WEBVTT - An Interview with Ted Olson 0:00:15.356 --> 0:00:29.196 Pushkin. Hey there, Michael lewis here. I'm dropping into the 0:00:29.196 --> 0:00:32.556 feed today with some sad news. One of the voices 0:00:32.596 --> 0:00:34.316 you may have heard if you listen to our third 0:00:34.356 --> 0:00:38.276 episode this season is no longer with us. The constitutional 0:00:38.316 --> 0:00:42.356 lawyer Ted Olsen. He died November the thirteenth in Virginia 0:00:42.476 --> 0:00:46.076 at the age of eighty four. Olson argued the case 0:00:46.196 --> 0:00:49.236 Murphy versus the NCAA that led to the legalization of 0:00:49.236 --> 0:00:52.316 sports gambling in the United States, but his career as 0:00:52.356 --> 0:00:54.476 a lawyer has been about so much more than that. 0:00:55.436 --> 0:00:58.076 For example, he argued the case that allowed same sex 0:00:58.116 --> 0:01:01.476 couples to get married. He defended the rights of Dreamers, 0:01:01.756 --> 0:01:05.796 people brought to this country undocumented as children. He also 0:01:05.956 --> 0:01:08.476 argued for a lot of Republican causes, including the case 0:01:08.516 --> 0:01:10.756 that got George H. W. Bush declared the winner of 0:01:10.756 --> 0:01:14.276 the two thousand presidential election, and he later served as 0:01:14.396 --> 0:01:18.796 US Solicitor under Bush. Ted Olson was involved in the 0:01:18.796 --> 0:01:22.676 Federalist Society, the largely conservative legal movement that has shaped 0:01:22.716 --> 0:01:26.956 the Supreme Court for decades to come. He was a 0:01:26.956 --> 0:01:30.396 complicated and interesting character in one of the most brilliant 0:01:30.476 --> 0:01:33.036 legal minds of our era, and it was an honor 0:01:33.076 --> 0:01:35.836 to get to talk with him. I wanted you to 0:01:35.876 --> 0:01:38.716 hear more of my original conversation with him. Because we 0:01:38.796 --> 0:01:42.196 only use little snippets in our episode. Think of this 0:01:42.196 --> 0:01:45.196 as a kind of small memorial. We'll be back with 0:01:45.236 --> 0:01:48.556 our regular episodes next week. But meanwhile, here's me with 0:01:48.636 --> 0:01:52.836 Ted Olson back in June. Do you remember the first 0:01:52.916 --> 0:01:54.996 case you argued before the Supreme Court. 0:01:55.436 --> 0:01:58.556 I do. It was while I was an assistant Attorney General. 0:01:59.076 --> 0:02:03.876 It was in nineteen eighty three. It is a practice 0:02:04.876 --> 0:02:09.116 in the Justice Department for the Solicitor General, who controlled 0:02:09.836 --> 0:02:14.036 litigation by the United States and the Supreme Court, to 0:02:14.076 --> 0:02:18.876 allow any of the assistant attorneys general there are six 0:02:18.996 --> 0:02:22.476 or eight of them, to argue one case during their 0:02:22.516 --> 0:02:26.556 tenure in the Supreme Court, and the Solicitor General at 0:02:26.556 --> 0:02:30.236 the time, whose name was rex Lee, decided that a 0:02:30.276 --> 0:02:33.876 separation of powers case was appropriate for me. I was 0:02:34.196 --> 0:02:37.196 very anxious to take on a case in the Supreme Court, 0:02:37.636 --> 0:02:41.516 and he got a case called Garcia versus San Antonio Transit, 0:02:41.876 --> 0:02:46.716 which involved the separation of powers vertically between powers of 0:02:46.756 --> 0:02:49.396 the states and power of the federal government, which of 0:02:49.436 --> 0:02:52.676 course comes up again in this Murphy case. It was 0:02:52.716 --> 0:02:58.836 whether the states running their municipal transit systems had to 0:02:58.876 --> 0:03:05.036 follow federal statutes with respect to wage controls, hours, overtime, 0:03:05.396 --> 0:03:09.716 and fair labor standards. And the argument that Tonia was 0:03:09.796 --> 0:03:12.996 making was that they had the right to set those 0:03:13.036 --> 0:03:17.316 standards without interference by the federal government. The federal government 0:03:17.436 --> 0:03:20.236 was saying, oh, no, we have the power to impose 0:03:20.276 --> 0:03:24.636 those standards on you in your employment employer capacity. 