Cornell Law Prof. Dorf: Boies and Olson "Cautious Schemers"


Over at his law blog, Professor Michael Dorf criticizes Boies and Olson for their legal strategy, which he compares to Boies "too clever by half" losing strategy in the famous Gore v. Bush. (Maybe Ted Olson, who won that case, should have taken charge more?)

"Fast forward to the Boies/Olson strategy of only suing two county Clerks.  Could this have been a similar tactical choice right from the beginning, aimed at engineering precisely the situation we now have, in which a district court ruling of nominally limited scope ends up being both effective statewide and unreviewable on the merits?  If so, I've got to say that this strikes me as too clever by half.  Boies and Olson had a claim to the moral high ground in bringing this case when mainstream gay rights litigators (and their allies, including me) had been timid.  By directly making the argument that Prop 8 denies due process and equal protection, they signaled a refreshing willingness to make the strongest claim possible, and to let the chips fall where they may.  But in apparently manipulating the procedural doctrines for advantage, they sacrifice at least some of that moral high ground, making themselves look no less the cautious schemers than the organizations whose warnings they ignored in filing suit when and how they did."