When Boyden Gray hired me into his law firm in 2013, he had already entered the phase of life when many in our profession have given up law for the golf course. Not Boyden. His service as White House Counsel and Ambassador to the European Union was long past. He had left WilmerHale in 2005, not to retire but to unshackle himself from the conflicts-of-interest and internal politics that often determine what clients and cases a big firm is able or willing to accept. I had the privilege of working for Boyden as long as any lawyer in recent memory. Over those seven years and beyond, I came to appreciate the unique collection of experiences and traits that kept him practicing law until he died last weekend at the age of 80.
Boyden’s inimitable persona was shaped by a series of starkly contrasting life experiences that could never be repeated in the present day: he was a southerner educated at Harvard at a time when that raised eyebrows. He served as a law clerk to Chief Justice Earl Warren, the head of the notoriously liberal Supreme Court of that era, but his proudest accomplishment was elevating to that Court Justice Clarence Thomas, its most conservative member. Between the H.W. and W. Bush Administrations, he traded White House intrigue for European diplomacy. And for someone who did his most important work behind the scenes, Boyden seemed to relish the occasions when he could play what he called the eccentricity card—walking the family’s potbellied pig through the streets of Georgetown or joy-riding an inquisitive Washington Post reporter in a methanol-fueled car to steer the interview where he wanted to drive it.
His eclectic experiences and a willingness to buck convention made Boyden one of a kind in Washington’s legal community.
He venerated the genius of the U.S. Constitution, but Boyden was not your typical constitutional lawyer. The cases he cared about most deeply reflect his perennial concern not with any particular clause or amendment of the Constitution but with constitutional structure—the separation of powers and the principle of nondelegation. Chief among these was his long-running challenge to the unconstitutional structure of the Consumer Financial Protection Bureau (CFPB), a challenge that was eventually vindicated by the Supreme Court’s decision in Seila Law v. CFPB.
To those who say the exigencies of modern society make it impractical for Congress to do all the law-making and for the President to oversee all of its enforcement, Boyden would point to his own experience—the 1990 Clean Air Act Amendments in which Congress (with help from Boyden as White House Counsel) set pollutant-specific limits, and the Reagan-Bush regulatory reforms which (with help from Boyden as Counsel to the Presidential Task Force on Regulatory Relief) centralized White House review of the Administrative State. He loved to tell how Executive Order 12291 (the predecessor to 12866) was distributed to senior regulatory officials around a table in the Roosevelt Room of the Old Executive Office Building. They immediately began marking up and striking out the text, muttering and grumbling along the way, until they turned to the last page and saw that President Reagan had already signed it.
Unlike some constitutional lawyers whose preoccupation with theory clouds their attention to real-world facts, Boyden was also very much at home in the technical details of any given case or rulemaking—much to the chagrin of the associates and interns who struggled to keep up with his high-powered trains of thought, and the brave law students who enrolled in his wide-ranging seminars. Whether it involved fuels, pharmaceuticals, or financial instruments, Boyden had a penchant for delving into the engineering, scientific, or professional minutiae of the relevant industry. I watched Boyden explain the pollution effects of the internal combustion engine to a Mercedes Benz engineer. He cared deeply about the cost-benefit analyses agencies used to justify their rules. Many a morning found him with a cooling cup of coffee, intently turning the pages of a lengthy Federal Register notice, printed and bound in a gigantic three-ring binder for that purpose.
The newspapers invariably describe Boyden as an Establishment Republican, and surely no one was better known to the Republican establishment. Yet Boyden consistently advocated (and litigated) for legal policies that have fallen out of favor with the Republican mainstream: fuel regulation that would open the market to higher levels of biofuel, cap & trade systems for complying with air quality standards, and transatlantic regulatory harmonization, to name a few. In each of these policy matters, he was motivated by a sincere belief in its benefit to the nation as a whole—and not the least bit troubled if the conventional wisdom disapproved.
Boyden was the consummate Washington insider, yet he waged a career-long war against crony capitalism and agency capture by interest groups the agency is supposed to regulate. For Boyden, the Constitution’s all-important structural safeguards were undermined by anything that would give one faction—or one state—free rein to set national policy to its own advantage.
Boyden was a power broker at ease at the highest echelons of government, yet he firmly believed that the most important changes in society were effected not by centralized government, but by the People themselves, acting through voluntary associations—a perspective reflected in his own philanthropy.
To the outside, Boyden might have seemed obsessed by his professional projects, yet his familial affection was always just below the surface. His pride at his daughter’s accomplishments—in education, career, and family—was palpable. And his love, though buttoned up around the office, was impossible to hide. An illustration: Boyden was recognizable all over Washington for his dark eyebrows brooding over a good-natured scowl. (That joy-ridden Washington Post reporter described him as “a lean, 6-foot-6, ascetic-appearing man with thick bushy eyebrows who's given to striding around the White House like some stoop-shouldered Ichabod Crane with a somewhat distracted, professorial air.”) How—without scaring away clients—can one depict such a figure on a law firm website? Looking in vain for a sufficiently cheerful headshot, we discovered that Boyden’s warmest smile had only been captured in photos with his daughter. We threw out the professional photographer’s best efforts and settled on a family photograph—with Eliza carefully cropped out. That photo (which still appears on the Federalist Society’s contributor page) graced the firm’s website for years. When I visited Boyden at home in February for lunch, the photos with Presidents and dignitaries in his library had been demoted behind images of his grandchildren. As the father of a daughter, I felt a kinship with Boyden who always benevolently tolerated my own daughter’s visits to the office. His last email to me—on May 11—congratulated me on the birth of another daughter.
Aside from the occasional joke, Boyden was quiet about religion in professional settings. Privately, though, he was deeply devoted to his church, and he had a Tocquevillian appreciation for the role of religion in a healthy civic life. That may have been what made him willing to take on First Amendment cases the big firms wouldn’t touch—defending the free speech and free exercise rights of traditional religious practitioners who might have scandalized his fellow Episcopalians.
Boyden remembered—with no small amount of nostalgia—an era in Washington, DC, politics when Republicans and Democrats of good will would fight vigorously on policy matters one day and dine in each other’s homes the next. Boyden kept up the tradition over bridge. And anyone who worked with him for any length of time experienced Boyden’s own capacity to fiercely disagree and to reconcile promptly, quietly, and without a grudge.
Boyden loved to complain that his colleagues were stolen away by judges and justices, by the legal academy, by think tanks, by corporate interests, by presidential administrations, and by the very agencies he fought in court. But we knew he took pride in seeding the legal establishment with his protégés; indeed, the opportunities he gave us paved the way. And we are all proud to have been his associates and partners.
Many of the legal arguments that Boyden championed for decades seemed quixotic to some when he first articulated them, but time after time he proved prophetic. The Supreme Court’s recent action in cases involving affirmative action and judicial deference to agency legal interpretations suggest the Court may be poised to side with him yet again. Boyden Gray, who always took the long view in such matters, would be eager to see which way the Justices decide—and to take them to task when they come up short.
Adam Gustafson worked at Boyden Gray & Associates PLLC between 2013 and 2020, first as an associate and then as a partner beginning in 2017.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].