0:03:24.836 --> 0:03:26.396 So you were representing the federal government. 0:03:26.916 --> 0:03:29.556 Yes. I was an assistant Attorney General at the time, 0:03:29.956 --> 0:03:32.676 So yes, I was representing the federal government in that case. 0:03:32.676 --> 0:03:34.036 How did you feel about that case? 0:03:34.956 --> 0:03:37.196 I wanted to make the case that the federal government 0:03:37.276 --> 0:03:42.196 had the power to impose these requirements on employers in 0:03:42.236 --> 0:03:47.556 the commercial context, upon states and communities, and so very 0:03:47.676 --> 0:03:51.956 enthusiastic about arguing it. It turned out that the Supreme 0:03:51.996 --> 0:03:55.756 Court thought the case was so important that they wanted it. 0:03:56.156 --> 0:04:00.796 They set it for reargument for the following term and 0:04:00.916 --> 0:04:06.396 specifically asked a further briefing on the question whether or 0:04:06.476 --> 0:04:10.436 not the Tenth Amendment protect to states from that kind 0:04:10.476 --> 0:04:13.076 of interference by the federal government or not. 0:04:13.756 --> 0:04:14.236 Did you win? 0:04:16.116 --> 0:04:18.836 The federal government won that case, and. 0:04:18.796 --> 0:04:22.516 So you said you were anxious to argue something before 0:04:22.516 --> 0:04:24.476 the Supreme Court. Did you mean anxious or eager? 0:04:25.276 --> 0:04:26.996 Eager? I was anxious too. 0:04:27.436 --> 0:04:29.516 What did it feel like? I'm just curious, like if 0:04:29.556 --> 0:04:31.476 you could take us back to the first time you're 0:04:31.516 --> 0:04:35.756 standing up before nine justices and having to make a case, well. 0:04:35.596 --> 0:04:40.716 It is a thrilling and terrifying experience. The justices, of course, 0:04:40.836 --> 0:04:45.076 are all very learned in the subjects that you're arguing 0:04:45.116 --> 0:04:48.556 for them. In this case, there was a constitutional question. 0:04:48.996 --> 0:04:51.756 They were very familiar with it. It was a subject 0:04:51.756 --> 0:04:56.556 that Justice Renquist, before he was Chief Justice, was very 0:04:56.596 --> 0:05:01.276 interested in. And you don't dare make a mistake, especially 0:05:01.676 --> 0:05:05.156 if you're representing the federal government. Everything that you say 0:05:05.916 --> 0:05:09.836 is the standard, is the policy of the United State government. 0:05:09.916 --> 0:05:13.356 That's a very heavy responsibility, so you have to be 0:05:13.596 --> 0:05:17.516 very very well prepared. Each of the nine justices would 0:05:17.556 --> 0:05:23.036 interrupt and ask questions, interrupt your train of thought, interrupt 0:05:23.036 --> 0:05:26.356 your answer to the other justices questions. So it's a 0:05:26.476 --> 0:05:30.836 very dynamic situation and you have to be very well prepared. 0:05:30.876 --> 0:05:34.196 I was thrilled to be there, and I was very 0:05:34.436 --> 0:05:37.796 anxious and eager to do it right. 0:05:38.396 --> 0:05:40.916 How's it different from just arguing a normal case. 0:05:41.676 --> 0:05:44.076 Well, in normal case, you might be talking to one 0:05:44.236 --> 0:05:49.436 judge or one justice. This was nine justices. Each have 0:05:49.516 --> 0:05:52.796 their own history, Each have their own background with respect 0:05:52.876 --> 0:05:56.636 to constitutional principles or whatever it is that you're arguing, 0:05:57.596 --> 0:06:01.676 and they are very independent. They're fiercely independent. You can't 0:06:01.716 --> 0:06:05.276 assume that someone is a liberal or a conservative justice, 0:06:05.556 --> 0:06:07.796 that they might come out a certain way. You can 0:06:07.836 --> 0:06:11.916 look at decisions they've made, or opinions they've written, concurring 0:06:11.956 --> 0:06:15.796 opinions or dissenting opinions or majority opinions. You can track 0:06:15.876 --> 0:06:18.836 their record. And that's what I do. Whenever I argue 0:06:18.836 --> 0:06:20.956 a case in the Supreme Court, I go back and 0:06:20.996 --> 0:06:23.636 I have some of my associates help me with this. 0:06:23.996 --> 0:06:28.356 Take a look at each justice