What Made Ted Olson Great

Ted Olson, who died of a stroke Wednesday morning at the age of 84, was a great man.

Most of the obituaries that have been published since his passing describe him as a conservative lawyer—“a legal luminary of the right,” said The Washington Post. And it’s true that he argued Bush v. Gore before the Supreme Court, winning the case for George W. Bush; that he worked in the administrations of Ronald Reagan and Bush, as assistant attorney general and solicitor general, respectively; that he was a longtime supporter of the conservative Federalist Society; and that he won the famous Citizens United case, which essentially removed limits on campaign spending. 

It’s also true that he was, without question, the finest Supreme Court practitioner of his generation, arguing before the court 65 times, and winning far more often than he lost. Indeed, one would be hard-pressed to name a lawyer in recent times with a career that came close to matching his.

But when I think back on Ted Olson’s life—when I think about what made him great—it’s not the Supreme Court victories or the other career achievements I find myself focusing on. Rather, it was his integrity.

That integrity informed his commitment to the American project, and above all else, his deep devotion to the Constitution.

In a speech he gave in November 2001—the inaugural Barbara K. Olson Memorial Lecture at the Federalist Society, named for his exceptional wife who had been on the plane that was flown into the Pentagon on 9/11—he put it this way:

“We do not claim that America has been or is not today without imperfections and shortcomings. Our Constitution was undeniably flawed at its origin. Implementation of our lofty ideals has never been without error, and some of our mistakes have been shameful. But the course of our history has been constant, if occasionally erratic; the progress from the articulation of those lofty ideals to the extension of their reality to all of our people—those who were born here and those who, from hundreds of diverse cultures, flocked to America’s soil because of those principles and the opportunities they promised.”

That was Ted Olson.

He spent his life fighting for those principles, immune to passing political fads.

His unyielding belief in free speech is why he took the Citizens United case—and it’s also why he represented a group of plaintiffs who were pressing for the Foreign Intelligence Surveillance (FISA) Court to make public its secret decisions. He defended the Dreamers—immigrants who had come to the U.S. as children and never left—because he believed that they made the country stronger and that their fate should not hang on a change of administration. He opposed affirmative action, viewing it as reverse racism.

Most famous of all, of course, he teamed up with the liberal lawyer David Boies to fight California’s Proposition 8—and legalize gay marriage. In a book he later co-authored with Boies about that case, he wrote, “That I was a conservative was. . . not the slightest bit inconsistent with my undertaking to overturn Proposition 8. Marriage is a coming together of two loving individuals to create a family, to seek stability, to work together, to share hopes and dreams, to build an economic unit, to provide mutual support, to help form a community. What could be more conservative than that?”

Kris Perry, one of the plaintiffs in the Prop 8 case, remembered Olson as a “warm, generous, sweet man,” who, she said, “wanted equality for us before I wanted equality for us. To me, it felt so impossible. But as we were preparing for trial, Ted was so adamant. He kept saying, ‘Shouldn’t you get to be happy too? Shouldn’t you have what I have?’ He always wanted what was best for us.”

I got to know Ted during the Proposition 8 case because my wife was working with his co-counsel. When I called Boies on Wednesday, the news of Ted’s death was still new, and Boies was shaken. They had just spoken a few days earlier. He didn’t really want to talk about Ted the lawyer, but rather Ted the person. 

“He was a person of absolute integrity, absolute commitment to principle. He took very seriously his obligation to the court and the justice system,” said Boies. “And,” Boies added, “he was a great friend, a warm, funny, and devoted person. I was on the opposite side of Ted in Bush v. Gore and on the same side in the Prop 8 case. And it’s a lot better being on the same side.”

To former attorney general Bill Barr, Olson will be remembered for helping shape the conservative legal establishment. “Ted was obviously a legal giant—brilliant, with practical prudence and strong convictions,” he said. “But above all else a decent, caring man, loyal friend, and generous mentor to many younger lawyers. He came to town with Reagan, and leaves behind a thriving conservative legal community which he helped build and which will always remember him.” 

Gene Meyer, the head of the Federalist Society, described his importance to that once-fledgling group: “From the earliest days of the Federalist Society, as a high-ranking DOJ official, he made time to speak at what was then an obscure gathering of students,” said Meyer. “The annual summer barbecues he hosted for students and others were legendary. His contribution and support helped make the Society what it is today." 

A few years ago, Olson was profiled by CBS Sunday Morning. The piece discussed Barbara Olson’s terrible death—fighting to the end, her last words were, “What do I tell the pilot to do?”—but also how his mother had urged him, at the age of 60, to get back on his feet and start dating. Which he did, marrying Lady Booth Olson—a vivacious woman who was quickly embraced by everyone in Ted’s circle, despite being a liberal. Olson described it to CBS as “a mixed marriage.”

But that also leads to a serious point. Olson could never understand how Americans could become so angry with each other over politics. “He was never an ideologue,” Boies told me, and it frustrated him that so many people on both sides of the political divide were so unwilling to listen to the other side. “In today’s world,” he told CBS, “people are so polarized, and there’s not a lot of time spent trying to think the way the other side thinks or try to express what the other side is expressing. . . I think it would probably be good for all of us.”

That’s what Ted Olson tried to do his entire life. Would that we could all follow his example. 

Joe Nocera is the deputy managing editor of The Free Press. Follow him on X @Opinion_Joe. 

Last year, Bari Weiss delivered the Barbara K. Olson Memorial Lecture. Ted sat in the front row. Read that speech, The Last Line of Defense. 

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