Most of the attention focused on the oral advocates in Obergefell v. Hodges, the same-sex compendium hitting the Court’s oral argument docket later this month, has focused on who will take the oral argument for the Petitioners. It’s a historic case, and everyone reading the tea leaves says that same-sex couples in all 50 states will be able to marry sometime around June 29th. Roberta Kaplan of Paul Weiss won Windsor v. U.S., and she’s therefore arguably the temporary acolyte for “gay-rights Thurgood Marshall.” But let’s be real—whoever scores the big hit in Obergefell is going to be a legend. This one’s different from the victories that Justice Ginsburg won for women as a litigator in cases like Frontiero—she was so brilliant that nobody even knew what she was going for at first. Not here—this is the high noon showdown that people gather to watch at 11:15am. No wonder everyone fought to death on who would argue for Petitioners and eventually settled on Mary Bonauto, a legendary gay-rights litigator who is an easy consensus choice. If (when) the Petitioners ring the bell in Obergefell, she’ll have a lot of morning talk shows to visit.
Which leaves the less obvious question—who do you call to argue the other side? If there are so many social, political, legal, and academy pressures to argue the petitioner side of a case, then who would step up to get battered by at least five justices?
The answer, scarily, is “easily the most talented lawyer in the country who hasn’t yet had his forty-fifth birthday.” John Bursch is arguing the case for the Respondents (the states of Michigan, Ohio, Indiana, and Kentucky), and he’s the scariest lawyer that most people have never heard of. From the sneakily-excellent Minnesota Law School, Bursch clerked for the Eighth Circuit and quickly pushed himself into the upper echelon of Midwestern appellate law. He was appointed as Michigan’s Solicitor General, which coincided with a several-year span where Michigan spawned multiple deeply-important constitutional and federal statutory challenges. As a thirty-something, he suddenly found himself as a prime player in front of the Supreme Court.
Bursch’s heyday—up until late April—came in Schuette v. BAMN, which I’ve discussed here before. The petitioners’ challenge asked whether Michigan voters could permissibly pass a ballot initiative ruling out race as a factor in college admissions. This was an affirmative action debate, but procedurally turned on its head. Bursch briefed and argued the case brilliantly. He came out firing in his brief, offering a gorgeously simplistic framing: “It is curious to say that a law that bars a state from discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race and sex.” Br. for Petitioner at 4. The rest of the brief is luminous, and the oral argument was every bit its equal—Bursch walked in with multiple routes to a win, abandoned and pressed them as called for, and generally gave himself every chance to secure a victory. It’s the single best oral argument I’ve heard (though that comes with a caveat—ranking oral arguments without audiotapes of Robert Jackson is like ranking NBA players without full video footage of Bill Russell). The point is, Bursch is the single advocate in the country that scares me in Obergefell—even Clement showed that he couldn’t throw bones with Justice Kagan in the Windsor orals, when Kagan thoroughly stumped him with a question about the House’s stated intent to express displeasure with homosexuality in passing D.O.M.A.
Bursch’s tack in the same-sex marriage cases will be interesting. In essence, he’s playing with house money—Mike Huckabee and Rick Santorum may be the only Americans who expect the Sixth Circuit states to prevail. There’s a certain freedom that comes from arguing a thoroughly lost cause. But Bursch is going to exploit the few cards he has left in his hand. He was the counsel of record when Utah challenged the 10th Circuit’s overruling of Utah’s same-sex marriage ban, and filed a cert petition trying to bring that case before the Supreme Court. Bursch plucked the federalism string like John Calhoun—he was literally three sentences into his cert petition before quoting Justice Kennedy’s Schuette opinion and its exhortation that state citizens are entitled to “act through a lawful electoral process.” Herbert v. Kitchen, Cert. Pet. at 3. But he made some curious choices too—the cert petition hammers Washington v. Glucksburg, an assisted suicide case that, while speaking to state sovereignty, doesn’t carry the hard-hitting emotional valence you’d want when trying to gut-punch a swing vote. See id. at 3-4. At its core, though, the petition fundamentally keyed off of Justice Alito’s brutal Windsor dissent, which effectively re-framed the marriage equality debate as a philosophical squabble between equal and competing intellectual camps.
I think Bursch is probably already the second-best lawyer in the country, and I think he’s learned since the Kitchen petition. I think at oral arguments, he retains the twin cores of his argument—federalism, and the Alito Windsor argument. God willing he drops the Glucksburg line, Justice Kennedy is not going to be scouring prior opinions when deciding a case of this magnitude. Compare Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992), with Lawrence v. Texas, 539 U.S. 558, 586 (2003) (excoriating Justice Kennedy’s tenuous relationship with stare decisis). But I really think he shows up to play. It’s my second straight West Wing reference, but—if we get John Bursch, the scared Midwesterner defending criminally unpopular statutes, then this may be a blowout. But if we get John Bursch, the Solicitor General of Michgan and the lead-off hitter for the next Republican president’s SCOTUS short-list, in the most important case of his life—it may be a sight to see. I think the Obergefell petitioners probably deserve to win, but I want to see a barnburner in the meantime. Root for Bursch to show up, and getcha popcorn ready.