
Speaker 1: So you said you were anxious to argue something before
Speaker 1: the Supreme Court. Did you mean anxious or eager?
Speaker 2: Eager? I was anxious too.
Speaker 1: What did it feel like? I'm just curious, like if
Speaker 1: you could take us back to the first time you're
Speaker 1: standing up before nine justices and having to make a case, well.
Speaker 2: It is a thrilling and terrifying experience. The justices, of course,
Speaker 2: are all very learned in the subjects that you're arguing
Speaker 2: for them. In this case, there was a constitutional question.
Speaker 2: They were very familiar with it. It was a subject
Speaker 2: that Justice Renquist, before he was Chief Justice, was very
Speaker 2: interested in. And you don't dare make a mistake, especially
Speaker 2: if you're representing the federal government. Everything that you say
Speaker 2: is the standard, is the policy of the United State government.
Speaker 2: That's a very heavy responsibility, so you have to be
Speaker 2: very very well prepared. Each of the nine justices would
Speaker 2: interrupt and ask questions, interrupt your train of thought, interrupt
Speaker 2: your answer to the other justices questions. So it's a
Speaker 2: very dynamic situation and you have to be very well prepared.
Speaker 2: I was thrilled to be there, and I was very
Speaker 2: anxious and eager to do it right.
Speaker 1: How's it different from just arguing a normal case.
Speaker 2: Well, in normal case, you might be talking to one
Speaker 2: judge or one justice. This was nine justices. Each have
Speaker 2: their own history, Each have their own background with respect
Speaker 2: to constitutional principles or whatever it is that you're arguing,
Speaker 2: and they are very independent. They're fiercely independent. You can't
Speaker 2: assume that someone is a liberal or a conservative justice,
Speaker 2: that they might come out a certain way. You can
Speaker 2: look at decisions they've made, or opinions they've written, concurring
Speaker 2: opinions or dissenting opinions or majority opinions. You can track
Speaker 2: their record. And that's what I do. Whenever I argue
Speaker 2: a case in the Supreme Court, I go back and
Speaker 2: I have some of my associates help me with this.
Speaker 2: Take a look at each justice and the various issues
Speaker 2: in the case. Frequently there are more than one issue,
Speaker 2: and how would they rule, how would they think about
Speaker 2: each one of these issues, and the inter relationship between
Speaker 2: those issues and the inter relationship between themselves and the
Speaker 2: other justices. A justice might ask you what appears to
Speaker 2: be a softball question in the Supreme Court, and you
Speaker 2: have to be careful answering that kind of a question
Speaker 2: because you might please the justice who asked that question,
Speaker 2: but alienate eight others. So it's a very tricky situation.
Speaker 1: Do you feel like between that first time you stood
Speaker 1: up to argue a case and by the time you're
Speaker 1: standing up to ar you Murphy, that you'd improved?
Speaker 2: Well, I hope i'd improved.
Speaker 1: Like if I was watching the if I was watching
Speaker 1: the young Tedduhlson versus the middle aged tedtdles and in front,
Speaker 1: up and up in front of the Supreme Court, what
Speaker 1: difference is what I notice?
Speaker 2: Well, I'm not sure. I haven't looked at back at
Speaker 2: it that way. I'll tell you this, every time I
Speaker 2: argue a case, no matter where it is, what level
Speaker 2: of the court is, you want to be better than
Speaker 2: the time before. You learn from your mistakes. We all
Speaker 2: make them, and you can watch other people make mistakes
Speaker 2: or do things that are they're dumb, or you might
Speaker 2: walk into something that you hadn't prepared for. That'll tell
Speaker 2: you have to be better prepared next time. By the
Speaker 2: time we argued the Murphy case, I had argued it
Speaker 2: three or four times in federal district court and two
Speaker 2: or three times in the United States Court of Appeals
Speaker 2: for the Third Circuit. So by then the issues were
Speaker 2: something that I'd gone over before, and we had very,
Speaker 2: very forceful and strong capable opponents. Paul Clement, who argued
Speaker 2: against me as an absolutely fabulous lawyer the United States,
Speaker 2: was also in that case arguing against me with someone
Speaker 2: from the Solicitener General's office. So the case was very
Speaker 2: very well presented, and the justices knew what the issues were.
