How to win an argument at the US Supreme Court or anywhere Neal Katyal
Fourteen years ago,
I stood in the Supreme Court
to argue my first case.
And it wasn’t just any case,
it was a case that experts called
one of the most important cases
the Supreme Court had ever heard.
It considered whether Guantanamo
was constitutional,
and whether the Geneva Conventions
applied to the war on terror.
It was just a handful of years
after the horrific attacks
of September 11.
The Supreme Court
had seven Republican appointees
and two Democratic ones,
and my client happened to be
Osama bin Laden’s driver.
My opponent was the Solicitor General
of the United States,
America’s top courtroom lawyer.
He had argued 35 cases.
I wasn’t even 35 years old.
And to make matters worse,
the Senate, for the first time
since the Civil War,
passed a bill to try and remove the case
from the docket of the Supreme Court.
Now the speaking coaches say
I’m supposed to build tension
and not tell you what happens.
But the thing is, we won.
How?
Today, I’m going to talk
about how to win an argument,
at the Supreme Court or anywhere.
The conventional wisdom
is that you speak with confidence.
That’s how you persuade.
I think that’s wrong.
I think confidence
is the enemy of persuasion.
Persuasion is about empathy,
about getting into people’s heads.
That’s what makes TED what it is.
It’s why you’re listening to this talk.
You could have read it on the cold page,
but you didn’t.
Same thing with Supreme Court arguments –
we write written briefs with cold pages,
but we also have an oral argument.
We don’t just have a system
in which the justices write questions
and you write answers.
Why?
Because argument is about interaction.
I want to take you behind the scenes
to tell you what I did,
and how these lessons are generalizable.
Not just for winning an argument in court,
but for something far more profound.
Now obviously,
it’s going to involve practice,
but not just any practice will do.
My first practice session for Guantanamo,
I flew up to Harvard
and had all these legendary professors
throwing questions at me.
And even though I had read everything,
rehearsed a million times,
I wasn’t persuading anyone.
My arguments weren’t resonating.
I was desperate.
I had done everything possible,
read every book,
rehearsed a million times,
and it wasn’t going anywhere.
So ultimately, I stumbled on this guy –
he was an acting coach,
he wasn’t even a lawyer.
He’d never set foot in the Supreme Court.
And he came into my office one day
wearing a billowy white shirt
and a bolo tie,
and he looked at me
with my folded arms and said,
“Look, Neal, I can tell
that you don’t think
this is going to work,
but just humor me.
Tell me your argument.”
So I grabbed my legal pad,
and I started reading my argument.
He said, “What are you doing?”
I said, “I’m telling you my argument.”
He said, “Your argument is a legal pad?”
I said, “No, but my argument
is on a legal pad.”
He said, “Neal, look at me.
Tell me your argument.”
And so I did.
And instantly, I realized,
my points were resonating.
I was connecting to another human being.
And he could see the smile
starting to form
as I was saying my words,
and he said, “OK, Neal.
Now do your argument holding my hand.”
And I said, “What?”
And he said, “Yeah, hold my hand.”
I was desperate, so I did it.
And I realized, “Wow, that’s connection.
That’s the power of how to persuade.”
And it helped.
But truthfully, I still got nervous
as the argument date approached.
And I knew that even though argument
was about getting
into someone else’s shoes
and empathizing,
I needed to have a solid core first.
So I did something
outside of my comfort zone.
I wore jewelry – not just anything,
but a bracelet that my father
had worn his whole life,
until he passed away,
just a few months before the argument.
I put on a tie
that my mom had given me
just for the occasion.
And I took out my legal pad
and wrote my children’s names on it,
because that’s why I was doing this.
For them, to leave the country better
than I had found it.
I got to court, and I was calm.
The bracelet, the tie,
the children’s names
had all centered me.
Like a rock climber
extending beyond the precipice,
if you have a solid hold,
you can reach out.
And because argument is about persuasion,
I knew I had to avoid emotion.
Displays of emotion fail.
It’s kind of like writing an email
in all bold and all caps.
It persuades no one.
It’s then about you, the speaker,
not about the listener or the receiver.
Now look, in some settings,
the solution is to be emotional.
You’re arguing with your parents,
and you use emotion and it works.
Why?
Because your parents love you.
But Supreme Court justices don’t love you.
They don’t like to think of themselves
as the type of people
persuaded by emotion.
And I reverse engineered that insight too,
setting a trap for my opponent
to provoke his emotional reaction,
so I could be seen as the calm
and steady voice of the law.
And it worked.
And I remember sitting in the courtroom
to learn that we had won.
That the Guantanamo tribunals
were coming down.
And I went out onto the courthouse steps
and there was a media firestorm.
Five hundred cameras,
and they’re all asking me,
“What does the decision mean,
what does it say?”
Well, the decision was 185 pages long.
I hadn’t had time to read it, nobody had.
But I knew what it meant.
And here’s what I said
on the steps of the Court.
“Here’s what happened today.
You have the lowest of the low –
this guy, who was accused
of being bin Laden’s driver,
one of the most horrible men around.
And he sued not just anyone,
but the nation, indeed,
the world’s most powerful man,
the president of the United States.
And he brings it not in some
rinky-dink traffic court,
but in the highest court of the land,
the Supreme Court of the United States …
And he wins.
That’s something remarkable
about this country.
In many other countries,
this driver would have been shot,
just for bringing his case.
And more of the point for me,
his lawyer would have been shot.
But that’s what makes America different.
What makes America special.”
Because of that decision,
the Geneva conventions
apply to the war on terror,
which meant the end
of ghost prisons worldwide,
the end of waterboarding worldwide
and an end to those Guantanamo
military tribunals.
By methodically building the case,
and getting into the justices' heads,
we were able to quite literally
change the world.
