>> charlie: all eyes were on the supreme court last week as it considered two cases involving same sex marriage. the justices heard arguments for and against the defense of marriage act and california's same-sex marriage ban, proposition 8. david boies was the colead counsel on the constitutional challenge of proposition 8. he has been at the center of the legal battle for same sex marriage since he and ted olsen first argued against the california law together in 2009. i am pleased to have david boies back at this table. welcome. >> thank you. charlie: i thank you for doing this because i want to give some sense of context and body to it. tell me the significance of the moment. these two cases being argued in the supreme court. >> i think one of the significances is just to think of how unlikely we would have

thought this would have been four years ago. four years ago, to be on the verge of really quality for gay and lesbian citizens was unthinkable. we still had don't ask don't tell. you had 38% of the american people supporting marriage equality. you had a whole series of states that prohibited gays and lesbians from marrying. new york among them. today don't ask don't tell has been repealed. we have marriage equality in new york. and 58% of the american people and 80%, more than 80% of citizens 30 and under support marriage equality. it's been a seismic shift. it has been one of the most rapid movements, advances, in any civil rights movement in history. >> charlie: how did it happen so fast? >> i think it happened in a variety of ways. i mean, for one thing, it

happened with the youth. i mean this is a bottom-up revolution. >> charlie: it didn't make sense to them that same-sex marriage doesn't... >> they grew up, unlike when we were young, we didn't grow up knowing a lot of gays and lesbians who we knew were gays and lesbians. we knew a lot of people who were gays and lesbians but they had to keep it hidden because the discrimination was so awful in those days. not growing up knowing people makes it easy for you to be suspicious of them. makes it easy for you to discriminate against them. it's hard to do that when you know somebody. it's hard to do that when your friends and you know your neighbors, your doctors, your lawyers, your teachers, your cousins, your children, some of them are gay, some of them are lesbian. and our children and our grandchildren have grown up knowing people who were gay and lesbian openly. they know that they're just like everybody else. in that kind of environment, it's very hard to discriminate.

and the danger that we face is when we go to court is we're going to court in front of judges that are your age and my age by and large. once we have people in positions of power that have grown up in this non-discriminating generation, all this will go away. our goal is to make it go away now so that the people who are being damaged, harmed, terribly harmed, deprived of some of the most basic rights that we all take for granted like the right to marry the person you love, don't have to continue to suffer until we wait for that next generation to take over. >> charlie: here you have the supreme court hearing two cases. knowing where the public opinion is, which is fascinating to me. now, do you accept that sometimes people make a comparison between these two cases and brown versus board of education? >> i think... charlie: the great civil rights case. >> i think brown and board of

education or loving against virginia that came out of virginia where the supreme court held that states could not ban interracial marriage. >> charlie: right. and this is the same kind of discrimination. and the state laws that banned interracial marriage were held to be unconstitutional by the supreme court even at a time when 64% of the american people thought interracial marriage was wrong. this is not something that ought to be decided by votes or polls. the reason we have a written constitution is to protect these kinds much fundamental rights. >> charlie: how did you get involved? >> i got involved when ted olsen, who of course was on the other side in bush v gore and is a close friend of mine called and asked if i would be interested in taking this case on. i immediately said i would. >> charlie: how did he get involved? >> he had been asked by rob reiner and michelle ryaner and

chad griffin onothers who had formed the american foundation for equal rights in the wake of proposition 8. looking for a way to challenge proposition 8. >> charlie: proposition 8 says what? >> proposition 8 in california saidw3 gays and lesbians could t marry. you could only marry somebody of the opposite sex. and the supreme court of california had previously held that gays and lesbians were entitled to marry. that you could marry anybody of either sex that you wanted to marry. that was a basic right. proposition 8 amended the california constitution. and it was that amendment to the california constitution that we challenged under the united states constitution. >> charlie: because they have a vast use of referendums in california to change laws and do what they want to do. >> and even amend the constitution. >> charlie: rob reiner decides to do what? >> decides to try to see whether

this can be challenged under the federal constitution. he's talking actually he's talking at the lounge in los angeles and somebody overhears him saying we really need to get a conservative lawyer who will take this on. to show that it's not just a liberal idea. somebody overhears that and comes up and says, you know, my former brother-in-law ted olsen might be your man. rob said, well, he's the devil. >> charlie: because he was a big gore guy. >> he jokes about how ted put him in bed for two weeks. after the way that was handled in the supreme court. and so he was... thought that was unlikely but thought it was worth pursuing. and ted has been a strong supporter of equal rights for a long time.