Speaker 2: This issue of the United States federal government forcing itself
Speaker 2: on states was an issue that they had heard before,
Speaker 2: although not very often, so it took a lot of preparation.
Speaker 2: Whether I was any better, I hope I wouldn't have
Speaker 2: made as many mistakes as I might have made that
Speaker 2: first time.
Speaker 1: Can you give me an example of a mistake you
Speaker 1: made in your career that you learn from?
Speaker 2: There are ours things that you learn from arguments. We
Speaker 2: prepare so thoroughly that we try to avoid those kind
Speaker 2: of mistakes. Now, occasionally there's some of the justices that
Speaker 2: used to be on the Supreme Court would ask questions
Speaker 2: completely out of left field that you could possibly anticipate.
Speaker 2: And I've had questions from the current justices that I
Speaker 2: thought were not very well conceived. And you have to
Speaker 2: be dance on your feet. The court is allowing a
Speaker 2: little bit more time now for oral argument. But for
Speaker 2: the early part of my career, most of my career,
Speaker 2: the Supreme Court allowed thirty minutes per side. That's it.
Speaker 2: And when your time was up, your time was up,
Speaker 2: and you had to cram your argument, answers to the questions,
Speaker 2: your theme into that thirty minutes and get it all done.
Speaker 1: We'll be right back with more of my conversation with
Speaker 1: ted Olsen. I'm back with Ted Olsen. So I've never
Speaker 1: been inside the Supreme Court. If you if you can
Speaker 1: just paint a picture for me the first time you
Speaker 1: stand up, What does it? What does it look like?
Speaker 2: You're standing at a podium looking at the Supreme Court.
Speaker 2: They are arrayed all night of them in something close
Speaker 2: to an arc, so that the justices and they're arranged
Speaker 2: by and by in order of seniority. The chief Justice
Speaker 2: is in the middle, the senior most colleague on the
Speaker 2: court is to his right, the next on his left,
Speaker 2: and on down to the most junior justices. Now, it's
Speaker 2: enough of a curve that if you're looking at one
Speaker 2: of the justices at one end of the court, one
Speaker 2: end physically of the court. You might not have in
Speaker 2: your eye attention uh the other justices, so it helps
Speaker 2: if you've done it often enough that you recognize voices.
Speaker 2: So they are very very close the chief Justices, probably
Speaker 2: six seven to eight feet from the from the podium
Speaker 2: where you're standing. You stand still, you don't move about,
Speaker 2: and you stand up straight and address the court as
Speaker 2: much as you can. The press is arrayed to your left,
Speaker 2: with some seats that are set aside for the press
Speaker 2: that are perpendicular to where you're standing. In perpendicular to
Speaker 2: the bench behind you are members of the of the
Speaker 2: United States Supreme Court bar probably a couple hundred, and
Speaker 2: then behind them are members of the general public. And
Speaker 2: over to your right are a group of benches reserved
Speaker 2: for relatives and friends of the justices, and behind them
Speaker 2: some of the clerks. It is not a big space,
Speaker 2: not very many people can get in there. The acoustics
Speaker 2: are very very good so that you can hear your voice,
Speaker 2: and my voice fortunately carries quite well. Some of the
Speaker 2: justices speak more softly. Justice Ginsburg was well known to
Speaker 2: speak in a very soft voice and punctuate her speech
Speaker 2: with pauses, so sometimes it was hard to hear what
Speaker 2: she was asking, and sometimes it was difficult to know
Speaker 2: when she was done with the point and you didn't
Speaker 2: want to interrupt, well, she was still about to finish
Speaker 2: a sentence or a question. So it's not easy, but
Speaker 2: it is something that you have to learn and practice
Speaker 2: and become familiar with the justices what their style is.
