Neal Katyal, a former acting solicitor general, offered his insights on the inner workings of the U.S. Supreme Court on Sunday.
Katyal, a prolific advocate arguing cases before the nation’s highest court, spoke as part of the Purdue Northwest Sinai Forum lecture series.
His first case before the court was the Guantanamo Bay case, in which he represented Osama bin Laden’s driver.
More Top Picks Best Whole House Water Filters For Wells For Residential
“It’s 2001. The nation has been horribly attacked,” Katyal said, in the Sept. 11 terrorist attacks.
Katyal began working with his law students to get benefits for first responders. Two months later, President George W. Bush issued a travel order.
“This was the time of dial-up modems,” Katyal reminded the audience. The modem squawked noisily as it connected Katyal to the internet so he could read the lengthy executive order on the White House website.
“It took my breath away because the president was saying he would set up this whole new system of justice on his own,” Katyal said. The very last line of that executive order said the nation’s courts would have no jurisdiction over the military tribunals to be used against the accused terrorists.
Katyal, teaching at Yale Law School, brought up the issue with his class for a timely constitutional law discussion. One of the students, a staffer for Sen. Pat Leahy, D-Vermont, told his boss what Katyal thought about it, that it would take congressional action to accomplish what Bush wanted to do by executive order. Leahy called Katyal to a congressional hearing.
“This was back when Congress did stuff,” including the Patriot Act, Katyal said.
“The agenda was to increase presidential power,” he said. “It was run out of the vice presidential office, the late Dick Cheney.”
Neal argued, “Let’s do it right the first time,” writing op-ed columns and speaking out, but no one was listening to him.
“I am a lawyer,” Katyal said, so he filed his first lawsuit. He wrote to detainees at the Guantanamo Bay prison asking their permission to file a lawsuit on their behalf. “It lands in the hands of Osama bin Laden’s driver,” who said yes.
“I was known in Washington as being very tough on al-Qaeda,” he said, which made him a good person to litigate the issue.
“Nobody really thought we could win,” he said. “Everyone thought that this was impossible.”
In the Court of Appeals, he said, the case resulted in “18 different rulings against me in a 20-page opinion.” Among the judges in that case was John Roberts, who has Northwest Indiana roots, spending part of his childhood in Long Beach and attending La Lumiere School.
Before the Supreme Court heard the case, Roberts was nominated for chief justice. In his confirmation hearing, Roberts promised to recuse himself.
“I’m asking them to overrule their new Supreme Court chief justice’s opinion in the most important case he’s ever had,” Katyal said.
He recruited a “huge number” of law professors and military flag officers to ask the Supreme Court to hear the case. Out of 10,000 petitions a year, the court hears arguments in only 60 cases, Katyal said.
On Nov. 7, oral arguments were set for early March.
To give a sense of how controversial and groundbreaking this case was, Katyal said the late Sen. Lindsey Graham, R-South Carolina, introduced a bill on Nov. 10, three days after the Supreme Court agreed to hear the case, to remove it from the court’s docket.
Katyal said that early in his career, Ted Cruz – “this was when Ted had friends” – watched oral arguments together and often joked about starting a malpractice critique.
Katyal called his friend Ken Starr and asked him to argue the controversial case, but Starr’s law firm wouldn’t let him. Another lawyer also agreed, but his law firm wouldn’t allow it, either.
“This was such a massive case, and it just didn’t feel like anyone would have the time to do it, so I decided to do it,” Katyal said.
He practiced his arguments in front of Harvard professors and bombed. His co-counsel, a Navy commander, got him an acting coach from Arizona.
“Tell me your argument,” the coach said. Katyal repeated his arguments. “He said, ‘Your argument’s a legal pad?’” The coach told Katyal to look at him while making the argument, even holding the coach’s hand to force Katyal’s attention on him. “That image was exactly the right image.”
The day before oral arguments were to be heard, the clerk of the court spoke with Katyal. “He said three people had died at the podium of heart attacks.” Katyal has since verified only two deaths at the podium.