and the various issues 0:06:28.396 --> 0:06:31.316 in the case. Frequently there are more than one issue, 0:06:31.636 --> 0:06:34.476 and how would they rule, how would they think about 0:06:34.516 --> 0:06:38.076 each one of these issues, and the inter relationship between 0:06:38.116 --> 0:06:42.316 those issues and the inter relationship between themselves and the 0:06:42.356 --> 0:06:46.236 other justices. A justice might ask you what appears to 0:06:46.276 --> 0:06:49.596 be a softball question in the Supreme Court, and you 0:06:49.676 --> 0:06:51.876 have to be careful answering that kind of a question 0:06:51.956 --> 0:06:55.516 because you might please the justice who asked that question, 0:06:55.876 --> 0:07:00.156 but alienate eight others. So it's a very tricky situation. 0:07:00.396 --> 0:07:03.396 Do you feel like between that first time you stood 0:07:03.476 --> 0:07:06.396 up to argue a case and by the time you're 0:07:06.436 --> 0:07:10.436 standing up to ar you Murphy, that you'd improved? 0:07:11.796 --> 0:07:13.236 Well, I hope i'd improved. 0:07:13.636 --> 0:07:16.036 Like if I was watching the if I was watching 0:07:16.236 --> 0:07:19.516 the young Tedduhlson versus the middle aged tedtdles and in front, 0:07:19.916 --> 0:07:22.556 up and up in front of the Supreme Court, what 0:07:22.676 --> 0:07:23.716 difference is what I notice? 0:07:23.796 --> 0:07:26.276 Well, I'm not sure. I haven't looked at back at 0:07:26.316 --> 0:07:29.116 it that way. I'll tell you this, every time I 0:07:29.276 --> 0:07:32.316 argue a case, no matter where it is, what level 0:07:32.316 --> 0:07:34.196 of the court is, you want to be better than 0:07:34.236 --> 0:07:37.836 the time before. You learn from your mistakes. We all 0:07:37.956 --> 0:07:42.356 make them, and you can watch other people make mistakes 0:07:42.436 --> 0:07:45.076 or do things that are they're dumb, or you might 0:07:45.156 --> 0:07:48.356 walk into something that you hadn't prepared for. That'll tell 0:07:48.396 --> 0:07:51.356 you have to be better prepared next time. By the 0:07:51.396 --> 0:07:53.676 time we argued the Murphy case, I had argued it 0:07:54.316 --> 0:07:58.596 three or four times in federal district court and two 0:07:58.756 --> 0:08:01.876 or three times in the United States Court of Appeals 0:08:01.916 --> 0:08:04.836 for the Third Circuit. So by then the issues were 0:08:05.876 --> 0:08:09.436 something that I'd gone over before, and we had very, 0:08:10.036 --> 0:08:15.476 very forceful and strong capable opponents. Paul Clement, who argued 0:08:15.516 --> 0:08:19.556 against me as an absolutely fabulous lawyer the United States, 0:08:19.636 --> 0:08:22.876 was also in that case arguing against me with someone 0:08:22.916 --> 0:08:26.076 from the Solicitener General's office. So the case was very 0:08:26.156 --> 0:08:29.796 very well presented, and the justices knew what the issues were. 0:08:29.836 --> 0:08:36.996 This issue of the United States federal government forcing itself 0:08:37.076 --> 0:08:41.876 on states was an issue that they had heard before, 0:08:41.956 --> 0:08:45.796 although not very often, so it took a lot of preparation. 0:08:47.436 --> 0:08:50.196 Whether I was any better, I hope I wouldn't have 0:08:50.196 --> 0:08:52.276 made as many mistakes as I might have made that 0:08:52.316 --> 0:08:52.796 first time. 0:08:52.876 --> 0:08:55.516 Can you give me an example of a mistake you 0:08:55.636 --> 0:08:57.836 made in your career that you learn from? 0:08:58.196 --> 0:09:01.076 There are ours things that you learn from arguments. We 0:09:01.116 --> 0:09:04.796 prepare so thoroughly that we try to avoid those kind 0:09:04.836 --> 0:09:08.596 of mistakes. Now, occasionally there's some of the justices that 0:09:09.316 --> 0:09:11.956 used to be on the Supreme Court would ask questions 0:09:11.996 --> 0:09:15.916 completely out of left field that you could possibly anticipate. 