The justices seemed to be concerned about over-reaching on both sides. On one side, they asked, suppose we adopt your theory, Mr. Olsen, and rule that the Prop 8 proponents do not have standing to defend the measure? What will be left of the initiative process?
On the other side, they asked Chuck Cooper, suppose we adopt your theory that the Proponents do have standing? Do the Proponents act as agents of the state, in place of the Attorney General? How far does that ability to represent the state’s interest extend? Cooper made it clear that he thought it was possible and proper, for the Proponents’ right to speak for the state should be limited to the specific ballot issue, and nothing more.
Ted Olsen, on the other hand, seemed to be completely uninterested in the question of the long-range consequences of his legal theory on the future of the initiative process.