Neal Katyal is a partner at Hogan Lovells and the Paul and Patricia Saunders Professor of National Security Law at Georgetown Law Center. He served as the Acting Solicitor General of the United States from May 2010 to June 2011. Previously, he was the Principal Deputy SG in the Justice Department. He has argued a mind-boggling number of cases before the Supreme Court, including Hamdan v. Rumsfeld, where he challenged President George W. Bush’s military trials at Guantanamo, and Trump v. Hawaii, where he challenged President Trump’s travel ban.
How did you go from a shy kid who was interested in science to a championship debater in high school?
It was not an easy transition. I was a quiet science kid up through eighth grade, and in ninth grade, I had a uncle who said, “You should try the debate team.” I really didn’t know what it was, but I decided to give it a try. And initially, it was hard — there was no question. The one interesting thing about debate was that input was proportional to output, which wasn’t always the case in sports (well, at least for me). That is, the more I practiced and researched, the better I’d do at tournaments. So this created a little bit of a feedback loop. And I realized how much I loved ideas and politics and thinking about both sides of an issue.
What did your Dartmouth debate instructor teach you about oral advocacy?
I’ve been so lucky to have amazing teachers, of which my head coach, Ken Strange, was certainly one. Ken was all about figuring out what the heart of an argument was. When you’re trying to figure that out, it’s really crucial to be a good listener. You should listen intently to what they’re really saying — not what you want them to be saying, because the straw person arguments are easier to defeat — but what they’re actually saying. That’s probably the most important thing I learned from him.
And secondly, to respect ideas. Don’t counter an idea just because of its provenance, or because it’s either from someone you don’t like or a political party you don’t like. Often, we can be blinded to really good ideas because of ideology.
How do you become a good listener?
You take notes, and you listen very intently. But it’s also about a frame of mind. It’s about understanding that good listening is really about them, not about you. And it’s trying to really get into someone’s head and understand what is it that they’re saying. The greatest judges and justices do this all the time. They’re able to actually put an advocate’s point in terms better than the advocate has.
Which Supreme Court advocates do you admire most?
Michael Dreeben, who’s the Deputy Solicitor General in charge of criminal matters, I think is pretty much unparalleled. Maybe the only person who’s kind of like him is Paul Clement. Both have an extraordinary facility for getting to the heart of an issue and putting it in rhetorically powerful ways.
There’s also a phenomenal lawyer, Peter Keisler, who practices at Sidley and Austin. Peter is so good at figuring out what your best argument is, when you’re his opponent, and answering it. Cate Stetson has unparalleled rhetorical skills — her arguments are legendary for their elegance, and I learn every minute I get to watch her. Pratik Shah is in this camp, too.
In the new up-and-coming generation, I think Elizabeth Prelogar, who’s in the Solicitor General’s office now, is one of the very best advocates ever. I suspect she’ll go on to do some incredible things. And in the new-new generation, Colleen Sinzdak and Morgan Goodspeed are not far behind Elizabeth! There are others; these are just a few.
You believe in ritual, like when you wear the same socks and tie to all of your oral arguments. Do you have any other unusual habits?
I wear what’s called a kara, a bracelet that my dad used to wear when he was alive. I rub the feet of Chief Justice Marshall, whose statue is in the basement of the Supreme Court. The other thing is that I’m listening to music on the drive in and walking into the Court. Initially, I did that because in the Solicitor General’s office, you’d have so many people who were whispering in your ear before the argument, and I didn’t want to have any more views or advice at that point. [laughs] The headphones were a nice way to distance myself a little bit. Then I wound up really liking it.
Last year, you tweeted some advice for law students. You emphasized how important it is to start thinking about improving your writing. When did you start seriously examining your writing, and how did you improve?
I was not a particularly good writer. I had a professor in college, Doug Haynes, who would spend, on a ten-page paper, maybe three or four hours going line by line with me. So I started to try to figure out what I was doing wrong, or how I could improve from that.