Speaker 2: Right now, the Chief Justice Roberts is allowing more time
Speaker 2: for argument, so some of these arguments have gone on
Speaker 2: for a couple of hours.
Speaker 1: I'm curious, like, what's your intellectual history with states' rights
Speaker 1: to what do you date your interest in the subject
Speaker 1: of what the federal government should can do and what
Speaker 1: the states should be allowed to.
Speaker 2: Well, that's a difficult question because as it depends upon
Speaker 2: the context, it would be for me it would be
Speaker 2: something that what's the case, what's the issue, what are
Speaker 2: the merits, and what kind of constitutional questions does it raise.
Speaker 2: We have a system of government, as you know, that's
Speaker 2: quite different than systems of government in other countries. We
Speaker 2: have dual in a sense jurisdictions. We have separation of
Speaker 2: powers at the federal level, and we have federalism. States
Speaker 2: are the Constitution says we the people, the Congress, and
Speaker 2: the Constitution allows states to regulate people, it doesn't allow
Speaker 2: it allows Congress to regulate people, doesn't allow Congress to
Speaker 2: regulate states. So there's a delicate balance between what should
Speaker 2: be done and can be done at the local level,
Speaker 2: what the Constitution allocates to Congress to be able to do,
Speaker 2: and where there's space in between.
Speaker 1: So let's talk about the Murphy case. How do you
Speaker 1: decide whether to take on a case? Are you looking
Speaker 1: for whether this has constitutional implications right from the start.
Speaker 2: Well, a lot of it comes to us. We're sitting
Speaker 2: here waiting for clients to come to us and bring
Speaker 2: us difficult problems. I was contacted by one of my
Speaker 2: partners who was very close to Governor Christie. He wanted
Speaker 2: to reinvigorate Atlantic City by allowing Atlantic City to take
Speaker 2: the kind of gambling gaming opportunities that Nevada was doing
Speaker 2: regularly and day in and day out. Atlantic City was
Speaker 2: not thriving, it was suffering, and he felt that if
Speaker 2: we could just have sports betting in there, we would
Speaker 2: help the economy of New Jersey, and that was his goal.
Speaker 2: So he felt, is there a way to challenge the
Speaker 2: constitutionality of that statute? And if there is, what do
Speaker 2: you think of our chances of prevailing. So this was
Speaker 2: just the kind of case that I have always loved,
Speaker 2: a great challenge. It's very rare that you have an
Speaker 2: opportunity to challenge the constitutionality of an Act of Congress
Speaker 2: and seek a court to overturn an Act of Congress
Speaker 2: on constitutional grounds. This was one where there was not
Speaker 2: much precedent. If you've read the briefs, you probably noticed
Speaker 2: that we were opposed by the United States, a National
Speaker 2: Football League, Organized Baseball, the National Basketball Association, the NC
Speaker 2: two AA, just about everyone. We had opposition from it
Speaker 2: from the very beginning. So this was a major legal challenge,
Speaker 2: calling on perseverance and creativity to figure out the arguments
Speaker 2: that could be made to ask Congress to overturn I mean,
Speaker 2: ask the Supreme Court to overturn an act that had
Speaker 2: been very, very popular when it passed, and most people
Speaker 2: felt that it was the right thing that states not
Speaker 2: engage in state and sports betting. So we had lots
Speaker 2: of challenges.
Speaker 1: Did you have any feeling about sports betting at the time.
Speaker 2: I didn't. I didn't have a strong feeling one way
Speaker 2: or the other. Uh during the course of the litigation,
Speaker 2: we knew and we learned that sports betting was taking
Speaker 2: place all over the country. It was legal in the
Speaker 2: state of Nevada, but all over the country people were
Speaker 2: betting on sports, their local teams. All kinds of betting
Speaker 2: was taking place. It was a multi billion dollar industry.
