Flush with the seemingly unexpected success of his case before the Supreme Court, he decided to convert his life of public advocacy into a TED Talk.
Spare a moment for a laugh, and let’s all chuckle at the impending end of one phase of Neal Katyal’s lengthy career as a Supreme Court advocate.
Non-lawyers probably won’t recognize the name, but court-watchers have known Katyal for well over a decade as one of the Legal Left’s leading lights: former acting solicitor general in the Obama administration, professor at Georgetown Law, and current head of appellate practice at Milbank’s D.C. shop. Katyal has argued before the Supreme Court a number of times — don’t ask how many of those resulted in wins; the world of the Supreme Court bar is one of participation trophies, not championships — and most recently in the case of Learning Resources, Inc. v. Trump, the so-called “tariff case.”
As readers no doubt know, the government lost in that landmark case: Trump’s tariff regime was ruled an unconstitutional overextension of executive authority under the International Emergency Economic Powers Act of 1977. (Trump immediately instituted a new tariff schedule under a different theory of executive power.) Readers of National Review were also no doubt prepared for this outcome, as pretty much every single writer at this magazine has written about it at length, with the expectation that any proper reading of the IEEPA would result in Trump’s executive order being overturned.
But not Neal Katyal! Katyal, flush with the seemingly unexpected success of his case, decided to convert his life of public advocacy into a TED Talk — delivered live with the lavalier mic, snazzy suit, and breathless patter to a paying audience, the whole nine yards:
Legal scholars, commentators [and] my own colleagues said it was impossible. They said the president has nominated three of the justices on the court, and three others were appointed by Republican presidents. They’re not going to go against their president, they said. I thought that was wrong.
They said it couldn’t be done! I will set aside the self-promotional guff that Katyal lards his TED Talk with — Professor Josh Blackman tears it apart thoroughly above — and only point out that in his eagerness to praise himself, Katyal has burned multiple bridges in his profession, and among people who do not forget such things.
For one thing, as a practical matter, everybody knows that Supreme Court oral arguments are purely for show. Every one of those justices knows how they are going to rule by the time the lawyers are speaking. (It is quite literally their responsibility not to walk into oral arguments cold.) In all honesty, Katyal’s oral presentation was stumbling and canned — many noted at the time that the plaintiffs would likely triumph despite how oral arguments went, not because of them.
For another, Katyal used the TED Talk as an occasional to slander his co-counsel, former Judge Michael McConnell, with serious charges: He casually accuses one of America’s most respected modern conservative jurists of putting a Washington Post columnist up to writing a negative opinion piece about him, and accuses him trying to professionally submarine his appearance before the Court. These are incredibly serious charges, and Katyal ought to be prepared to answer for them in greater detail.
Finally, Katyal gleefully reveals his true point: He used AI to basically write his presentation to the Court for him. Yes, the entire TED Talk turns out to be an extended advertisement for Katyal’s new homemade AI system, which he calls “Harvey.” Harvey supposedly predicted the questions each justice would ask with such pinpoint accuracy that Katyal had to stop and ask Amy Coney Barrett to repeat herself only once.
In any event, I hope Katyal’s proud bleat of triumph on the big corporate stage was worth it, because I have a hard time believing any firm with a high-stakes appellate case in their hands is going to want to trust it to a ridiculous, backstabbing peacock.