My writing really developed in law school when I had two main mentors: Bruce Ackerman and Akhil Amar. I had the good fortune to co-author law review articles with each of them, and those two really, really taught me how to write. They definitely were dealing with a remedial project there, because I was not your typical Yale law student when it came to writing. Even still, to this day, I think every associate in my group is a far better writer than I am.
What were the main problems with your writing? Concision, narrative…
All of the above. I would say that I just have to work at it a lot harder than other people — and I do. For me, I feel very natural — because of my debate training — to orally put the terms in a way I’m happy with. Writing has always been more difficult.
How did you work on improving your writing?
For the most part, what I’m trying to do is take the advice and lessons from anyone who’s editing me. This can be an editor at a newspaper, or an associate, or another partner, or a colleague at another law firm. I try to pay attention to what I missed in my initial writing, why this edit is better, and try to draw a generalized lesson from it. It’s all about learning from your mistakes.
If you could go back in time and clerk for any former justice, who would it be and why?
It would have to be Chief Justice Marshall. I don’t think there were law clerks back then, but there’s no one who did more to build the American republic and the rule of law than Chief Justice Marshall. And he was not only brilliant as a jurist — he was savvy in how he went about the Court’s business. Hands down. It wouldn’t even be close.
I hate to overload you with hypotheticals, but if you could argue any Supreme Court case, which would you choose?
I’m going to pick one in which the side I wanted lost. Sure, it would be fun to argue Brown v. Board of Education or McCulloch v. Maryland. But because the outcome came out the way that I wanted them to, I’m taking those off the list. To argue a case for which the decision came out the wrong way from my perspective, it would have to be Hirabayashi v. United States — the first of the Japanese-American internment cases. The government’s Solicitor General misled the Court on the national security evidence for his position, so I’m not sure that a different advocate could have made any difference because of the information the SG gave to the Court. But I would have liked a shot.
What does the average law student or lawyer fail to appreciate about the Solicitor General?
In ordinary times, the Solicitor General represents the United States government — not just the president. And its structure reflects that. There are only two political appointees in the Solicitor General’s office: the Solicitor General and the Principal Deputy. There are three career deputies. All the attorneys in the office outside of these two positions are career – hired on a nonpartisan basis.
Also, that the Solicitor General, in every administration except this one, has maintained a deep fidelity to the past positions taken by other Solicitors General, be it from the same party or a different party than the person who currently occupies the office.
The SG’s unofficial motto is, “The United States wins its point whenever justice is done its citizens in Court.” How did you interpret the country’s best interests when different agencies were telling you different things, and when your client was technically an abstraction?
That’s actually the inscription in the Attorney General’s conference room. And it’s the motto for the entire department, but the Solicitor General takes it incredibly seriously. It means, in practice, some really important things. I think the most important one is the Solicitor General’s practice of confessing error.
What happens there is that you have a case that the Justice Department has won in the Court of Appeals. A confession of error occurs when the Solicitor General tells the Supreme Court, “Supreme Court: hear this case. Yes, we won it, but we want you to hear the case and we want you to rule against what the Justice Department argued. So nullify our win, and in fact, rule against us.” Which is ordinarily, when you’re representing a private client, not something you can get away with But you can in the Justice Department, and it all goes back to exactly that quote that you were just reading from. That the United States wins its point when justice is done to its citizens. Sometimes, justice means that the Justice Department should lose its case.
When attorneys have worked on a case, they’re pretty disgruntled if the SG says it turned out the wrong way. Were you responsible for damage control, or was that delegated to others?
Absolutely. You know, perhaps you have a US attorney — the chief law enforcement officer in some districts — who has brought the case, and is very upset that someone in Washington says, “Hey. Your position is not just debatable; it’s so wrong that we’re telling the Supreme Court to rule against it.” That’s a tough thing to swallow. As Solicitor General, you want to be extremely circumspect in making such a determination — and make sure to listen to the views of the folks who brought the prosecution.
