There’s a certain type of Washington lawyer who wins a case and immediately starts planning his victory lap before the ink is dry on the opinion. In the aftermath of arguing the winning side in the Supreme Court’s recent tariff case Learning Resources v. Trump, Neal Katyal has now delivered the victory lap to end all victory laps—a TED talk that manages, in eighteen minutes, to be simultaneously self-aggrandizing, revisionist as to very recent history, and—most shockingly—a vehicle for what I can only describe as defamatory statements about one of the finest legal minds in the country.
Much has already been said about the distinguished Supreme Court advocate’s feat of self-immolation. Katyal’s statements about former Judge Michael McConnell may be the most reprehensible part of the entire embarrassing spectacle. In the talk, Katyal tells a global TED audience that “one of my own teammates”—unnamed but unmistakably McConnell—“decided to try and take me down so that he could argue the case,” that “[h]e campaigned, he lobbied, he made calls,” before a Washington Post op-ed by Jason Willick appeared calling Katyal’s selection a “strategic mistake.” Katyal reads the piece aloud, then waves it off with “I don’t begrudge the guy. I mean, whatever.” The faux-magnanimity makes it worse. He wanted the world to know that his distinguished co-counsel had betrayed him—while leaving himself just enough deniability to claim he bore no ill will.
To suggest that McConnell decided to try to take Katyal down is a very serious stain to leave on the legacy of a true gentleman and scholar. McConnell, currently the faculty director of Stanford Law School’s Constitutional Law Center, is one of the preeminent figures in the conservative legal movement. His scholarship has contributed as much as that of any living authority to the development of constitutional originalism. He may be best known for his work exploring the original meaning of the religion clauses and advocating for religious liberty, but he has also done pathbreaking work on a host of other topics in constitutional law.
Robert P. George called McConnell “the most influential scholar of religion and the Constitution of my generation, and he’s one of the most distinguished legal scholars in the entire country, and of any generation.” In fact, his work extends beyond scholarship to his work as a Supreme Court advocate and even as a judge. When President George W. Bush nominated him for the Tenth Circuit, he was confirmed by unanimous consent.
One of the distinct honors of my career was to be McConnell’s debating partner at a 2016 Intelligence Squared debate at which we were on the side arguing that President Obama had usurped congressional power. I can attest, as so many who know him do, that besides being brilliant, he is a true gentleman, known to be gracious and collegial almost to a fault. He possesses such high character that it renders Katyal’s smear that he ran a whisper campaign against him laughable. Reacting to the TED talk, Willick asserted that “[t]he implication that McConnell put me up to writing the piece is simply false.” In fact, he added, the CEO of the organization that sponsored the tariff litigation had emailed him that his op-ed had “overlooked the central role Michael [McConnell] played as Counsel of Record directing the brief and shaping the arguments presented to the Court.”
What there was—openly and legitimately—was a genuine strategic debate about who would be the better advocate in this case. Willick argued in his op-ed that a conservative former judge with deep personal ties to sitting justices—McConnell served with Justice Gorsuch on the Tenth Circuit, moved in the same law professor circles as Justice Barrett, and had a connection to Chief Justice Roberts going back to the term they both clerked at the Court—would be a more persuasive advocate than a prominent liberal commentator like Katyal. Not only would McConnell understand which angles would be most persuasive to the justices he knew well, the very nature of the position they were taking made McConnell the better fit. Justice Alito actually joked during arguments about how out of character it was to hear Katyal embrace the non-delegation doctrine, typically invoked by conservatives to rein in the administrative state. McConnell would have been a much more plausible person to make that pitch.
Katyal’s performance at arguments had its rough spots, validating the concerns Willick highlighted. Justice Gorsuch told Katyal directly during argument that “you’re not answering my question.” Justice Barrett—whose question Katyal’s AI system Harvey supposedly predicted “almost verbatim”—had to repeat herself after Katyal missed it entirely. His own former boss, Justice Kagan (the solicitor general under whom Katyal was principal deputy), told him that one of his arguments “cuts against” him. These were justices who ultimately favored his side but who almost certainly came to those conclusions before Katyal opened his mouth. For all the attention given to oral arguments, judges confirm that it is incredibly rare for that hour or so of questioning to change a judge’s thinking based on reading hundreds or thousands of pages of briefing.
Katyal settled the strategic debate not by acknowledging it fairly but by smearing McConnell from a TED stage, retroactively framing a legitimate professional disagreement as a personal betrayal. The broader self-portrait in the talk is its own kind of problem. Katyal describes a preparation regimen that included a mindset coach who worked with Andre Agassi, an improv coach, a meditation coach who arranged to rent an apartment a block from the Court, and the Harvey AI system supposedly trained on twenty-five years of Supreme Court oral arguments. Conspicuously absent from this roster of heroes: his actual legal co-counsel.
The legal profession has norms, imperfect but real, about crediting your team and not settling professional scores on a forum like—well, a global TED stage. Katyal violated both simultaneously. Michael McConnell deserves better than to have his reputation casually maligned as a dramatic device in someone else’s autobiographical hagiography.