0:09:16.156 --> 0:09:19.636 And I've had questions from the current justices that I 0:09:19.716 --> 0:09:24.196 thought were not very well conceived. And you have to 0:09:24.236 --> 0:09:26.916 be dance on your feet. The court is allowing a 0:09:26.916 --> 0:09:30.076 little bit more time now for oral argument. But for 0:09:30.156 --> 0:09:32.836 the early part of my career, most of my career, 0:09:33.276 --> 0:09:36.876 the Supreme Court allowed thirty minutes per side. That's it. 0:09:37.316 --> 0:09:39.996 And when your time was up, your time was up, 0:09:40.036 --> 0:09:43.836 and you had to cram your argument, answers to the questions, 0:09:43.916 --> 0:09:49.316 your theme into that thirty minutes and get it all done. 0:09:50.916 --> 0:09:53.156 We'll be right back with more of my conversation with 0:09:53.196 --> 0:10:10.076 ted Olsen. I'm back with Ted Olsen. So I've never 0:10:10.116 --> 0:10:12.996 been inside the Supreme Court. If you if you can 0:10:13.036 --> 0:10:14.956 just paint a picture for me the first time you 0:10:14.996 --> 0:10:16.876 stand up, What does it? What does it look like? 0:10:17.196 --> 0:10:21.796 You're standing at a podium looking at the Supreme Court. 0:10:21.956 --> 0:10:25.796 They are arrayed all night of them in something close 0:10:25.876 --> 0:10:30.756 to an arc, so that the justices and they're arranged 0:10:30.796 --> 0:10:34.236 by and by in order of seniority. The chief Justice 0:10:34.236 --> 0:10:38.796 is in the middle, the senior most colleague on the 0:10:38.836 --> 0:10:41.996 court is to his right, the next on his left, 0:10:42.236 --> 0:10:46.236 and on down to the most junior justices. Now, it's 0:10:46.396 --> 0:10:49.076 enough of a curve that if you're looking at one 0:10:49.116 --> 0:10:52.636 of the justices at one end of the court, one 0:10:52.756 --> 0:10:56.396 end physically of the court. You might not have in 0:10:56.436 --> 0:11:01.636 your eye attention uh the other justices, so it helps 0:11:01.676 --> 0:11:04.996 if you've done it often enough that you recognize voices. 0:11:05.676 --> 0:11:09.636 So they are very very close the chief Justices, probably 0:11:09.796 --> 0:11:13.556 six seven to eight feet from the from the podium 0:11:13.556 --> 0:11:17.196 where you're standing. You stand still, you don't move about, 0:11:18.236 --> 0:11:21.916 and you stand up straight and address the court as 0:11:21.996 --> 0:11:25.396 much as you can. The press is arrayed to your left, 0:11:26.276 --> 0:11:29.116 with some seats that are set aside for the press 0:11:29.556 --> 0:11:34.116 that are perpendicular to where you're standing. In perpendicular to 0:11:34.196 --> 0:11:37.836 the bench behind you are members of the of the 0:11:37.956 --> 0:11:41.996 United States Supreme Court bar probably a couple hundred, and 0:11:42.036 --> 0:11:45.316 then behind them are members of the general public. And 0:11:45.436 --> 0:11:49.156 over to your right are a group of benches reserved 0:11:49.196 --> 0:11:53.556 for relatives and friends of the justices, and behind them 0:11:53.636 --> 0:11:56.196 some of the clerks. It is not a big space, 0:11:56.716 --> 0:11:59.956 not very many people can get in there. The acoustics 0:11:59.996 --> 0:12:03.956 are very very good so that you can hear your voice, 0:12:04.196 --> 0:12:08.076 and my voice fortunately carries quite well. Some of the 0:12:08.116 --> 0:12:15.236 justices speak more softly. Justice Ginsburg was well known to 0:12:15.276 --> 0:12:19.676 speak in a very soft voice and punctuate her speech 0:12:20.076 --> 0:12:23.836 with pauses, so sometimes it was hard to hear what 0:12:23.956 --> 0:12:26.796 she was asking, and sometimes it was difficult to know 0:12:27.316 --> 0:12:29.756 when she was done with the point and you didn't 0:12:29.756 --> 0:12:32.796 want to interrupt, well, she was still about to finish 0:12:32.836 --> 0:12:37.116 a sentence or a question. So it's not easy, but 0:12:37.436 --> 0:12:39.836 it is something that you have to learn and practice 0:12:40.516 --> 0:12:43.716 and become familiar with the justices what their style is. 0:12:44.556 --> 0:12:48.716 Right now, the Chief Justice Roberts is allowing more time 0:12:48.756 --> 0:12:51.516 for argument, so some of these arguments have gone on 0:12:51.636 --> 0:12:52.716 for a couple of hours. 