he and i approach this maybe a little bit differently but we both get to exactly the same place which is every citizen deserves to have equal rights and the constitution guarantees every citizen equal rights. and he believes that at least as strongly as i do. and so when it was presented, should gay and lesbian citizens have the right to marry that every other citizen has, he came immediately to the conclusion that they should. as i did. and so it was a natural marriage, if you will. >> charlie: just a moment of history. you and ted in gore versus bush or was it bush versus gore. >> it was bush versus gore. bush was trying to stop the vote count. >> charlie: and ted won that case at the supreme court. >> he did 5-4. charlie: by a 5-4 decision. that one you lost but you two had been friends. >> yes. charlie: they go to ted and say, would you do this?

and he says? >> he says i will. he thinks about it a while but then he says i will. >> charlie: i'll take it to the supreme court for you. what you have is people challenging... who are the plaintiffs? >> we have four plaintiffs. we have a gay couple and a lesbian couple, been together each of them for more than a decade. chris and sandy are raising four children. and they just want what every couple in love wants to do which is to marry the person that they love. one of the things that was extremely moving during the trial was we put these people on the stand. the very first witness i put on the stand, i asked, you know, why do you want to get married? and the answer was because i love him more than i love life itself. and i won't feel complete until

we're married. you could have heard a pin drop in the courtroom. and what i wish is that every appellate judge that sits on this case could listen to that testimony, not just read it in the cold transcript but see it on videotape and it was videotaped but the courts ruled we couldn't release the videotape. >> charlie: just another moment of history. so ted accepts the case. >> yes. charlie: i'll take it to the supreme court for you. i'll take it wherever necessary. but we need a good democrat. and my friend david boies is the guy. >> yes. charlie: and ted comes to you. >> yes. charlie: and you say immediately yes? >> immediately yes. charlie: i'll do it. i'll do it. charlie: then you win. and the court... the district court judge says it's unconstitutional. >> yes. charlie: right. and then who appeals it? >> well, then what happens is

that the attorney general, the governor of california who were defendants in the district court case because they were... >> charlie: a case in which you were representing the plaintiffs. >> we were representing the plaintiffs because they were enforcing proposition 8. once they lost, they decided they wouldn't appeal. they would accept the district court decision. so, the proponents of proposition 8, the people who put it on the ballot in the first place, tried to appeal it. and there's a real question as to whether they had the right to appeal it or not. but the federal court of appeals gave them that right and listened to their appeal but decided against them. and 2-1 upheld the district court's decision that proposition 8, the ban on same-sex marriage was unconstitutional under the federal constitution. >> charlie: and then it was appealed to the supreme court. >> then it was appealed to the

supreme court. what happened last week is the supreme court heard that appeal, and the next day heard the appeal of the so-called defense of marriage act case, doma. that prohibits the federal government from recognizing gay and lesbian marriages even when they come from states that have authorized them. so in the d.o.m.a. case this congressional statute says we will not give tax benefits or social security benefits or other kind of federal benefits to gay and lesbian married couples even though they're legitimately and properly wed under the laws of the state in which they live. we are going to deprive those people of their rightful benefits. >> charlie: this was legislation passed by congress and signed by president clinton. >> 1996. charlie: -hea now said that

he supports the fact that it ought to be declared unconstitutional. >> yes.çó charlie: so you went to the supreme court. ted olsen makes the argument. you and he had prepared together. what was preparation like? >> well, one of the things that you do when you prepare for any appellate argument is you spend a lot of time reading the cases and a lot of time familiarizing yourself with theñr evidence. so that you are in a position to answer whatever questions come at you either from the other side or from the court. and when you're in an appellate court, you only get a limited amount of time. i mean, we only had a limited amount of time in the federal court of appeals. we only had a limited amount of time in the supreme court. and you want to be able to make your points really directly and concisely. you don't have a chance to look it up and you don't have a chance to come back afterwards. so what you're trying to do is you're trying to be so prepared