In a 5-3 decision, with Roberts recusing himself as promised, the Supreme Court ruled in his favor. The court doesn’t say when it will release its opinions, not wanting to have anticipation move markets. But Katyal happened to be in the building when the court’s decision was announced.
As he left, the media asked him to explain what the lengthy ruling meant. Basically, he said, the world’s lowest man, Osama bin Laden’s driver, brought a lawsuit against the world’s most powerful man, the president of the United States, and won.
“In many other countries, my client in this case, the driver, would have been shot for bringing this case. More important to me, the lawyer would have been shot,” Katyal said.
That was Katyal’s first Supreme Court case but not his only major one.
In President Donald Trump’s first term, Trump called for a ban on Muslims entering the country as part of a planned shutdown on illegal immigration. Katyal saw that as discrimination based on religion, a First Amendment no-no.
“We filed it. We won, very quickly, in a week,” Katyal said. Before the case could be heard by the Supreme Court, Trump revised the travel ban twice, including banning immigrants from North Korea, “because you know we have so many people coming from North Korea,” Katyal said.
Katyal lost that case by a 5-4 decision.
More Top Picks Nixon Mission
“It was really hard for me to go back into the U.S. Supreme Court after that,” he said, but he got back in the game.
Remember the tariffs case, with Trump announcing tariffs against every country except Russia on what the president called Liberation Day last year? Katyal represented a bunch of small businesses.
The International Emergency Powers Protection Act gives the president nine powers in times of crisis, among them the power to regulate importation. “No president had ever thought it empowered the ability to tariff,” Katyal said.
”Tariffs are taxes. They take money out of the pockets of the American people and put them in the treasury,” Katyal said.
“We had a Boston Tea Party. We didn’t have a Boston tariff party,” he added.
Congress, not the president, has the power to levy tariffs, Katyal said.
“We knew it was possible, but we knew it was really hard,” he said.
In a 6-3 decision, the court ruled against Trump and struck down the tariffs. “$200 billion is being refunded to Americans as a result of that decision,” he said.
Or rather, it’s being refunded to businesses because there isn’t a mechanism to refund it to the consumers who actually paid the higher prices for products, Katyal said.
Small businesses were on the edge of bankruptcy, and some went bankrupt while the case worked its way through the system. “The law moved fast, but not fast enough,” he said.
Katyal addressed fairness in the composition of the court. Trump appointed three justices in his first term while Barack Obama appointed only two in his two terms in office. A third Obama nominee, Merrick Garland, never got a confirmation hearing by the Republican-led Senate.
It’s a mistake to assume a justice is beholden to the president or party that nominated the justice, Katyal said. “Once you put on that robe, you’re not acting on one side or another.”
In the wake of the Republican decision to not hold a hearing on Garland, some Democrats have talked about expanding the court. It wasn’t always nine justices, and the Constitution doesn’t set the number.
Understand the intimacy of the nine, Katyal said. “It’s an enormously stabilizing force in our society.”
When the justices debate a case, only the nine justices are in the conference room. They all shake hands with each other before they begin discussing the case. When they draft opinions for the majority and minority, they review each other’s drafts, sometimes revising them 40 or 50 times before settling on a final draft for each side. With a larger number of justices, that could become unwieldy, he said.
“I’m a fan of term limits, but I don’t think we’re going to get them,” and it wouldn’t apply to current justices, Katyal said. The average term of justices since the nation’s founding is 18 years. Katyal figures that’s a good number for a justice’s term.
He also believes a stronger code of ethics is needed, at least in theory. Recusal raises an issue. “The Supreme Court is not like other courts because if you take a justice out, there is no one else,” he said.
It takes four votes to hear a case. If five justices recused themselves, all four remaining justices would need to vote to hear a case.
“When drafting the code, I think that’s a real, real problem,” he said. Katyal suggested legislation to allow retired justices to fill in during recusals.
Doug Ross is a freelance reporter for the Post-Tribune.