Speaker 2: But it was all unlawful. It was all underground. It
Speaker 2: wasn't regulated because it was illegal, uh, and people could
Speaker 2: be cheated and all kinds of unsavory activities could take
Speaker 2: place because it was taking place. So what we were asking,
Speaker 2: and we wanted to phrase it this way to the
Speaker 2: court and to the courts, is this is something that
Speaker 2: is aside from the legal issues. Now, this is something
Speaker 2: that is happening. If it can be legalized, it can
Speaker 2: be regulated. You can put accountants in, you can require
Speaker 2: the operators to be transparent and to be subject to
Speaker 2: rules and regulations, and of course to a reasonable amount
Speaker 2: of taxation. So that from a policy standpoint, we felt
Speaker 2: we could make the argument that this would be a
Speaker 2: good thing.
Speaker 1: So, Chris Christy comes to you and the case interests you,
Speaker 1: how do you decide how to argue it? Like you
Speaker 1: can just kind of take me inside your process.
Speaker 2: Well, I wanted to look for all the issues and
Speaker 2: arguments that we could make. One of them that occurred
Speaker 2: to us that we pushed, but not too hard because
Speaker 2: it wasn't going to It didn't get us anywhere. Is
Speaker 2: that how come New Jersey is being treated differently than Nevada.
Speaker 2: New Jersey is a sovereign state. Nevada is a sovereign state.
Speaker 2: Is does the federal statute give precedents to Nevada for
Speaker 2: conducting an activity? What if the federal government said that
Speaker 2: states can have banks or states can have grocery stores,
Speaker 2: and one state can have them and one state can't.
Speaker 2: So we made an argument that was sort of an
Speaker 2: equal protection issue from the standpoint of states. We also
Speaker 2: made an argument that the legislation was not clear and
Speaker 2: was ambiguous. We were looking for anything like that that
Speaker 2: we could find. But the one that appealed to me
Speaker 2: is that the federal government in this case had the
Speaker 2: power to regulate gambling. It could regulate gambling under the
Speaker 2: Interstate Commerce Clause if it was commerce, and it certainly was,
Speaker 2: but the Congress did not choose to do it that way.
Speaker 2: It said states may not authorize or permit gambling on
Speaker 2: sports So in other words, what Congress was doing was,
Speaker 2: we want to prohibit this activity, but we want the
Speaker 2: states to do it. States will take the responsibility and
Speaker 2: the blame and the credit or the blame for doing it,
Speaker 2: because the federal government stepped aside just demanding that the
Speaker 2: states do it, and the states will spend their money
Speaker 2: to pass a statute and enforce a statute. The response
Speaker 2: to that is, what's wrong with that? Is the federal
Speaker 2: government going to do something, it should take responsibility for it.
Speaker 2: It should pay for the enforcement. It should have to
Speaker 2: have to answer to its citizens for what it has done.
Speaker 2: It shouldn't say we've got nothing to do with that.
Speaker 2: You'll have to go to the people in New Jersey
Speaker 2: and the legislature of New Jersey to do something about it.
Speaker 2: And that seemed to me wrong, and to violate this
Speaker 2: principle that the federal government cannot core states to do
Speaker 2: something thing that the federal government can do itself.
Speaker 1: It seemed to you obviously unconstitutional.
Speaker 2: Well, it seemed to me that we had a strong
Speaker 2: constitutional argument, but that we thought that it was going
Speaker 2: to be very difficult because only two cases in recent
Speaker 2: history in the Supreme Court that had articulated this anti
Speaker 2: commandeering doctrine. That's the way it's been referred to, that
Speaker 2: the federal government can't command or draft or coerce the
Speaker 2: states into doing what it should do. There were only
Speaker 2: two Supreme Court cases that had articulated that principle in
Speaker 2: recent years, and our opponents and everybody else said, well,
Speaker 2: they're never going to buy that. That's just too remote,
Speaker 2: it's too attenuated a constitutional argument. You're never going to succeed.