that no matter what they ask, you're able to give a crisp and accurate answer without taking... >> charlie: where were you when ted make the argument? >> at the counsel table. charlie: the two of you at the table with the people who had been part of the appeal process or just the two of you? >> just the two of us. although we had right next to us the solicitor general of the united states. >> charlie: who came on board as? >> as a friend of the court. and who argued on behalf of our position, told the court that in the view of the administration, proposition 8 was unconstitutional. >> charlie: how important was that? >> i think it was very important. >> charlie: why? well, i think it was important in two respects. one, it's all important when the solicitor general comes into court on your side because the solicitor general has an enormous reservoir of respect.

the solicitor general's office is very careful with the positions it takes. conservative side on some positions but in part because of that, it has a lot of credibility with the court. so that the solicitor general's office is always an important ally if you can get them to come in. in this particular case, i think it was even more important because i think that if they had not come in, given the fact that the administration was so strongly in favor of marriage equality, if they had not come in and argued for the unconstitutionality of proposition 8, there is a danger that some of the justices would have thought that even the administration had favored marriage equality was saying that the court should not get involved in establishing it. and so i think that if the administration had stood on the

side lines, it might have actually been a negative not just a neutral thing. >> charlie: and how did you get them to come on board? >> we sat down and reasoned with them. >> charlie: on the law or the facts? some reluctance at first? >> i didn't sense any reluctance but on the other hand i didn't really sense anything. they don't give you a lot of hints about how they're going to come out. they listen to you. >> charlie: when the justices started asking questions, firing them one after the other, what? >> and sometimes overlapping questions. sometimes answering. sometimes to give you a sense of how involved they were, sometimes a justice would ask a question ostensibly of one of the lawyers and another justice would answer the question. >> charlie: who surprised you if at all? i mean, because you have game-planned this thing pretty hard but at the same time you never know how nine different

people, eight, are going to come at something. >> because justice thomas typically doesn't ask questions. i think that if there was a surprise, i think it was that there was a number of justices, both from those that you would consider maybe on the conservative side and those that you might consider on a lot of issues on the liberal side, who were questioning whether the supreme court should actually have taken this case at this time. >> charlie: that surprised you? it did. because it is usually the case that once they take the case they're proceeding directly to the merits. they're not sort of thinking about possibly... there is a procedure that is employed. it's not rare. it's not usual either. it is called dismissing a case

on the grounds that it was improve dentally granted. >> charlie: wouldn't that happen before argument? >> no, no,. charlie: this would only happen in argument. >> it could happen after argument. it could happen before argument. but essentially what they say is having either read the briefs or maybe read the briefs and listened to the argument we've concluded that this is too early for this court to decide this issue. remember, this comes up to the court on a writ for certiorari. and the court doesn't have to take this case. the court could decide, we're going to have different circuit courts address this issue. we're going to learn from their analyst he's and then we're going to take the case. that's often what happens. >> charlie: what if the court says, the court of appeals'

decision, we've looked at their decision. we decide we're not going to take this case. then the court of appeals' decision stands. >> absolutely. charlie: what if they decide now and can they decide now these... they didn't have standing to appeal. >> yes. now that's an interesting question. because if they decide there was no standing to appeal, then it goes back to the district court because if there's no standing to appeal to united states supreme court there was no standing to appeal to the court of appeals. therefore, the court of appeals' decision is vacated because there was no standing to hear it. and the district court decision... >> charlie: stands. ... stands. now, of course, in either case, you get marriage equality in california. but the difference is that if there's no standing, it is only the district court opinion that exists whereas if they dismiss

as improve dentally granted the court of appeals decision would be the operative decision. >> charlie: what do you make of justice ginsburg's often-repeatedñr quote that the roe versus wade happened too fast. >> remember what she was saying was not that roe v. wade wasn'ti decided correctly. >> charlie: she said that. i agree with the judgment. >> i agree with the judgment but what she was saying is that the way it was expressedñi, it madet seem like they were establishing a new right. they were acting more like a legislature than a court. the difference here is that we're not asking the court to establish any new right. the court has said 14 times in the last eight years that marriage is a fundamental right. they've said you can't deprive