For me, the way I handled that was by trying to listen and call them up or invite them to D.C. The prosecutors who brought the case could say, “tell me why you think this is right,” and really listen. Sometimes those conversations are incredibly helpful because you’ve missed stuff. You think you’re going to confess error, and then you wind up not.
How is that comparable to when you’re rejecting somebody’s appeal to the Solicitor General?
Every time the United States government loses a case in any trial court, it’s not like the lawyers there can just appeal it on their own. They have to seek approval from the Solicitor General. There is a very lengthy review process, and here’s how it works. Let’s say you’re an assistant United States Attorney, which means that you’re aline prosecutor. Let’s say you’re in San Francisco. You lose your 4th Amendment suppression motion, and the evidence is admitted. You want to appeal that.
So you have to first write a memo to your boss, the United States Attorney, saying “I want to appeal this.” The United States attorney then has to write her own memo to the Solicitor General saying, “I want to appeal this.” Then that memo gets routed to a criminal division line attorney, who reviews it and says whether it should be appealed or not appealed. Then that memo gets reviewed by the head of the criminal division — the Assistant Attorney General. It then gets sent to a line attorney in the Solicitor General’s office, who writes her own memo about whether to be appealed or not. Then that goes to a deputy Solicitor General, who writes his or her own memo about the same thing. And then it goes to the Solicitor General for a decision. The best thing about being Solicitor General is that you don’t have to write a memo.
When you get one of these packets, there’s sometimes even fifteen or twenty different memos saying this should be appealed or not appealed. The beauty of the system is that all the memos are shared with everyone else who’s written a memo. You can have a reply or a sur-reply to the memos, but there’s no kind of stovepiping or only certain people seeing certain memos. Everyone sees everything, and everyone can react to everything. And wow, it’s such a good way to make decisions. That process really, really taught me a lot about how to structure decision-making to yield the best decisions.
The SG has to make a lot of decisions. You have to decide whether to appeal or accept the government’s losses, whether to seek Supreme Court review, how to present those cases on the merits, and whether to file amicus briefs. How did this decision-making process become easier over the course of the job?
I do think it got easier. Not really because I was more decisive, but because I understood law a lot better — particularly federal law. When you come into the job, there’s a lot of stuff you just never had exposure to before. I teach constitutional law and criminal law, so I’d seen a large number of those issues in one way or another. But I was definitely more familiar with different areas of law by the time I left.
Of the lawyers you know who love their jobs, what are they doing differently?
Well, being successful is obviously one way in which certain lawyers are happier. No question about that. I also think work-life balance is really important. In an era of iPhones and email, I worry that lawyers, even the most successful lawyers, don’t have an opportunity to disconnect. I think that has created a lot of unhappiness in the profession.
Why are you productive compared to other people? In other words, what do you do differently than someone else who also works hard, but hasn’t achieved comparable success?
I’m not sure that I’m necessarily more successful or productive, but I think the two things are, 1) I’m really pretty good at hiring people. I have the very, very best team of lawyers working with me, and it’s an enormous advantage. And then 2), I think if you can truly listen to the other side, and not minimize or ridicule their argument but really try to figure it out, it saves you a lot of time.
In your interview with the Politic, you said that you “can’t overstate how hard you worked” in Professor Amar’s class, and in law school more generally. What motivated you to work so hard?
Law school was the first time since I was a high school sophomore that I was actually able to go to school five days a week. Starting my sophomore year spring, all the way through my last two and a half years of high school and all four years of college, I was very intensely on the national debate circuit. When I went to law school, I was like, “Boy. School’s a lot easier when you’re not missing half the classes.” So that was a big change for me. And I also loved it. My classmates were amazing, my professors were beyond incredible, and I liked the material. All those things combined together for me to say, “Hey, I’m going to milk it for all it’s worth.”
I was probably the last person admitted to my Yale Law School class. My grades were good, but not Yale Law School grades; in part because I wasn’t at school very much. I came in determined to really make the most of my time.
