An Interview with Ted Olson

Episode Summary

Executive Summary: Michael Lewis memorializes constitutional lawyer Ted Olson, highlighting Olson’s Supreme Court career and his central role in Murphy v. NCAA, the case that invalidated the federal ban on state-authorized sports betting. Olson reflects on oral argument strategy, federalism, anti-commandeering doctrine, and how his legal victory reshaped sports gambling in America.

Main Topics: Ted Olson’s legacy and passing (Priority: 5/5): Lewis introduces Olson’s death and frames the episode as a tribute to a brilliant, complicated lawyer whose work ranged from same-sex marriage to Bush v. Gore to sports betting. First Supreme Court argument and courtroom dynamics (Priority: 5/5): Olson recounts his first Supreme Court case in 1983, Garcia v. San Antonio Transit, describing the pressure, preparation, and tactical complexity of arguing before nine justices. How Supreme Court advocacy works (Priority: 4/5): Olson explains how he studies each justice’s record, prepares for interruptions, and tailors arguments to a highly dynamic bench with limited time. Origins and strategy of Murphy v. NCAA (Priority: 5/5): Olson details how New Jersey sought to revive Atlantic City through sports betting, how the case challenged a federal statute, and why the anti-commandeering argument became the winning theory. Federalism and anti-commandeering doctrine (Priority: 5/5): The conversation centers on the constitutional principle that Congress cannot force states to implement federal policy, even when Congress could regulate the activity itself. Explosion of legalized sports betting (Priority: 4/5): Lewis and Olson discuss the post-Murphy growth of sports gambling, including increasingly granular wagers and the shift from underground illegality to regulation.

Key Arguments: Supreme Court oral argument requires meticulous preparation because justices interrupt frequently and each has distinct jurisprudential leanings. The federal government won Garcia v. San Antonio Transit, and Olson learned early how to argue separation-of-powers and federalism issues before the Court. Murphy v. NCAA was hard because precedent for anti-commandeering was sparse, and multiple lower-court losses made success unlikely. Congress could regulate sports betting directly, but it could not commandeer states into enforcing a federal policy it chose not to implement itself. Legalization and regulation of sports betting could reduce fraud, increase transparency, and generate taxation compared with underground gambling. New Jersey’s case was motivated by economic revival, especially for Atlantic City, not simply by ideology about gambling. The post-Murphy betting market has expanded far beyond traditional wagers into highly specific in-game bets, showing how quickly markets adapt once legalized.

Data Points: Age at death: 84 - Ted Olson died November 13 in Virginia. Year of first Supreme Court argument: 1983 - Olson’s first Supreme Court case was Garcia v. San Antonio Transit while he was an assistant attorney general. Cases argued in front of the Supreme Court: 65 - Olson states this total near the end of the conversation. Supreme Court oral argument time in most of Olson’s career: 30 minutes per side - He notes that for much of his career the Court allotted only 30 minutes to each side. Supreme Court current argument duration: A couple of hours - Olson says Chief Justice Roberts now allows more time in some cases. Number of justices: 9 - Olson describes the bench as nine justices in an arc around the podium. Lower-court losses in Murphy case: 3 times in district court and at least 2 times in the Third Circuit - Olson emphasizes how difficult the path was before the eventual Supreme Court victory. Only two recent Supreme Court cases on anti-commandeering: 2 - Olson says only two recent cases clearly articulated the doctrine before Murphy. Sports betting law age: 20 years - The federal sports-betting restriction had been in place for about two decades before being challenged. Case argued repeatedly before Supreme Court: 2 or 3 times in the Third Circuit and 3 or 4 times in district court - Olson describes repeated litigation before reaching the Supreme Court.

Pivotal Quotes: "It is a thrilling and terrifying experience." — Ted Olson: Describing his first time arguing before the Supreme Court. "the federal government cannot coerce states to do something that the federal government can do itself." — Ted Olson: Core constitutional principle behind the Murphy anti-commandeering argument. "If you can't explain it to a sophomore in high school in a sentence or two, then you've got to go back to work." — Ted Olson: Olson’s rule for simplifying and sharpening a Supreme Court argument.

Implications: The episode shows how one constitutional theory can transform a national industry. Murphy v. NCAA made sports betting a state-regulated market, and Olson’s account illustrates how federalism doctrine can have major economic and cultural consequences.