it, even if people are convicted of a crime, even if they are convicted of a crime relating to a prior marriage. it's such a fundamental right that you can't deprive people of that right. the only question is whether states can discriminate against gays and lesbian citizens saying felons can get married. everybody else in the world can get married but... >> charlie: as long as it's a man and a woman. >> ...>!( long as it's a man and a woman. the justices were very active in the case, as i say, sometimes even responding to each other which is very rare. on the other hand, we saw that in the recent case involving the constitutionality of the voting rights act extension. so, i mean, i think with a case that so engages the justices you're going to see perhaps more of that. >> charlie: the fundamental question they're asking in the proposition eight case is, was

the... was proposition 8 unconstitutional. that's the question they're asking. >> that's the fundamental question. is proposition 8 unconstitutional. is it unconstitutional for a state to prohibit gays and lesbians to marry a person of the same sex? is it unconstitutional to say you can only marry somebody of a different sex? just as the court in loving had to answer the constitutional question, is it constitutional for a state to say you can only marry somebody of the same race. >> charlie: help me on this because on the d.o.m.a. case, are they asking themselves whether the federal government has any business getting involved with marriages because that's the business of states? >> yes. that's the second question. the d.o.m.a. case raises two interesting questions. one is the fundamental question that's involved in our marriage equality case which is, can the government discriminate against gays and lesbians based on their

status? the second question is, can the federal government interfere with what's always been considered to be a state's issue in terms of defining who is married and who is not married? as long as the state doesn't discriminate in making that decision as they did in loving, for example, and as we say they do here, the states traditionally have been free to regulate marriage as long as they don't discriminate. so the d.o.m.a. case raises the question of should the federal government involve itself in marriage at all in terms of legislation? >> charlie: what's your opinion on that? >> i think that the d.o.m.a. case is going to hold d.o.m.a. as unconstitutional in terms of depriving gay and lesbian

married couples... >> charlie: i thought the issue was whether the federal government had any business getting into that? >> that's the issue. that's exactly the issue. you see, if you have married gay and lesbian couples, people who are unquestionably married under the laws of their state, what the d.o.m.a. case asks is can the federal government deprive those married couples... >> charlie: ... of certain benefits. >> ... of certain benefits that every other married couple gets. >> charlie: when you look at the public opinion here, does it have an impact? there were references to it by the justice s. there was. >> charlie: we all know where the public opinion is. >> i think that public opinion probably has some atmospheric effect. it's not analytically relevant. plessy v. ferguson was wrong even though it was easier to decide brown against board of education in 1954 than it would

have been in 1898. the japannese enterment case was wrong. the supreme court has held even though it took place during world war ii when there was a lot of anti-japanese sentiment. the court ought to enforce the constitutional rights even when it's unpopular. maybe particularly when it's unpopular. but i think the fact that public opinion has shifted so much makes it easier perhaps to enforce these constitutional rights. >> charlie: the constitution then has meaning outside the courts. >> it does because the courts h.i.v. in our society. they're influenced by our society, and i think that's always a part of the atmosphere. you hope and almost always not always not often enough but almost always you hope they really do enforce the constitution. every now and then they get it

wrong. and people suffer as a result. >> charlie: but it's the courts in the end who defend individual liberty. >> it is. it has been the courts that have advanced individual liberty throughout our lifetime. >> charlie: this is the biggest... you've been in some big cases. a case that elected a president, some say. this is the biggest, would you say or not? >> i think in many ways this is the most important case i've ever been involved in. >> charlie: most important because it had to do with the liberty of so many people to be married and have... and enjoy all the benefits that that brings. >> this is the defining civil rights struggle of our current generation. when i went to mississippi in the 1960s, that was the defining civil rights issue. in that generation. but this is the defining civil rights issue of our generation. and when we win this issue, we will have eliminated the last

bastion of official discrimination by the government against its own citizens in this country. if you look back... >> charlie: say that again. we'll have eliminated the last bastion of discrimination... official discrimination by a government against the citizens of its country. there's nothing beyond this? >> if you look back 100 years ago, you had governments discriminating against women. governments discriminating against african-americans and people of other races. you had a whole series of discriminatory laws that were in place. one by one the courts have struck those laws down. and today with some exceptions in terms of gender, almost all of those laws have been struck down. and the most important and

