Photo by Stephen Voss.
As a veteran of the Solicitor General’s office and the Justice Department’s civil appellate team, Doug Hallward-Driemeier has handled his share of high-stakes appellate arguments, including many before the U.S. Supreme Court. But he admits to feeling the “additional weight” of the historic marriage-equality case of Obergefell v. Hodges, which he argued with fellow Lawdragon 500 member Mary Bonauto of Gay and Lesbian Advocates and Defenders (GLAD). Bonauto handled the question of whether the 14th Amendment requires states to issue same-sex marriage licenses, while Hallward-Driemeier (Harvard Law, 1994) took on the matter of whether the 14th Amendment requires states to recognize marriages of same-sex couples when performed legally in other states.
They prevailed on both issues in Justice Anthony Kennedy’s June 26 opinion, by a 5-4 vote, reversing a ruling by the 6th U.S. Circuit Court of Appeals. Senior staff attorney Chris Stoll of the National Center for Lesbian Rights contacted Hallward-Driemeier, the Washington, D.C.-based head of Ropes & Gray's appellate and Supreme Court practice, shortly after the setback at the 6th Circuit upholding gay-marriage bans.
Lawdragon: Why did the organization come to you?
Doug Hallward-Driemeier: Chris Stoll is a friend from college – we were both at DePauw University in Indiana together – and we were also at law school together. He knew that we had been involved in a large number of the marriage cases representing a group of amici, and so he knew we were generally familiar with all the issues but would not have any kind of conflicts. That's the kind of email that one responds to immediately. That was Friday evening, the day after the decision came down from the 6th Circuit, and by Saturday we had an associate team up and running and getting ready to draft the petition. We basically had to draft a petition for cert in four days.
LD: It sounds like it was an automatic “yes” for you. It wasn't something that you had to think about?
DHD: There was no question we would do it. This is an issue that is very important to me personally, and it's an issue that, as I said, the firm had been committed to for quite some time. There was no question that it would have the full support of the firm, and that indeed was absolutely the case.
LD: Why was it important to you personally?
DHD: I have many, many friends who are gay. I remember one very dear friend who was a groomsman in my wedding, and at the time my wife and I were very conscious of drafting our marriage vows and all the language in the service to be gender inclusive. Shortly after that, he and his boyfriend got engaged and had what was then called a commitment ceremony at a church up in Canada, and we went to that to celebrate with them. I remember him saying to me at the time, "You know, maybe one of these days you'll be a justice on the Supreme Court, and you'll be able to be the one to write the decision to extend marriage equality to all couples."
It's just been something that is personal in that way. I also have three children, and as a parent I want them each to have the full opportunity to find fulfillment in marriage as I have. It's also that, at a broader level, this is the kind of thing that I went to law school for – the idea that the challenge to live up to the promise of the constitution can be used to make life better for so many of our fellow citizens.
LD: With that much on the line, what were you thinking the day of or the night before arguments? I know all your cases are important, but were you particularly nervous or anything like that?
DHD: Well, I would say that I did feel the additional weight of this case. There were hundreds of thousands of couples and millions of individuals, all their family and friends, whose hopes were riding on this. But I’ll be honest: It was also a source of strength. I actually remember sitting in the courtroom while Mary Bonauto was doing her argument, and I sort of had this moment where I really felt the pressure. My body was really tense. But what I thought of was, “It's not the weight of all these people, it's their presence with me that I should be focusing on.” And I took real strength from that. In the end it was a huge help. I had friends who were out on the steps in a prayer group. I thought of them, and I thought of all my family and friends who were sending up their thoughts and prayers for me.
LD: Knowing the court as well as you do, and the justices, what stood out for you in terms of a key challenge or one thing you had to argue well without being interrupted too much?
