SCOTT SIMON, HOST:
There was a brief flicker of amity this week when Republicans and Democrats came together to salute Ted Olson, the former solicitor general of the United States who died at the age of 84. Ted Olson was considered a lion by the conservative Federalist Society. He represented the George W. Bush campaign in the 2000 case before the Supreme Court that resulted in George Bush winning the presidency. As the administration's solicitor general, he defended many anti-terrorism policies, even as he warned they might be overturned one day. His wife, Barbara Olson, had died in the 9/11 attacks on a plane that crashed into the Pentagon. Later in his career, Ted Olson became an outspoken conservative voice for marriage equality. Cass Sunstein joins us now. He's the Robert Walmsley University professor at Harvard and lauded Ted Olson on X this week as the model of integrity and kindness and decency. Cass Sunstein, thanks so much for being with us.
CASS SUNSTEIN: Oh, thanks to you.
SIMON: You worked for Ted Olson early in your career. What was he like?
SUNSTEIN: He was fun. He was full of energy. He was in love with the law. He was in love with Ronald Reagan. He was in love with intellectual integrity. If the law allowed the president to do something, he would say that. If the law didn't allow the president to do something, he would say that. And he would do both with confidence and a certain amount of zest.
SIMON: How do you understand his view of the law?
SUNSTEIN: Well, he was a constitutionalist in the best sense. He believed that broad authority for the president of the United States was the correct understanding of Article 2 of the Constitution and thought that rights, broadly speaking, freedom of speech, freedom of action, that those things were embedded in the Constitution as well. And if that meant that property rights were robust, he would go there with enthusiasm. And if that meant that people got to marry those whom they loved, he would go there also with enthusiasm.
SIMON: He was on our show in 2009 along with David Boies. They had been obviously adversaries in the Bush v. Gore case in 2000. They came together on our show and in court to argue in favor of overturning the California referendum against same-sex marriage. This is what Ted Olson said at that time.
(SOUNDBITE OF ARCHIVED NPR BROADCAST)
TED OLSON: Marriage is a conservative value. Of course, it's a liberal value, too. I'm not taking sides when I say that, but for people who love one another and want to be in a stable, committed relationship, that's a good thing for the community. That's a good thing for the body politic. It's good for the economy. And I think more and more people who are conservative are recognizing there are gay people. There always will be gay people, and we want them to participate equally in the rights that we have. That is good for all of us.
SIMON: What do we hear in that section of Ted Olson's character?
SUNSTEIN: There are two things, I think. One is his conservatism. So marriage is a time-honored institution, and for Ted, who lost his wife under tragic circumstances and found love again, this is something that was sacred to him, I think. And the second is an idea about liberty. And if two people love each other and want to get married, he thought that's part of their freedom.
SIMON: Cass Sunstein, what might people on all sides of a question learn from Ted Olson's life and work today?
SUNSTEIN: I think two things. One is laughter, that that is a great connector. Also respectful engagement. Ted, of course, would disagree often with the left, most often with the left. But sometimes with the right. I had a bunch of disagreements with him when I was a young lawyer working for him and also over the years. And when we disagreed, he would always have a sense that, you know, while he was right, he thought the other person deserved respect, and there was some chance the other person was also right or had at least some truth on their side. And that form of respectful engagement can often lead to productive interactions and friendship across difference.
SIMON: Harvard's Cass Sunstein speaking of his friend, Ted Olson. Thank you so much for being with us.
SUNSTEIN: Thank you. An honor and a pleasure.
(SOUNDBITE OF MAKI NAMEKAWA'S "ETUDE NO. 2") Transcript provided by NPR, Copyright NPR.
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