essentially the only pervasive set of laws that continue to discriminate official governmental action discriminating against american citizens are the discriminatory laws against gay and lesbian couples. >> charlie: what decision would you like for the court to make in the prop 8ñi case? >> i'd like the court to hold that all americans, wherever they reside, deserve to be able to marry the person they love. >> charlie: it's unconstitutional for any state. >> it is unconstitutional for any state to deny that. now that's one way the court could decide it. there are a number of narrower grounds that the court could decide this case on. and sometimes courts will in a constitutional case decide it on the narrowest possible grounds, leaving to another day a broader

decision. and that could happen in this case. >> charlie: you prefer the other? >> i'd like to see this done now. >> charlie: and... it's really time, charlie, pastime. >> charlie: in the d.o.m.a. case, just declare that unconstitutional. >> yes. charlie: what's next after that? >> i think you'll have for some period of time social discrimination just as we've eliminated discrimination against african-americans, there's still a lot of social discrimination that we've got to deal with as a society. but once you have eliminated... >> charlie: the dell. ... the legal discrimination, you've taken a big step forward. because the legal discrimination is not only particularly harmful but it also sends a message that somehow the people that the government is discriminating against aren't right, aren't okay, aren't equal, aren't the same as us. when the government said black

children and white children have to go to separate schools, they were sending a message that black children weren't as good as white children. the supreme court recognized that in brown against board of education. they recognized that that was a badge of inferiority, that it harmed those black children throughout their lives. when governments say gays and lesbians cannot get married because they are gay or because they are lesbian, they are sending a message to everybody else that says we the government don't think these people are okay. we don't think these people are like us. we don't think these people are good enough to enjoy the fundamental right of a marriage. and that not only is terribly harmful in itself to gay and lesbian couples and to the children they're raising. it's terribly harmful because it formates additional social discrimination because of the message it sends.

>> charlie: is that the legal basis on which you made the argument of prop 8. >> that's the argument. going back to the the statute. the question is whether there is an implementing provision in the 14th amendment that gives congress the power to implement it, and the question is whether that statute would be within the implementing power granted congress under the 14th amendment. >> charlie: do you think so or not? >> i think probably but i think that's an interesting question. i think that there's no question that the courts have an obligation to do that. whether the congress has the power to do that i think is a more interesting question. >> charlie: when you look at this and the impact to this and rob portman, because of his son, said i've changed my position. i'm for same-sex marriage.

you also had the president of the united states say that and the former secretary of state hillary clinton say that. they were recent converts. >> i think that's right. and i think what's happened is what you're seeing is, you know, the emperor has no clothes phenomena. four years ago people thought that gay and lesbian marriage was somehow marginalized. it was unusual. it was unexpected. what's happened is people have stepped back and said, well, why? what's the reason? why can't these people have the same rights as everybody. >> charlie: what's interesting is that there were some members of the gay community did not want to see this issue pushed because they thought it would endanger other initiatives that were more important to the progress of civil rights for gays. >> absolutely.

when we brought this lawsuit, there were a number of well respected, well regarded leade leaders... >> charlie: in the gay community who said what? who said this is too early. there is a danger that by pursuing this now, you will create a back lash, that you will get court decisions that december parnlg gay and lesbians. and that that will harm us. in ear areas. >> charlie: and you listened to these arguments and decided what and how? >> well, i think we decided three things. first, we decided this case was going to be brought. somebody was going to bring this case. and if somebody was going to bring this case, it ought to be somebody like ted and myself who were experienced at this kind of litigation and had behind us the resources of our firm.

the firms have devoted enormous amount of resources to this case. we built a trial record that very few law firms would have had theñi resources to develop. and so we wanted this case to be done as well as it could be. we believed it was going to be brought. we didn't believe there was an option to just wait. the question was, who is going to bring that case? we thought we were the right people to bring it. the second thing, we thought that just bringing the case and building the record that we were going to build would advance the broader discussion. i think we were right about that. >> charlie: the broader discussion of? >> of equal rights. i think that when people saw ted olsen and myself on the same side arguing for marriage equality, they began to rethink that issue. they began to think, well, maybe it's not so...

