Not long ago, the most famous lawyers in America tended to be found in New York City — constitutional theorists, corporate litigators, and kings of torts — or practicing criminal law in the provinces. Now, as the realms of influence and press attention have shifted, the superlawyers are largely concentrated in Washington, where their featured talents are not just forensic skills but political acumen and a grasp of the capital’s folkways.
In recent years, the most successful and celebrated of these public advocates was Ted Olson, a cordial and low-key but determined and camera-ready legal warrior who argued some 65 cases before the U.S. Supreme Court and died on Nov. 13 at age 84.
The fact that Olson was also a partisan player — he held senior posts in the Reagan and Bush II administrations, was a courtroom champion of conservative causes, and was a founding member of the Federalist Society — may also be seen as evidence of the Republican resurgence that began toward the end of the last century in a city long dominated by Democrats.
Yet his partisanship was scarcely blind: His most famous case may well have been his successful lawsuit in the federal appellate courts, jointly undertaken with the Democratic litigator David Boies, against California’s Proposition 8, which had outlawed gay marriage. Their 2013 victory laid the groundwork, two years later, for the Supreme Court’s Obergefell decision, and while Olson’s posture might well have “surprised colleagues and foes alike,” in the words of the New York Times, it said more about his convictions as a lawyer and stalwart defender of civil liberties than his political bona fides.
Olson had an interest in a wide range of causes and conflicts — he defended the New England Patriots quarterback Tom Brady when Brady was accused of deflating footballs (2015) and played Joe Biden in GOP vice presidential nominee Paul Ryan’s debate practice sessions (2012) — and, on other occasions, crossed party lines when laws and policies disturbed his libertarian ideas.
His route to Washington was not exactly a straight line. Theodore Olson was born in Chicago in 1940. His father, an engineer, and his mother, an English teacher and poet, soon moved their family to California, where Olson majored in communications and history at the University of the Pacific, graduating in 1962. In 1964, while attending the University of California, Berkeley, law school, he found himself among a small number of students supporting the presidential candidacy of Barry Goldwater. After graduation, he joined the Los Angeles law firm of Gibson, Dunn, and Crutcher (now Gibson Dunn) in which he largely specialized in First Amendment law and counseled media corporations such as NBC and the Los Angeles Times.
In 1981, when a senior partner in the firm, William French Smith, was appointed attorney general by President Ronald Reagan, he brought along two young associates, Olson and Kenneth Starr, with him to Washington. Olson, who as an assistant attorney general headed the Justice Department’s Office of Legal Counsel, quickly made a name for himself guiding the White House in its arguments against race-based college admissions policies and in federal contracting, and skillfully defending Reagan’s firing of air traffic controllers during their illegal strike.
Indeed, so effective was Olson as an advocate that, after leaving the Justice Department to head Gibson Dunn’s Washington office, in 1984, he served as Reagan’s personal lawyer during the Iran-Contra scandal three years later.
By this time, Olson was one of a handful of the capital’s best-known, best-connected, and most resourceful lawyers at a time when the conservative legal movement was gaining ground in hostile territory, and in 1994, Republicans gained control of the Senate and House of Representatives for only the second time since 1952. His personal renown was no doubt enhanced when, in 1996, the twice-divorced Olson married the personable conservative writer and activist Barbara Bracher, who died on 9/11 when, as a passenger, terrorists crashed her airliner into the Pentagon.
It was also inevitable that, when the results of the 2000 presidential election were contested in Florida, Olson would serve as a principal counsel in the contentious legal struggle that ended when the Supreme Court ruled, in Bush v. Gore, that the Florida Supreme Court’s order for a recount violated the Constitution’s equal protection clause.
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A few months later, Olson’s appointment by President George W. Bush to be solicitor general was fiercely opposed by congressional Democrats. It was, however, a measure of his reputation that two of his strongest supporters were Laurence Tribe, the Harvard Law professor who had represented Al Gore in the Florida contest and declared that Olson would serve “with honor and with distinction,” and the liberal academic Cass Sunstein of the University of Chicago, who described him as a “fair-minded and independent-thinking” person.
Olson was a fierce legal warrior but a happy and principled one.
Philip Terzian is the author of Architects of Power: Roosevelt, Eisenhower, and the American Century.