Speaker 2: But that's how we had to succeed. And we lost
Speaker 2: three times in the district court and at least twice
Speaker 2: in the third Circuit. So we had a fight all
Speaker 2: the way, and I think until we finally won, no
Speaker 2: one thought, not no one but people, the smart people
Speaker 2: did not think we were going to win.
Speaker 1: If I were to ask you to handicap the case
Speaker 1: when you took it, what kind of odds would you
Speaker 1: giving yourself a succeed?
Speaker 2: Oh, you wanted me to bet on my own case. Well, actually,
Speaker 2: what I should have done, Michael Is asked for a
Speaker 2: percentage of the amount bet as a result of our case.
Speaker 2: If we won, I should have developed some kind of
Speaker 2: contingent fee.
Speaker 1: You can't see everything coming I would have.
Speaker 2: Said, I think we have a good chance of getting there.
Speaker 2: We have a solid principle. I probably wouldn't have put
Speaker 2: a number on it, but we have a solid principle.
Speaker 2: But it's going to be very difficult. I've had several
Speaker 2: cases in my career where we've convinced the Supreme Court
Speaker 2: overturn an Act of Congress. That is very rare. It's
Speaker 2: very difficult, and I would tell the client it's a
Speaker 2: long shot, and the odds are strenuously against us, but
Speaker 2: you are right on principle, and we ought to keep
Speaker 2: pursuing it. Now, Governor Christie, to his great credit, after
Speaker 2: we lost and then we lost, and then we lost
Speaker 2: and so forth, and it was costing resources and political
Speaker 2: capital to do this, but he's stuck with us. I
Speaker 2: kept thinking we could get to the Supreme Court, we
Speaker 2: could win, and of course we did at the end
Speaker 2: of the day. But it took a lot of persistence
Speaker 2: and faith by Governor Christie and members of the New
Speaker 2: Jersey legislature that stuck with us.
Speaker 1: We're going to take a quick break. I'm back with
Speaker 1: constitutional lawyer Ted Olson talking about his long battle on
Speaker 1: behalf of the state of New Jersey.
Speaker 2: Every time you're representing a government, it's a little bit
Speaker 2: different than representing a private party like a company like
Speaker 2: Microsoft or Apple or something like that. A government has
Speaker 2: budget issues, it has people criticizing the way money is spent,
Speaker 2: It has limited amounts of money. The governor has to
Speaker 2: explain why he's spending state resources to handle an argument
Speaker 2: that many people think cannot be successful.
Speaker 1: By the time you come to challenge this law, it's
Speaker 1: twenty years old. How unusual is it for a law
Speaker 1: to sit there for that long before it's challenged and
Speaker 1: it actually is then overturned.
Speaker 2: Well, it's very unusual. In the first place, this law
Speaker 2: was passed something like unanimously. I can't remember the numbers,
Speaker 2: but it was very, very popular when passed. The desire
Speaker 2: to pass this statute was perceived as doing good to
Speaker 2: stop people from betting on sports, stop the potential corruption
Speaker 2: of athletes and the temptations that might be put before
Speaker 2: them through money. Everybody remembers the Black Sox. You probably
Speaker 2: know that better than anybody, and so that's the specter.
Speaker 2: And it did set around for twenty years. One of
Speaker 2: the things that our opponents did say, well, that's been
Speaker 2: around for twenty years nobody challenged it. Why is the
Speaker 2: Supreme Court going to get involved in that now? So
Speaker 2: you have the impetus or the inertia of challenging something
Speaker 2: that has sat there very popular, no one's challenged it before.
Speaker 2: We're making an argument that no one has made against
Speaker 2: this particular federal statute. So yes, it's a very significant
Speaker 2: uphill climb, and it's very rare that it could be
Speaker 2: done and done successfully.
Speaker 1: How did you prepare for the argument in twenty eighteen?