>> charlie: people who been opponents on big issues have come together on this issue. it's a powerful statement of an idea whose time has come. >> exactly. also there's a certain novelty in the two of us being together, the kind of odd-couple novelty that made people listen to us. when they listened, this is an issue that i think when people listen there's only one way they can come out. if you approach this with an open mind and an open heart and listen, i don't think people can come out two different ways because there isn't any other argument on the other side. all the other side has is a bumper sticker. marriage is between a man and a woman. that's not the answer. that's the question. there's a third thing though. that is i think we're going to win this case. i thought it then. i think it now. i think this is the right time. >> charlie: how do you define winning? >> that our clients get to get married in california.

>> charlie: yeah, but even if they said there's no standing and it goes all the way back they still get to get married. >> yeah. one-sixth of the united states then has marriage equality. it's not the end of the battle. >> charlie: one sixth. that many states have... >> you take, there's california... it's more actually, worn one sixth between california and new york but california has more than 10% of the population of the entire united states just in california. so if you establish marriage equality in california, that's a big step forward. just a step. it's not the end of the battle. jeff dubin in the new yorker wrote that the war is over but there are a lot of battles still to be fought. i believe that to be true. i think that you can tell by the polls, the demographics where this country is going. but there are going to be a lot of battles. >> charlie: legal battles or battles simply in terms of changing the minds of people. >> i think both. i think both.

because unless we win it with a 50-state ruling, there are going to be other states that are going to have to confront this issue. >> charlie: you have to fight them state by state, right? unless somebody brings another case that is different. >> you could have... you probably don't need to go state by state but you do need a case that doesn't have the california-specific facts that led the ninth circuit to issue a ruling that was limited in california. >> charlie: what's your nightmare? >> nightmare is you lose. charlie: bull you lose in the sense... if you lose, how does the court make a decision like that? >> i don't know, charlie. i just... i don't know how the court could make a decision like that. on the other hand, i lost a case... >> charlie: bush versus gore. about a decade ago. i was thinking about bush v gore, about a decade ago that i didn't think i should lose.

>> charlie: why didn't you think you would lose that? >> i didn't think that the supreme court was going to intervene and stop the voting. that they were going to for the first time in at least over 100 years and really the first time that the court as a court ever did it, step in to decide a presidential election. i particular leap didn't think they were going to do that before they had even given florida a chance to count the votes before they had given the florida courts a chance to sort out the issue. then i didn't think after having decided that they disapproved of the way it was being done, they would have said florida doesn't get a chance to continue under the right standards. >> charlie: so just to understand you, so i mean you were surprised because they did do all those things. would you normally... knowing what you now know, would you have made a different argument? >> no, i don't think you could make a different argument. i don't think so. i think if you read the reporting that has been done

after the fact where judges, justices' clerks were interviewed and the like, i don't think that there was a different argument that could be made. particularly in the context that, remember, five justices voted to stop the vote counting. before there was even an argument, before any briefs were filed in the supreme court. the briefing and the argument came after the saturday afternoon decision to stop the vote-counting. so once they had taken that step, i think it was an uphill battle. it's never a foregone conclusion. you never give up. but it was certainly an uphill battle. >> charlie: was it a political decision? >> well, i think it was certainly a decision influenced by politics. i don't know of anybody, liberal

or conservative, who believes you would have had the same result if it had been gore v. bush. if gore had been ahead in the vote count trying to stop the vote counting, i don't think... >> charlie: you don't think they would have stopped it. this supreme court. you don't think this supreme court would have stopped it. >> i don't think that five-justice majority would have stopped... >> charlie: by definition you're saying that they made this decision based on politics. >> i think it was influenced. i think you can't take a judicial decision like that outside of the context in which it's rendered. do i think they genuinely believed that what they were doing was the right thing for the country? i do. i believe that... >> charlie: because they didn't want to see this prolonged? >> i think... charlie: is that the rationale? >> that's the rationale that

