A Discussion with Former Acting Solicitor General Neal Katyal [Part Two]

In our previous blog, Everlaw CEO and Co-Founder AJ Shankar sat down with one of the top legal minds in the country, Neal Katyal, to chat about his experiences arguing cases in front of the Supreme Court and how he prepares for big cases. Neal is no stranger to the Supreme Court and the federal government, given that he has argued over 40 cases before the highest court in the land and his experience as the Acting Solicitor General of the United States for the Obama Administration. 

In part two of this interview series, Neal discusses his interactions with Supreme Court Justice Ruth Bader Ginsberg and the importance of legal literacy among the electorate.

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Discussion: Part Two

AJ ShankarWe’re all collectively mourning the passing of Ruth Bader Ginsburg. In all the arguments you’ve made to the Supreme Court, do you have any anecdotes about her?Neal KatyalOne of my more junior attorneys, Colleen [Roh Sinzdak], put together a phenomenal brief in an employment case. I told her I thought she should argue it as her first argument in the Supreme Court, and she did.She stood up at the podium, and as she started her opening, Justice Ginsburg — this was about a year ago — asks her question after question, one after another, for 27 minutes. Just question after question, super hard-hitting by Justice Ginsburg and super hard responses by Colleen. I was just like a kid in a candy store because this is what you want in America: giving it to each other at the top of their game, even while Justice Ginsburg was in her mid-80s, suffering from cancer. I mean, it was extraordinary: the woman’s fortitude, the insight, the imagination.She usually would ask the first question in oral arguments, so I’d spend a lot of time… You were asking before about how I prepare for a Supreme Court argument. One of the things I would do is think to myself what Justice Ginsburg was going to ask because if she’s the first question out of the box, that can set the tone for how the other eight approach the case. So I’d spend a lot of time with that but, you know, normally she’d ask a question, maybe a follow-up or two, but then the others would jump in.But what made that argument so remarkable was I think the others deferred to her because it was about discrimination law, which is one of Justice Ginsburg’s specialties. They just deferred to her and let her have the questioning, which generally doesn’t happen at the Supreme Court.

ruth bader ginsburg
Ruth Bader Ginsburg encourages students in her seminar on sex discrimination law to assist her in preparing to argue on behalf of the ACLU Women’s Rights Project before the U.S. Supreme Court. Courtesy of Columbia Law School.

AJ Shankar

The rule of law, the mechanics of the legal process, all of these things are so much more in the sphere of public discourse than they were even half a decade ago. They were arcane topics. Now, they’re front-page news. You’ve been at the forefront of that, helping to educate and also guiding the discussion. I’m curious — did you expect this to be such a big part of your job description these days?

Neal Katyal

Not at all. It’s taken me a while to get comfortable with it. It was certainly the case after the presidential election. I was really worried about what Trump would do given his promises regarding the Muslim ban and stuff like that. So I created with my friend — Mamoon Hamid, who runs Kleiner Perkins, that legendary venture capital firm — a blueprint for a litigation think tank that would stand up for some of these things. We launched that at Georgetown, the Institute for Constitutional Advocacy and Protection.

It’s been like this for a long time, even before the Guantanamo case. So there wasn’t a change; this is what I do. It’s not surprising to me. I did that, and we fought that, raised a lot of money, and have this whole team of litigators. It’s incredible. But I didn’t expect that I’d be on the news every night; that’s not my comfort place. I’ve only grown gradually comfortable with it because I felt there is so much of a threat to what the rule of law is. And I don’t think it’s a partisan thing. I think this is actually a singular personality thing, driven by the occupant of the White House. 

I feel like if I can help explain to the American people what’s going on, that’s my duty. I don’t know how to look in the mirror every morning otherwise except to explain what’s going on in a way that people get it. You can disagree with my take or not, that’s fine — but my real duty is to try to explain what the heck is happening because there’s so much.

This is my life and job, and I still can’t keep it all straight, so I can’t imagine that ordinary people can. I really do try and think through how I can say it in a way that is clear and that people will remember it. For example, there’s the nomination of Judge Amy Coney Barrett to the Supreme Court and the whole question about what her ruling would be on the Affordable Care Act, which is this big case the Supreme Court is going to hear the week after the election.

It gets confusing for people. What is the Affordable Care Act? What is coverage for preexisting conditions? President Trump says he’s going to cover everyone, so isn’t that enough? It’s really important to me because it’s a decision that can affect 82 million Americans. People need to know what it is. I went on [TV] to explain what is at stake, so people get it.

Neal Katyal ebook
In this ebook, Neal Katyal discusses a wide array of topics, ranging from the Supreme Court, Justice Ruth Bader Ginsburg, the state of legal collaboration, and much more.

AJ Shankar

On that note, there’s this saying: the good thing about science is that it’s true whether you believe in it or not. Your iPhone will still stream HD video from the cloud, even if you think that there are little gremlins in there. But I’m not sure the law is exactly the same. 

Our legal institutions seem to benefit from a certain amount of belief in the process, the systems, the underlying concept of the rule of law. Do you agree with that? Do you think people need to believe in the systems for them to work? 

Neal Katyal

100%. I mean, one of the things that I’ve found so threatening about this president is that if there’s a ruling that doesn’t go his way, he says, “Oh, that’s an Obama judge,” or “That’s lawless,” or “It’s fake.” It’s a profoundly anti-constitutional, anti-American view of our government.

My parents came here from India because of its traditions and protections; it’s rule of law. I don’t think they would have articulated it in those ways, but they knew basically they could come to this country and be treated fairly.

I don’t think they went around and thought that it was all just a big power game — that anyone who complies with the law or pays their taxes is a sucker. That’s not their attitude, and it’s not the attitude of so many people in America.

AJ Shankar

How important is legal literacy for citizens today? You’re talking about the implications of the ACA and how that’s going to the Supreme Court. Is it important for people to know how the mechanics of all that stuff works? Is there work the legal community can do to increase that literacy rate? You mentioned the Institute at Georgetown.

Neal Katyal

Yeah, you know, I’ve been thinking about this a lot, and it’s probably going to be the next phase and project that I am going to launch. It’s one thing to do advocacy in the courts, but what you’re putting your finger on is a much deeper problem in our society, which is that we’ve lost touch with our Constitution and our greatest traditions. Everything is a partisan squabble. I very much think that we need to reeducate everyone, starting with kids, but adults, too, and create some constitutional literacy because I think the thing that binds us together as Americans is our shared reverence for the Constitution. So, you can expect that I will be doing something pretty major in this space at some point soon.

For the rest of this roundtable discussion, check out our ebook, “A Conversation with Former Acting Solicitor General Neal Katyal.” Neal goes over a wide array of topics, including arguing a case before the Supreme Court, his experience with Justice Ruth Bader Ginsburg, the future of legal collaboration, and more.