0:12:52.876 --> 0:12:57.556 I'm curious, like, what's your intellectual history with states' rights 0:12:57.716 --> 0:13:00.356 to what do you date your interest in the subject 0:13:00.516 --> 0:13:03.596 of what the federal government should can do and what 0:13:03.636 --> 0:13:05.276 the states should be allowed to. 0:13:06.036 --> 0:13:10.196 Well, that's a difficult question because as it depends upon 0:13:10.276 --> 0:13:13.196 the context, it would be for me it would be 0:13:13.276 --> 0:13:18.396 something that what's the case, what's the issue, what are 0:13:18.436 --> 0:13:21.756 the merits, and what kind of constitutional questions does it raise. 0:13:22.116 --> 0:13:25.396 We have a system of government, as you know, that's 0:13:25.516 --> 0:13:30.276 quite different than systems of government in other countries. We 0:13:30.476 --> 0:13:35.476 have dual in a sense jurisdictions. We have separation of 0:13:35.556 --> 0:13:38.916 powers at the federal level, and we have federalism. States 0:13:39.076 --> 0:13:43.476 are the Constitution says we the people, the Congress, and 0:13:43.556 --> 0:13:48.196 the Constitution allows states to regulate people, it doesn't allow 0:13:48.476 --> 0:13:52.276 it allows Congress to regulate people, doesn't allow Congress to 0:13:52.356 --> 0:13:56.876 regulate states. So there's a delicate balance between what should 0:13:56.916 --> 0:13:59.996 be done and can be done at the local level, 0:14:00.076 --> 0:14:04.036 what the Constitution allocates to Congress to be able to do, 0:14:04.236 --> 0:14:07.316 and where there's space in between. 0:14:07.636 --> 0:14:12.036 So let's talk about the Murphy case. How do you 0:14:12.116 --> 0:14:14.916 decide whether to take on a case? Are you looking 0:14:15.116 --> 0:14:18.436 for whether this has constitutional implications right from the start. 0:14:19.276 --> 0:14:23.836 Well, a lot of it comes to us. We're sitting 0:14:23.876 --> 0:14:26.556 here waiting for clients to come to us and bring 0:14:26.636 --> 0:14:30.236 us difficult problems. I was contacted by one of my 0:14:30.356 --> 0:14:34.996 partners who was very close to Governor Christie. He wanted 0:14:35.076 --> 0:14:39.876 to reinvigorate Atlantic City by allowing Atlantic City to take 0:14:39.916 --> 0:14:45.356 the kind of gambling gaming opportunities that Nevada was doing 0:14:45.596 --> 0:14:48.796 regularly and day in and day out. Atlantic City was 0:14:49.516 --> 0:14:53.076 not thriving, it was suffering, and he felt that if 0:14:53.076 --> 0:14:55.916 we could just have sports betting in there, we would 0:14:56.036 --> 0:14:58.836 help the economy of New Jersey, and that was his goal. 0:14:59.476 --> 0:15:02.716 So he felt, is there a way to challenge the 0:15:02.796 --> 0:15:07.316 constitutionality of that statute? And if there is, what do 0:15:07.396 --> 0:15:10.636 you think of our chances of prevailing. So this was 0:15:10.836 --> 0:15:14.076 just the kind of case that I have always loved, 0:15:14.316 --> 0:15:17.516 a great challenge. It's very rare that you have an 0:15:17.556 --> 0:15:22.076 opportunity to challenge the constitutionality of an Act of Congress 0:15:22.476 --> 0:15:25.076 and seek a court to overturn an Act of Congress 0:15:25.116 --> 0:15:28.476 on constitutional grounds. This was one where there was not 0:15:28.596 --> 0:15:33.756 much precedent. If you've read the briefs, you probably noticed 0:15:33.796 --> 0:15:39.076 that we were opposed by the United States, a National 0:15:39.156 --> 0:15:44.076 Football League, Organized Baseball, the National Basketball Association, the NC 0:15:44.276 --> 0:15:48.516 two AA, just about everyone. We had opposition from it 0:15:48.676 --> 0:15:53.436 from the very beginning. So this was a major legal challenge, 0:15:54.036 --> 0:15:59.236 calling on perseverance and creativity to figure out the arguments 0:15:59.236 --> 0:16:03.156 that could be made to ask Congress to overturn I mean, 0:16:03.236 --> 0:16:06.316 ask the Supreme Court to overturn an act that had 0:16:06.356 --> 0:16:10.116 been very, very popular when it passed, and most people 0:16:10.156 --> 0:16:12.556 felt that it was the right thing that states not 0:16:12.716 --> 0:16:16.516 engage in state and sports betting. So we had lots 0:16:16.516 --> 0:16:17.276 of challenges. 