judge posner gives. >> charlie: from chicago. from chicago. and judge posner says that the rationale given by the majority doesn't make any sense. i think he's right about that. >> charlie: what was the rationale one more time? >> the rationale was that it violated equal protection because certain canvassing boards were deciding certain votes differently than other canvassing boards in other counties might have. there were a number of problems as justice breyer pointed out in his dissents with that argument including the fact that florida had four different kinds of voting machines and what kind of voting machine you had influenced whether your vote was counted much more than anything the canvassing boards were doing. so i think that the equal protection theory particularly

since three of the justices in the majority had said things about the applicability of equal protection laws that were quite contrary to the way the bush v. gore decision came down real i'm didn't hang together. but what judge posner says is that even though there wasn't a good legal rationale to do that, it was appropriate to do it in order to end the controversy. >> charlie: he says... posner says that... >> i'm oversimplify ago really thoughtful analysis. and i don't want to do that. but he argues that somebody needed to bring an end to the process, and the court was the right person to do that. the problem with that... >> charlie: do you agree with that? >> no, i don't. because the process was almost

over. we were within 36 hours of having the entire state recounted. when the supreme court stopped the vote-counting. >> charlie: do you think the supreme court did it when it did it because it knew that was the reality on the ground? >> well, the majority essentially said that. >> charlie: we're ruling now because we want to stop the voting. we have to stop the voting because it will be complete and make it more open ended. >> they said if we thin decide there was something wrong people will say george bush was not legitimately elected president. that's in the, you know, the decision stopping the vote-counting on saturday. >> charlie: there's a huge consciousness of what was happening outside the court. >> absolutely. charlie: and if in fact it had ruled the other way, let the vote continue, would al gore or george bush been president?

>> i think it would have been very close. i think most of the scholarship now indicates that probably gore would have won. certainly that's what... >> charlie: the suggestion by journalistic organizations as well. on both sides people say notwithstanding if all the votes been counted george bush would have been elected and would have won florida and been elected. >> there are some views on that. charlie: other people say... then it depends on what votes are counted, doesn't it? >> and how they're counted because this was a statistical tie. this was... >> charlie: 50-50. this was so close to 50-50 that human error in terms of how you count the votes can swamp the differential in terms of voter intent. it was a... it was such a close election that what was essential, in my view, was to

have it resolved in a neutral way, to have it resolved in the florida courts the way every other election has been resolved. >> charlie: was that your argument that the florida courts ought to handle this? >> yes. charlie: and their argument was? >> their argument was don't trust the florida courts. >> charlie: this is the argument of ted olsen. >> i don't know about at the. he had a much more sophisticated argument. but i think the basic pre-september was that you needed to have the supreme court intervene because you couldn't trust the florida courts. >> charlie: that was his pre-september or not? >> i think that was certainly on... that has to underlie a rationale because if you can trust the florida courts, that's where it all to be decided. part of the problem i have with the decision is they didn't even give the florida courts a chance

to finish the vote count and rule on the objections that the bush camp and the gore camp had. and decide whether the florida courts had really done it in a fair way that come ported with due process and equal protection. >> charlie: in the end, what do you and ted olsen disagree on how would you define the difference on this? >> we disagree on a whole lot of things. >> charlie: okay. but on bush versus gore, what do you disagree on? >> we don't really talk about it a lot. >> charlie: why not? well... charlie: why? because you're friends. >> we're friends. but it was a decision that had to be made one way or the other. the supreme court made it. i think in the early period, i think all of us felt that what

was important was to accept that decision and move on for the country. >> charlie: al gore made that decision too. >> al gore made that decision. i think in an extremely eloquent concession speech made that point. but i think we all believed that the right thing to do for the country was to move on. i think now with a little more... >> charlie: you don't believe that. >> i believed it at the time. i absolutely did. >> charlie: you don't believe the right thing to do was to have the supreme court make the decision. you believed the right thing to do was to have the florida courts handle, but that was been the supreme court's decision to allow that. >> what i believe is is the supreme court had to make a dispition. i believe that decision should have been to allow the florida courts to deal with it. >> charlie: you thought we needed a supreme court decision. >> yes. because that's the final arbiter. even if that decision is to say we're going to deny cert, we're not going hear the case. >> reporter: the election of the president is too important not to have a supreme court decision or a ruling of some kind.