Speaker 2: I prepare pretty much the same way, the way everybody
Speaker 2: should prepare. I read the briefs carefully. I read the
Speaker 2: cases underlying the briefs. I look at the tradition and
Speaker 2: history of the constitutional provisions that might be involved. I
Speaker 2: look at particular way that these issues have been approached
Speaker 2: by the justices. I asked my colleagues to prepare an
Speaker 2: analysis of each of the justices with respect to these
Speaker 2: particular issues. I participate in moot courts where we as
Speaker 2: symbol five or six or more very vary astute constitutional lawyers,
Speaker 2: sometimes in my firm, sometimes outside my firm, to ask
Speaker 2: questions for about an hour and a half. Put me
Speaker 2: on the spot so that I can anticipate what the
Speaker 2: justices might ask and make my answers more crisp, and
Speaker 2: avoid traps that you might not think of if you
Speaker 2: don't expose yourself to that kind of competitive arena. So
Speaker 2: I try to do all those things. I try to
Speaker 2: write my own questions out. I try to synthesize the
Speaker 2: case in a sentence or two. I believe that if
Speaker 2: you can't explain it to sophomore in high school in
Speaker 2: a sentence or two, then you've got to go back
Speaker 2: to work. You've got to make it. You've got to
Speaker 2: make it very simple and straightforward, and you have to
Speaker 2: make your principle appealing. And that's why I tell people,
Speaker 2: think of the prism through which you want the justices
Speaker 2: to perceive this case, and so you can keep going
Speaker 2: back to that root principle when you get asked questions.
Speaker 1: Do this for me. Sum up in a couple of sentences,
Speaker 1: your opponent's argument and your argument.
Speaker 2: Well, our opponent's argument, I'll do that first is that
Speaker 2: sports betting is bad. It tends to corrupt the youth,
Speaker 2: it tends to put at risk the integrity of organized sports,
Speaker 2: and it shouldn't be done. And Nevada was allowed to
Speaker 2: do that because of historical reasons that had already started.
Speaker 2: The argument that I would have made is that yes,
Speaker 2: Congress can do that. Congress can take the responsibility of
Speaker 2: prohibiting or regulating betting on sports if it wants to.
Speaker 2: It certainly can, but it can't tell the state of
Speaker 2: California or the state of New Jersey. You do it,
Speaker 2: you take responsibility for it, you pay for enforcement, you
Speaker 2: supervise it, you do what we could do, so that
Speaker 2: we can stand back and say, well, it's not up
Speaker 2: to us, so that the principle is that states have
Speaker 2: the power not to be regulated as states by the
Speaker 2: federal government. Now I could probably and I would hope
Speaker 2: to be able to make that a little bit simpler.
Speaker 1: That's all right. Did you when you first saw the
Speaker 1: laws it was written, did it strike you as odd
Speaker 1: that it instead of just banning sports gambling, it banned
Speaker 1: states from changing their sports gambling laws.
Speaker 2: It is an unusual statute because it does it doesn't
Speaker 2: do what Congress could do. It makes the states do it.
Speaker 2: And I did see this right away that why that's unusual.
Speaker 2: Congress can regulate marijuana, it can regulate trucking industries that
Speaker 2: can do all those things, but it can't tell the
Speaker 2: states you do it. I hate to be cynical, but
Speaker 2: Congress loves to do this sort of thing. It loves
Speaker 2: to take positions that everybody will applaud it for taking,
Speaker 2: but then not have any responsibility for doing it. They
Speaker 2: could be against sports betting, but then when someone said
Speaker 2: we want to bet on sports, don't come to us,
Speaker 2: go to the legislature in Connecticut or whatever. They're the
Speaker 2: ones that are prohibited it. So Congress loves to do
Speaker 2: this sort of thing, and if you follow them, they
Speaker 2: do it all the time. They pass statutes with gaping
Speaker 2: holes of discretion, then expect administrative agencies to do it,
Speaker 2: and when the agency does it in a way that
Speaker 2: they don't like, then they scream and holler and say,
Speaker 2: see those out of control bureaucrats. Blah blah blah. But
Speaker 2: the motivating factor of members of Congress is to get
Speaker 2: re elected. So if they can take a popular position
Speaker 2: and yet not have responsibility for it, they'll do it
Speaker 2: every time.