0:16:17.756 --> 0:16:20.076 Did you have any feeling about sports betting at the time. 0:16:21.276 --> 0:16:23.716 I didn't. I didn't have a strong feeling one way 0:16:23.836 --> 0:16:27.356 or the other. Uh during the course of the litigation, 0:16:27.516 --> 0:16:31.316 we knew and we learned that sports betting was taking 0:16:31.316 --> 0:16:34.676 place all over the country. It was legal in the 0:16:34.716 --> 0:16:37.916 state of Nevada, but all over the country people were 0:16:37.956 --> 0:16:42.596 betting on sports, their local teams. All kinds of betting 0:16:42.716 --> 0:16:46.156 was taking place. It was a multi billion dollar industry. 0:16:46.476 --> 0:16:50.396 But it was all unlawful. It was all underground. It 0:16:50.476 --> 0:16:54.116 wasn't regulated because it was illegal, uh, and people could 0:16:54.156 --> 0:16:58.996 be cheated and all kinds of unsavory activities could take 0:16:59.036 --> 0:17:02.916 place because it was taking place. So what we were asking, 0:17:02.956 --> 0:17:06.356 and we wanted to phrase it this way to the 0:17:06.436 --> 0:17:10.356 court and to the courts, is this is something that 0:17:10.476 --> 0:17:14.116 is aside from the legal issues. Now, this is something 0:17:14.156 --> 0:17:18.076 that is happening. If it can be legalized, it can 0:17:18.156 --> 0:17:21.556 be regulated. You can put accountants in, you can require 0:17:21.636 --> 0:17:26.676 the operators to be transparent and to be subject to 0:17:26.796 --> 0:17:30.836 rules and regulations, and of course to a reasonable amount 0:17:30.876 --> 0:17:34.996 of taxation. So that from a policy standpoint, we felt 0:17:35.156 --> 0:17:37.276 we could make the argument that this would be a 0:17:37.276 --> 0:17:37.796 good thing. 0:17:38.156 --> 0:17:41.396 So, Chris Christy comes to you and the case interests you, 0:17:42.156 --> 0:17:44.676 how do you decide how to argue it? Like you 0:17:44.796 --> 0:17:47.276 can just kind of take me inside your process. 0:17:47.356 --> 0:17:49.796 Well, I wanted to look for all the issues and 0:17:49.996 --> 0:17:53.556 arguments that we could make. One of them that occurred 0:17:53.596 --> 0:17:56.116 to us that we pushed, but not too hard because 0:17:56.156 --> 0:17:59.156 it wasn't going to It didn't get us anywhere. Is 0:17:59.196 --> 0:18:04.116 that how come New Jersey is being treated differently than Nevada. 0:18:04.596 --> 0:18:08.396 New Jersey is a sovereign state. Nevada is a sovereign state. 0:18:09.716 --> 0:18:14.156 Is does the federal statute give precedents to Nevada for 0:18:14.276 --> 0:18:17.996 conducting an activity? What if the federal government said that 0:18:18.316 --> 0:18:22.316 states can have banks or states can have grocery stores, 0:18:23.636 --> 0:18:26.036 and one state can have them and one state can't. 0:18:27.596 --> 0:18:30.716 So we made an argument that was sort of an 0:18:30.756 --> 0:18:35.636 equal protection issue from the standpoint of states. We also 0:18:35.756 --> 0:18:40.956 made an argument that the legislation was not clear and 0:18:41.156 --> 0:18:45.036 was ambiguous. We were looking for anything like that that 0:18:45.076 --> 0:18:47.556 we could find. But the one that appealed to me 0:18:47.916 --> 0:18:52.236 is that the federal government in this case had the 0:18:52.316 --> 0:18:55.876 power to regulate gambling. It could regulate gambling under the 0:18:55.916 --> 0:19:00.596 Interstate Commerce Clause if it was commerce, and it certainly was, 0:19:01.596 --> 0:19:04.956 but the Congress did not choose to do it that way. 0:19:04.996 --> 0:19:09.316 It said states may not authorize or permit gambling on 0:19:09.396 --> 0:19:13.756 sports So in other words, what Congress was doing was, 0:19:13.796 --> 0:19:17.036 we want