Ted Olson

With respect to Michael's shout-out to members of the Federalist Society (yes I am!), Ted Olson's quip -- "I thought, why wouldn’t I take this case?  Because someone at the Federalist Society thinks I’d be making bad law? I wouldn’t be making bad law.” -- misses the point of those who are critical of his involvement in the effort to secure a declaration by judges that same-sex marriage is constitutionally required.  As Orin Kerr explains, here, the criticism is not that Ted is "making . . . law" that "someone at the Federalist Society" thinks is "bad", but rather that he is making arguments of a type that he has been rejecting and opposing for years:

What makes Olson's involvement in the same-sex marriage litigation so interesting — and among right-of-center lawyers, controversial — is that his position is relying on the kinds of constitutional arguments that Olson is personally so closely identified with rejecting. The Times story touches on this, but I would add a bit more detail. Those who have watched Olson's annual Supreme Court Roundups for the Federalist Society know how harsh Olson tends to be about judges who Olson thinks are constitutionalizing their policy views, especially when that means constitutionalizing social policies popular among elites. Olson hasn't just been critical of those who take a broad view of constitutional meaning in this setting: he has been dismissive and sometimes even brutal. 

The surprising aspect of the new case is that it has Olson making same kinds of constitutional arguments that he has specialized in ridiculing for so long. . .