Speaker 1: Were you surprised by what's happened since you won? Were
Speaker 1: you surprised by the explosion in sports gambling? I'm not.
Speaker 2: I think that in some respects it's good. In some
Speaker 2: respects it may not be. There's an awful lot of
Speaker 2: it taking place. I am a little surprised that you
Speaker 2: can now bet on particular plays during the course of
Speaker 2: a game. I was at the Super Bowl somebody's home
Speaker 2: during the Super Bowl a year or so ago, and
Speaker 2: one of my neighbors was there and that there's little
Speaker 2: computer in his hander is his cell phone, and he said,
Speaker 2: I just bet that somewhere during some time during this game,
Speaker 2: someone will attempt to hit a field goal and it
Speaker 2: will hit the goalposts. And I said, Jesus Christ, you
Speaker 2: know who would bet on something like that? And then
Speaker 2: about five minutes later it happened. I never would have
Speaker 2: thought that you would be able to bet on that
Speaker 2: degree of granular nature of the of the contest, but
Speaker 2: it has happened. And you know, people are very, very creative,
Speaker 2: and people love thet they love to well so, and
Speaker 2: so we'll have six free throws, or make only four
Speaker 2: of them. You know, anything that people can bet on,
Speaker 2: they will.
Speaker 1: When that person bet on a field goal hitting the goalpost,
Speaker 1: did you turn to him and say, do you know
Speaker 1: why you can do.
Speaker 2: This No, he knew, he knew, he knew it was
Speaker 2: he knew I had been involved in this case. My
Speaker 2: neighbors know.
Speaker 1: So we're going to let you go. But before we
Speaker 1: let you go, how many cases have you argued in
Speaker 1: front of the Supreme Court?
Speaker 2: Sixty five?
Speaker 1: Where does that put you in the all time ranking?
Speaker 2: Well, it depends. The Supreme Court used to take one
Speaker 2: hundred and fifty cases a year in the eighties, and
Speaker 2: more than that in a couple of generations before that,
Speaker 2: so there are a lot more opportunities. Secondly, I was
Speaker 2: Solicitor General for three and a half years, and so
Speaker 2: you get to argue. I was arguing about six seven
Speaker 2: eight cases a year as Solicitor General. There are some
Speaker 2: people in the Solicitor General's office that have been there
Speaker 2: for forty years and they have a lot of more
Speaker 2: cases that they've argued than me. And there's a couple
Speaker 2: of lawyers in private practice that have argued more cases
Speaker 2: than that, but they also spent a lot of time
Speaker 2: in the Solicitor General's office to get to those numbers.
Speaker 1: I really appreciate your time, and I hope one day
Speaker 1: I get to meet you in person.
Speaker 2: Well, I look forward to that absolutely.
Speaker 1: Now. As it happened, I did get to meet Ted
Speaker 1: Olson in person just a few weeks after this conversation.
Speaker 1: He took me to dinner in Washington, d C. And
Speaker 1: he was a delight in person. I totally enjoyed his company.
Speaker 1: I thought I'd made a new friend. It's sad to
Speaker 1: lose him. Whether or not you agree with his arguments,
Speaker 1: it's clear his legacy will outlive him for sure, if
Speaker 1: only because every time you place a bet on a game,
Speaker 1: there's a little piece of Ted Olson in there. Thanks
Speaker 1: again for listening to this special Bone episode. We'll be
Speaker 1: back to our regular episodes next week. Against the Rules
Speaker 1: is written and hosted by me Michael Lewis and produced
Speaker 1: by Lydia gene Kott, Catherine Gerardeau, and Ariella Markowitz. Our
Speaker 1: editor is Julia Barton. Our engineer is Sarah Bruguer. Against
Speaker 1: the Rules is a production of Pushkin Industries. To find
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