DHD: I knew that it was going to be hotly contested. I knew there were going to be tough questions that were designed to trip me up to the extent they could, and those certainly came from expected quarters. But I also knew that it was important for me to turn those around and be able to state the affirmative argument – to really communicate the most important point of our argument – which was that the marriages of our clients are as fundamental to them and their lives as the marriages of the justices. What was terrific was that, in the rebuttal time, I was able to really convey that. I was able to take each of our plaintiff couples and tell each of their stories to illustrate and support that point.
I think I was able to forcefully communicate how important these marriages were, and how demeaning and damaging to them and the stability of their families these laws were. In Justice Kennedy's opinion, it's quite evident that he got it, that these couples are not trying to demean marriage, they honor it and that's why they want theirs respected.
LD: Did you walk out thinking you guys had won? Did that change at all or was it completely uncertain to you up until the day of the opinion?
DHD: I felt that we had put forward our arguments well. I was optimistic but I certainly was not confident. I was hopeful but until I was in the courtroom and heard him announce the opinion I wasn't counting my chickens.
LD: You touched on this a few minutes ago, but when you were in college or in law school, is this what you envisioned doing?
DHD: In one sense, it was the thing that inspired me to go to law school in the first place. It was the civil rights movement, and how legal lions like Thurgood Marshall had been able to use the law to vindicate rights. I always had thought of myself as likely to be an appellate litigator. I wanted to be a litigator, I wanted to be someone who was actively involved in cases, but it's always been the brief writing and legal argument that most interested me and where I felt I had the most to contribute. I've been very fortunate that early on I was able to get a position in the Justice Department that allowed me to develop those skills.
LD: What do you recall from your first argument before the Supreme Court?
DHD: I just remember being so nervous while I was up there that my throat got dry. And when I reached for the glass of water that they set next to the podium, my hand was shaking so much that I knew that I couldn't pick the glass up or else I would spill it all over the place. So I just grabbed back onto the podium and held on for dear life, as they say. I am now sufficiently comfortable in the court that I can stop and pick up the glass and have a sip of water. Of course, being there as often as I have, it does make a big difference just in terms of one's comfort level and knowing what to expect, and knowing the nature of the exchanges that you'll be having with the justices. It’s being confident that you can do that, including dealing with the difficult questions and steering them back to where you want to be.
LD: I know there are lots of good lawyers there, but was there anyone in particular at the Solicitor General's office that you really learned a lot from in terms of how to approach arguments and briefs?
DHD: The person who stands out for me at the Solicitor General's office is Ed Kneedler, who's the deputy on a large part of the civil docket and with whom I worked very, very closely. He's been there virtually his entire career. Both in terms of brief writing and advocacy, he is just such a consummate professional and good person, that I hope I can model his behavior and approach.
LD: Regardless of the court, do you have any routines that you do before every argument?
DHD: I do. My routine is that I go on a long walk. What I find is that I need to put down the paper and I need to push away from the computer. Instead of continuing to revise the Q&A or reread the briefs and opinions, at some point you just need to start thinking it through and vocalizing – at least in your head – how you're going respond to questions on the difficult topics. What I do is just go on a really, really long walk and do my own moot in my head. For the marriage case I didn't trust myself to do that by myself so I had a few of my colleagues go with me on that walk, and it was great preparation.
LD: Like 20 minutes or an hour? How long are you talking?
DHD: It's at least an hour but often a couple.
LD: What brought you back to Ropes & Gray after such a significant stint in government?
DHD: While I was in government I met a lot of what I regarded as refugees from private practice who had really not enjoyed their experience there and were running for cover. I had as an associate really enjoyed my experience, and I think that it had a lot to do with the culture here at the firm. When I was looking for a place to go, I knew enough not to take for granted that culture of teamwork and collegiality, especially when trying to build a practice without a Rolodex of clients. I knew I would only be successful at a place where people were really working together and happy to bring me in. It’s been successful beyond my most optimistic hopes.
LD: As you said, married, three kids – what do you do for fun? Do you do something fun during the summer?
DHD: I am a baseball coach currently for my youngest son's baseball team. I'm also an assistant Scout master so we go on campouts and things like that. We also try to find a little time to get away so that the kids spend some time with their cousins.