What were your favorite classes at Yale Law School?
You never know what you’ll find fascinating. I wouldn’t have thought corporate law would be cool, but I loved the class. I didn’t think tax would be interesting at all, but I loved it. Those are definitely some of the classes that I loved.
When you were the SG, you worked on a wide variety of different legal issues. Were there any areas of law you enjoyed that you hadn’t previously been interested in?
Totally. A good example is patents. I never really thought about patents much before that, but I wound up being completely taken by intellectual property. I spent a huge amount of time on the IP cases and wound up just loving them.
I’m not sure if this is considered intellectual property, but you argued a really interesting case in the lower courts about whether parts of the genome could be patented.
That’s certainly in the top couple of cases I’m most proud of. The initial case was about the genes for BRCA1 and BRCA2, which are genes that if you have in your body and you’re female, you have an extremely high likelihood of getting a very aggressive form of breast cancer. And so if you have this gene in your body, you often take some pretty radical steps to try and forestall the cancer. Then there was a blood test developed for whether you had the gene — they charged $3000 for that simple blood test. They had patented the gene, and therefore said, if you’re looking for the gene, then you’re infringing on their patent.
I could see the arguments for incentivizing people to discover genes and so on, but I spent a year and three months trying to figure the right answer. This included going to NIH on Monday nights to be tutored on genetics and having Larry Summers and other top economists explore the economics of innovation. I mean, that’s the best thing when you’re the Solicitor General — you can call on all of the resources of the federal government. So I made the decision to seek the invalidation of approximately 20,000 gene patents. It was a very big deal, and I think when I made the decision, a lot of the commentators said, “Oh, there’s no way this will win. This is destined to lose.” But fortunately, we ended up winning it 9-0 in the Supreme Court.
How often do you argue a case when you don’t feel like you have the “right answer,” but you have a duty to protect your client anyway?
That certainly happens sometimes. I started my Supreme Court career with Guantanamo, and I was certainly attacked for representing Bin Laden’s driver. But I’m very much someone who believes that everyone should have a robust defense, particularly at the Supreme Court of the United States. I certainly have no problem taking a case that wouldn’t be the position I would ordinarily take, but I think that’s my job as an advocate — to present the best case that can be made for a position. It’s up to the justices to decide what to do.
Before you argued Hamdan v. Rumsfeld, you mooted your argument 15 times. When did you know that enough was enough?
I didn’t. [laughs] Even that morning, I was like, “Maybe I should have done another moot.”
How exactly do moots work? Are law students coming up with questions and grilling you, or are law professors taking on the persona of justices and sitting at a long bench?
At the Georgetown moot, the Supreme Court Institute is run by the Georgetown faculty who regularly practice at the Supreme Court, as well as outsiders. So I’ll often go judge, and so will other people. The two people who run it, Irv Gornstein and Dori Bernstein, are beyond incredible. They are among the most sophisticated Supreme Court lawyers in the world.
Then I have a very intensive moot court program inside Hogan Lovells that everyone in my group participates in. Because of the caliber of my group, they can basically get almost every question that I’m going to get asked.
You watched almost every Supreme Court argument from 2009 to 2011 while you were in the SG’s office. What was the most useful thing you learned?
I think maybe the most important thing is how much the Court appreciates an advocate who knows when they’re done. The Justices are incredibly busy individuals, and they want you to respect their time. So it’s not uncommon at all for me to sit down with a lot of time left on the clock. If I got to make the points that I wanted to get out, I’m going to sit down. I did that once when I was running the Solicitor General’s office with almost 15 minutes to spare. It really depends on the case. Of course, for other ones, I’m happy to go over long periods of time if the Court will have me.
Other interviews conducted by Anna Salvatore: Lawfare editor-in-chief Benjamin Wittes, New York Times Supreme Court correspondent Adam Liptak, First Mondays co-host Ian Samuel, Fix the Court Director Gabe Roth, and litigant extraordinaire Fane Lozman.