Two University of the Pacific alumni will be breaking a long-standing tradition in the U.S. Supreme Court this month will argue opposite sides of the landmark same-sex marriage case known as Proposition 8.

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Pacific News

Beating the Odds: Pacific professor, two alumni shine in national spotlight

Mar 14, 2013

The U.S. Supreme Court action this week on landmark same-sex marriage cases placed two University of the Pacific alumni and a faculty member prominently in to the national spotlight.

Justice Anthony M. Kennedy, on the faculty of Pacific's McGeorge School of Law for more than two decades, wrote the majority decision dismantling the 1996 Defense of Marriage Act and provided the swing vote in the 5-4 decision. Ted Olson '62 was one of two lead attorneys who argued that California's Proposition 8 was unconstitutional, while Andy Pugno, a 1999 McGeorge grad and lead counsel for ProtectMarriage.com, defended the 2008 California ballot measure that had banned same-sex marriage. The justices ruled on technical grounds that the court could not decide the Proposition 8 cases, effectively clearing the way for same-sex marriages in California.

Having a Supreme Court justice and two opposing attorneys with such close ties to Pacific is more than a footnote to the two historic Supreme Court decisions. Olson and Pugno broke a long-standing tradition in the U.S. Supreme Court as they stood on opposite sides of the landmark same-sex marriage case. A study of the Supreme Court and numerous articles indicate that the justices and most of the attorneys who present before the nation's highest court are graduates of prestigious Ivy League schools.

Time Magazine noted that every member of the Supreme Court except Justice Ruth Bader Ginsburg, who graduated from Columbia, is either a Harvard or Yale graduate. Other articles have pointed out that the majority of attorneys who present in front of the court also tend to come from those same schools or Princeton.

While there are no solid statistics readily available that estimate how many attorneys from the Ivy League circuit present before the U.S. Supreme Court, a study conducted in 1992 by Kevin McGuire and published in the American Journal of Political Science said that more than 50 percent of all attorneys registered to argue before the Supreme Court, come from Ivy League Schools. The study also said that most of the cases that come before the court are represented by a group of 200 attorneys who all live in the Washington, D.C. area, and nearly all those lawyers are Harvard and Yale graduates. Therefore, at least one of the two attorneys would typically be from one of the elites in any given case.

Pacific, however, was well represented in the nation's highest court during these landmark decisions.

In the seminal Prop 8 case, the constitutionality of the proposition was challenged. The law, which defined marriage as being only between a man and a woman, was passed by a majority of Californians in 2005. Officials believe it will be about 25 days before county clerks in California can begin issuing marriage licenses to same-sex couples.

Olson, a well-known conservative attorney who once represented President George W. Bush, filed a lawsuit challenging the law, claiming it violated California's Constitution.

Pugno, who served as the attorney for ProtectMarriage.com, defended the law before the courts, claiming that if the California voters approved it, then the law was constitutional. Both the California Supreme Court and the federal Appeals Court have since struck down Proposition 8.

Many pundits believed that the Supreme Court's decision on this case would be split along ideological lines, with only one justice as the "swing," or deciding vote on the case. It had been speculated that the swing vote would come from Kennedy, who has been a faculty member at Pacific McGeorge since 1965 and still teaches an annual summer course on constitutional law.

In the end, he voted on the dissenting side of the Proposition 8 case, meaning he felt the court could decide the constitutionality issue. The dissenters did not say which way they would have voted.

 

For more information about the domination of the Ivy Leagues on the Supreme Court, the following articles were used as references: Clarence Thomas breaks 7-year court silence, with crack about Harvard Law: Yale, Harvard Law Taking Over Supreme Court;  Lawyers and the U.S. Supreme Court: The Washington Community and Legal ElitesIs the Supreme Court Too Packed With Ivy Leaguers?