to prohibit this activity, but we want the 0:19:17.116 --> 0:19:21.356 states to do it. States will take the responsibility and 0:19:21.396 --> 0:19:24.956 the blame and the credit or the blame for doing it, 0:19:24.996 --> 0:19:28.356 because the federal government stepped aside just demanding that the 0:19:28.396 --> 0:19:31.276 states do it, and the states will spend their money 0:19:31.676 --> 0:19:35.836 to pass a statute and enforce a statute. The response 0:19:35.876 --> 0:19:38.836 to that is, what's wrong with that? Is the federal 0:19:38.876 --> 0:19:43.036 government going to do something, it should take responsibility for it. 0:19:43.036 --> 0:19:45.716 It should pay for the enforcement. It should have to 0:19:46.196 --> 0:19:49.476 have to answer to its citizens for what it has done. 0:19:49.716 --> 0:19:52.876 It shouldn't say we've got nothing to do with that. 0:19:52.956 --> 0:19:55.436 You'll have to go to the people in New Jersey 0:19:55.476 --> 0:19:58.836 and the legislature of New Jersey to do something about it. 0:19:58.876 --> 0:20:04.196 And that seemed to me wrong, and to violate this 0:20:04.356 --> 0:20:08.836 principle that the federal government cannot core states to do 0:20:08.876 --> 0:20:11.796 something thing that the federal government can do itself. 0:20:11.476 --> 0:20:13.596 It seemed to you obviously unconstitutional. 0:20:14.276 --> 0:20:17.236 Well, it seemed to me that we had a strong 0:20:17.396 --> 0:20:23.076 constitutional argument, but that we thought that it was going 0:20:23.156 --> 0:20:27.156 to be very difficult because only two cases in recent 0:20:27.316 --> 0:20:32.716 history in the Supreme Court that had articulated this anti 0:20:32.836 --> 0:20:36.836 commandeering doctrine. That's the way it's been referred to, that 0:20:37.396 --> 0:20:43.116 the federal government can't command or draft or coerce the 0:20:43.156 --> 0:20:45.676 states into doing what it should do. There were only 0:20:45.716 --> 0:20:51.596 two Supreme Court cases that had articulated that principle in 0:20:51.716 --> 0:20:54.716 recent years, and our opponents and everybody else said, well, 0:20:54.756 --> 0:20:58.236 they're never going to buy that. That's just too remote, 0:20:58.596 --> 0:21:02.796 it's too attenuated a constitutional argument. You're never going to succeed. 0:21:03.796 --> 0:21:06.436 But that's how we had to succeed. And we lost 0:21:07.076 --> 0:21:09.596 three times in the district court and at least twice 0:21:09.636 --> 0:21:12.916 in the third Circuit. So we had a fight all 0:21:12.956 --> 0:21:17.356 the way, and I think until we finally won, no 0:21:17.396 --> 0:21:22.316 one thought, not no one but people, the smart people 0:21:23.116 --> 0:21:24.636 did not think we were going to win. 0:21:26.396 --> 0:21:28.476 If I were to ask you to handicap the case 0:21:28.516 --> 0:21:30.956 when you took it, what kind of odds would you 0:21:31.036 --> 0:21:32.716 giving yourself a succeed? 0:21:32.716 --> 0:21:36.716 Oh, you wanted me to bet on my own case. Well, actually, 0:21:36.716 --> 0:21:39.556 what I should have done, Michael Is asked for a 0:21:39.636 --> 0:21:45.436 percentage of the amount bet as a result of our case. 0:21:45.476 --> 0:21:48.436 If we won, I should have developed some kind of 0:21:48.516 --> 0:21:49.356 contingent fee. 0:21:49.556 --> 0:21:52.196 You can't see everything coming I would have. 0:21:52.156 --> 0:21:55.316 Said, I think we have a good chance of getting there. 0:21:55.396 --> 0:21:58.636 We have a solid principle. I probably wouldn't have put 0:21:58.636 --> 0:22:01.516 a number on it, but we have a solid principle. 