>> i thought they ought to stay out of the mer is of the case. their decision ought to have been to leave it to florida. and they have left every election before and since. and as i hope they continue to do. >> charlie: this is painful for you. is it? a little bit? >> well, it is a little bit. i think the supreme court, for any lawyer and particularly any lawyer who believes in the advancement of civil rights is essential institution. it is the institution that has been most responsible over my lifetime for expanding the rights of people who have had their rights limited far too much, far too long in this country. so whenever the supreme court does something that i think

undermines its credibility to some extent, i think that's painful. i think it's particularly painful when you feel that the hydraulics of outside events are influencing it. and particularly when you think that there is a partisan divide that is influencing what's happening. so i think for all of those reasons, it was a very, very disappointing decision. i think in retrospect looking back and getting a sense of how much a difference it made to this country and to the world that george bush was inaugurated as opposed to al gore, i think that also is something that probably aggravates my

disappointment. >> charlie: hasñr anybody told u or has a justice told you they wished they voted the other way? >> no justices has ever told me that directly. >> charlie: have you heard that they have said that? >> i have. but as a lawyer, i discount hearsay. >> charlie: it's a rich life you have, my friend. >> it is. lucky life. >> charlie: to be able to be there and argue before the supreme court in an important decision like electing a president and then another important decision that has to do with guaranteeing rights to people because they want what all of us want. >> exactly. charlie: and to enable them to make sure, to set in motion the process so they can. as i listen to you, it is also

true, whether it is bush versus gore, whether it is the prop 8 case or the d.o.m.a. case or whether it is the supreme court decision about health care reform, they clearly -- i'm thinking of justice roberts now -- in some sense you feel that people come to this in good conscience. >> yes. charlie: but with a multitude of factors that affect how they come to interpret and make the decision they do. >> i think that's absolutely right. i think you really nailed it because every person on that court is somebody who is dedicated their life to serving their country. and every person on that court, every time they vote, they vote in good faith, good conscience trying, i'm convinced, to do what they believe is right for

for this country. and yet they constantly split. people who work closely together, as they do, have great abilities, as they do, great help, as they do, still divide sharply on these issues because, i think, the country divides on these issues and because these issues are so important. i think that one of the things that we need to do for the court and for this country is bring people back together again. to try to lessen some of those sharp divisions. so that you don't have predictable 5-4 majorities and minorities in major decisions like that. when people see the court dividing along predictable lines, when they see five justices appointed by republican

presidents holding unconstitutional statutes passed by democratic administrations, when you can see cleavages on the court that you can predict from case to case, i think that is bad for the court. i think it's bad for the country. >> charlie: david boies for the hour. thank you for joining us. we'll see you next time.

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this is "nightly business report" with tyler mathisen and susie gharib. brought to you by -- the street.com. interactive multimedia tools for an ever-changing financial world. our dividend stock adviser guides and helps generate income during the period of low

interest rates. real money helps you think through ideas for investing and trading stocks. action alerts plus is a charitable trust portfolio that provides trade by trade strategies. online, mobile, social media. we are the street.com. calling a time-out. stocks take a breath tore begin the second quarter. are dividend payers still the best pbet now? in rising tensions, what does he want, how big of an economic threat is he? baseball is back, but you can't guess what's helping boost the value of major league franchises big time. all that and more on "nightly business report." well, good evening. susie, maybe it was the manufacturing data today. maybe it was just time, but either way stocks took a bit of a day off.

>> on this april fool's. it was no joke, stocks starts the first day of a new month on a down month. investors turned cautious in reaction to the disappointing economic report. a key manufacturing gauge came in weaker than expected. the institute for supply managements index fell to 51.3%. the lowest level since december and well below estimates. any reading above 50 is a sign that american factories are expanding. wall street history shows that april is traditionally the best month of the year for equities but no sign of that today. the dow fell 5.5 points. the s&p fell 7 points. >> as susie just mentioned april is traditionally the best month of the year for stocks averaging a nearly 3% gain over the past 20 years and that's a good sign for investors. since the dow is coming off its best first quarter in 15 years, adding roughly 11%. so what usually happens after a strong first quarter? well, since 1950, there have been 12 other times