By Jacqueline Farnsworth, George Porteous & Anderson Warshaw
Conservatives’ signature political achievement has been the expansion of their majority on the Supreme Court , the capstone of a 30-year mission to restructure the country’s courts in their own image.
Case by case, the Supreme Court has rewritten the rules that have long structured the way we live, how we are governed, how we worship, and even who we are. Immigration. Health Care. Political representation. Reproductive and religious rights. . . It's hard to find any aspect of daily life beyond the reach of the court's sticky tentacles.
In the wake of one of the most consequential terms in the Supreme Court’s checkered history, Common Ground’s third forum of the season will debate the impact of the court’s restructuring and how it is exacerbating the country’s deep divisions.
Theodore b. olson
Our lead panelist is the renowned lawyer Ted Olson, a conservative legal lion who became a liberal icon and a bête noir to his traditional political allies for his pivotal role in legalizing gay marriage.
A fixture of the SCOTUS bar who has argued 65 cases before the court, Olson became a Republican superstar in 2000 when he won the infamous Bush v. Gore case on behalf of George W. Bush, paving the way for his inauguration.
Olson secured his position as a conservative hero almost a decade later when he successfully represented Citizens United against the Federal Election Commission, establishing the right for corporations to conduct unlimited ‘independent political spending’ in a case that changed the financing of American politics and remains a nightmare for election reform minded progressives.
But Olson says his “most important case” was his 2010 success in overturning California’s ban against same-sex marriage. Even before the court handed down its landmark decision, the case attracted national attention because of the unlikely pairing of the two lead lawyers: Olson and David Boies, one of the preeminent liberal attorneys and Olson’s losing counterpart in Bush v. Gore. The incongruous duo went on to co-author a highly acclaimed book about the “riveting inside story” of their advocacy entitled Redeeming the Dream.
Despite the gay marriage decision, which alienated many of Olson’s personal friends and remains one of the most notable liberal legal triumphs of recent decades, he insists that he has been a conservative through every moment of his long career and that it is always possible to transcend even the most divisive political rifts. That view is personified by his personal life -- his wife of nearly 16 years, Lady Booth Olson, is a lifelong Democrat.
Our next panelist, legendary lawyer and constitutional scholar Laurence Tribe, is perhaps the preeminent SCOTUS authority who doesn’t sit on the court. As former Solicitor General Erwin Griswold said in describing Tribe’s impact, “No lawyer not on the Court has ever had a greater influence on the development of American constitutional law.”
A Professor of Constitutional Law Emeritus at Harvard University, Tribe has argued 35 cases before the court and is credited with shaping the legal philosophies of such pivotal figures in American law and government as President Barack Obama, Chief Justice John Roberts and Justice Elena Kagan.
An advisor to every recent Democratic president, he has been a key official in helping to confirm their court nominees. His expertise – alongside his ability to balance Democratic leanings with fair practice of the law – placed him on the Biden administration’s bipartisan commission to assess proposed reforms to the Supreme Court.
In courtrooms as well as lecture halls, Professor Tribe has played a monumental role in several landmark legal decisions. His involvement in National Gay Task Force v. Board of Education, Bostock v. Clayton County, and Romer v. Evans has protected teachers’ rights to speak about LGBTQ+ issues in the classroom, reaffirmed workplace protections, and defended LGBTQ+ Americans’ status as a protected class. But his work defending the free speech rights of corporations, such as Peabody Energy and General Electric, has led environmentalists to view him with hostility.
Tribe also has had a profound influence through his writings: his 1978 trailblazing treatise, American Constitutional Law, remains a frequently cited legal text. He is the author of the 1990 book, Abortion: The Clash of Absolutes, which examines the constitutional underpinnings of America’s debate over abortion rights and is revered as an important roadmap to breaching a singularly cavernous ideological divide.
One of the loudest Republican voices criticizing the Supreme Court’s conservative strongarming, Washington Post columnist Jennifer Rubin rounds out our panel.
Rubin, who was once so conservative that her joining The Post in 2010 became national controversy, publicly defected from the conservative label in 2020 and now writes about partisan threats to our democracy and foreign and domestic policy. For years she has been clear-eyed about the danger partisanship poses specifically to the Supreme Court, warning that the presence of justices who outwardly express political alignment would delegitimize the court’s decisions.
Additionally, in a 2018 Post op-ed titled “If we want to protect the Supreme Court’s legitimacy, Kavanaugh should not be on it,” she predicted that the public would not trust a justice appointed by a president over half the country did not vote for and could not trust one who accused the Democratic party of conspiring against him. She repeated her concerns during the confirmation hearing of Amy Coney Barrett, and
today continues to eviscerate the conservative majority for taking more stock in their personal views than the law.
Editorial page editor for The Post Fred Hiatt once said, “her provocative writing has become ‘must read’ material for news and policy makers and avid political watchers.” In 2021, she published the book Resistance: How Women Saved Democracy from Donald Trump.
Rubin’s writings on the Supreme Court are honed by her 20 years working as a labor and employment lawyer in Hollywood. Now a self-described “recovering lawyer,” Rubin graduated first in her class at University of California, Berkeley. The Commentary editor Kohn Podhoretz called her “a phenomenon, especially considering that for the first two decades of her working life, she was not a writer or a journalist but a lawyer specializing in labor issues.”