0:22:01.796 --> 0:22:04.436 But it's going to be very difficult. I've had several 0:22:04.476 --> 0:22:08.516 cases in my career where we've convinced the Supreme Court 0:22:09.196 --> 0:22:12.916 overturn an Act of Congress. That is very rare. It's 0:22:13.116 --> 0:22:16.636 very difficult, and I would tell the client it's a 0:22:16.676 --> 0:22:22.116 long shot, and the odds are strenuously against us, but 0:22:22.876 --> 0:22:26.076 you are right on principle, and we ought to keep 0:22:26.116 --> 0:22:29.476 pursuing it. Now, Governor Christie, to his great credit, after 0:22:29.516 --> 0:22:32.236 we lost and then we lost, and then we lost 0:22:32.436 --> 0:22:38.156 and so forth, and it was costing resources and political 0:22:38.236 --> 0:22:41.156 capital to do this, but he's stuck with us. I 0:22:41.276 --> 0:22:43.796 kept thinking we could get to the Supreme Court, we 0:22:44.356 --> 0:22:47.476 could win, and of course we did at the end 0:22:47.476 --> 0:22:49.916 of the day. But it took a lot of persistence 0:22:50.756 --> 0:22:54.236 and faith by Governor Christie and members of the New 0:22:54.276 --> 0:23:00.356 Jersey legislature that stuck with us. 0:23:01.476 --> 0:23:18.836 We're going to take a quick break. I'm back with 0:23:18.916 --> 0:23:22.036 constitutional lawyer Ted Olson talking about his long battle on 0:23:22.076 --> 0:23:25.196 behalf of the state of New Jersey. 0:23:25.236 --> 0:23:29.236 Every time you're representing a government, it's a little bit 0:23:29.236 --> 0:23:33.996 different than representing a private party like a company like 0:23:34.116 --> 0:23:37.956 Microsoft or Apple or something like that. A government has 0:23:38.396 --> 0:23:43.036 budget issues, it has people criticizing the way money is spent, 0:23:43.476 --> 0:23:46.396 It has limited amounts of money. The governor has to 0:23:46.436 --> 0:23:51.356 explain why he's spending state resources to handle an argument 0:23:51.436 --> 0:23:54.156 that many people think cannot be successful. 0:23:54.556 --> 0:23:58.116 By the time you come to challenge this law, it's 0:23:58.156 --> 0:24:03.076 twenty years old. How unusual is it for a law 0:24:03.116 --> 0:24:07.116 to sit there for that long before it's challenged and 0:24:07.436 --> 0:24:11.196 it actually is then overturned. 0:24:12.356 --> 0:24:16.476 Well, it's very unusual. In the first place, this law 0:24:16.596 --> 0:24:19.996 was passed something like unanimously. I can't remember the numbers, 0:24:20.676 --> 0:24:28.196 but it was very, very popular when passed. The desire 0:24:28.276 --> 0:24:33.436 to pass this statute was perceived as doing good to 0:24:33.476 --> 0:24:37.676 stop people from betting on sports, stop the potential corruption 0:24:37.836 --> 0:24:42.036 of athletes and the temptations that might be put before 0:24:42.116 --> 0:24:46.316 them through money. Everybody remembers the Black Sox. You probably 0:24:46.356 --> 0:24:50.436 know that better than anybody, and so that's the specter. 0:24:50.916 --> 0:24:53.556 And it did set around for twenty years. One of 0:24:53.556 --> 0:24:56.316 the things that our opponents did say, well, that's been 0:24:56.356 --> 0:24:58.836 around for twenty years nobody challenged it. Why is the 0:24:58.876 --> 0:25:01.596 Supreme Court going to get involved in that now? So 0:25:01.676 --> 0:25:07.276 you have the impetus or the inertia of challenging something 0:25:07.356 --> 0:25:12.076 that has sat there very popular, no one's challenged it before. 0:25:12.356 --> 0:25:15.556 We're making an argument that no one has made against 0:25:15.556 --> 0:25:19.996 this particular federal statute. So yes, it's a very significant 0:25:20.116 --> 0:25:23.116 uphill climb, and it's very rare that it could be 0:25:23.156 --> 0:25:24.836 done and done successfully. 0:25:25.716 --> 0:25:28.916 How did you prepare for the argument in twenty eighteen? 0:25:30.476 --> 0:25:33.356 I prepare pretty much the same way, the way everybody 0:25:33.436 --> 0:25:37.996 should prepare. I read the briefs carefully. I read the 0:25:38.036 --> 0:25:40.996 cases underlying the briefs. I look at the tradition and 0:25:41.156 --> 0:25:45.076 history of the constitutional provisions that might be involved. I 0:25:45.116 --> 0:25:49.556 look at particular way that these issues have been approached 0:25:49.556 --> 0:25:54.516 by the justices. I asked my colleagues to prepare an 0:25:54.556 --> 0:25:58.676 analysis of each of the justices with respect to these 0:25:58.716 --> 0:26:05.276