Sounds easy, right?
You can practice a lot,
avoid displays of emotion,
and you, too, can win any argument.
I’m sorry to say, it’s not that simple,
my strategies aren’t foolproof,
and while I’ve won
more Supreme Court cases
than most anyone,
I’ve also lost a lot too.
Indeed, after Donald Trump was elected,
I was, constitutionally
speaking, terrified.
Please understand,
this is not about Left versus Right,
or anything like that.
I’m not here to talk about that.
But just a week in
to the new president’s term,
you might remember
those scenes at the airports.
President Trump had campaigned
on a pledge, saying, quote,
“I, Donald J. Trump am calling
for a complete and total shutdown
of all Muslim immigration
to the United States.”
And he also said, quote,
“I think Islam hates us.”
And he made good on that promise,
banning immigration from seven countries
with overwhelmingly Muslim populations.
My legal team and others
went into court right away and sued,
and got that first travel ban struck down.
Trump revised it.
We went into court again
and got that struck down.
He revised it again,
and changed it, adding North Korea,
because we all know,
the United States had a tremendous
immigration problem with North Korea.
But it did enable his lawyers
to go to the Supreme Court and say,
“See, this isn’t discriminating
against Muslims,
it includes these other people too.”
Now I thought we had
the killer answer to that.
I won’t bore you with the details,
but the thing is, we lost.
Five votes to four.
And I was devastated.
I was worried my powers
of persuasion had waned.
And then, two things happened.
The first was,
I noticed a part of the Supreme
Court’s travel ban opinion
that discussed the Japanese
American interment.
That was a horrific moment in our history,
in which over 100,000 Japanese Americans
had been interned in camps.
My favorite person
to challenge this scheme
was Gordon Hirabayashi,
a University of Washington student.
He turned himself in to the FBI,
who said, “Look,
you’re a first-time offender,
you can go home.”
And Gordon said,
“No, I’m a Quaker,
I have to resist unjust laws,”
and so they arrested him
and he was convicted.
Gordon’s case made it
to the Supreme Court.
And again, I’m going to do that thing
where I quash any sense
of anticipation you have,
and tell you what happened.
Gordon lost.
But he lost because of a simple reason.
Because the Solicitor General,
that top courtroom lawyer
for the government,
told the Supreme Court
that the Japanese American internment
was justified by military necessity.
And that was so,
even though his own staff had discovered
that there was no need
for the Japanese American interment
and that the FBI
and the intelligence community
all believed that.
And indeed, that it was motivated
by racial prejudice.
His staff begged the Solicitor General,
“Tell the truth, don’t suppress evidence.”
What did the Solicitor General do?
Nothing.
He went in and told
the “military necessity” story.
And so the Court upheld
Gordon Hirabayashi’s conviction.
And the next year, upheld
Fred Korematsu’s interment.
Now why was I thinking about that?
Because nearly 70 years later,
I got to hold the same office,
Head of the Solicitor General’s Office.
And I got to set the record straight,
explaining that the government
had misrepresented the facts
in the Japanese interment cases.
And when I thought about the Supreme
Court’s travel ban opinion,
I realized something.
The Supreme Court, in that opinion,
went out of its way
to overrule the Korematsu case.
Now, not only had the Justice
Department said
the Japanese interment was wrong,
the Supreme Court said so too.
That’s a crucial lesson
about arguments – timing.
All of you, when you’re arguing,
have that important lever to play.
When do you make your argument?
You don’t just need the right argument,
you need the right argument
at the right moment.
When is it that your audience –
a spouse, a boss, a child –
is going to be most receptive?
Now look, sometimes,
it’s totally out of your control.
Delay has costs that are too extensive.
And so you’ve got to go in and fight
and you very well may, like me,
get the timing wrong.
That’s what we thought in the travel ban.
And you see,
the Supreme Court wasn’t ready,
so early in President Trump’s term,
to overrule his signature initiative,
just as it wasn’t ready to overrule FDR’s
Japanese American interment.
And sometimes,
you just have to take the risk.
But it is so painful when you lose.
And patience is really hard.
But that reminds me of the second lesson.
Even if vindication comes later,
I realized how important the fight now is,
because it inspires, because it educates.
I remember reading a column
by Ann Coulter about the Muslim ban.
Here’s what she said.
“Arguing against Trump
was first-generation American,
Neal Katyal.
There are plenty of
10th-generation America-haters.
You couldn’t get one of them to argue
we should end our country
through mass-immigration?”
And that’s when emotion,
which is so anathema to a good argument,
was important to me.
It took emotion outside the courtroom
to get me back in.
When I read Coulter’s words, I was angry.
I rebel against the idea
that being a first-generation American
would disqualify me.
I rebel against the idea
that mass immigration
would end this country,
instead of recognizing that as literally
the rock on which this country was built.
When I read Coulter,
I thought about so many things in my past.
I thought about my dad,
who arrived here
with eight dollars from India,
and didn’t know whether to use
the colored bathroom or the white one.
I thought about his first job offer,
at a slaughter house.
Not a great job for a Hindu.
I thought about how, when we moved
to a new neighborhood in Chicago
with one other Indian family,
that family had a cross
burned on its lawn.
Because the racists aren’t very good
at distinguishing between
African Americans and Hindus.
And I thought about
all the hate mail I got
during Guantanamo,
for being a Muslim lover.
Again, the racists aren’t very good
with distinctions between
Hindus and Muslims, either.
Ann Coulter thought that being the child
of an immigrant was a weakness.
She was profoundly, profoundly wrong.
It is my strength,
because I knew what America
was supposed to stand for.
I knew that in America,
me, a child of a man who came here
with eight dollars in his pocket,
could stand in the Supreme Court
of the United States
on behalf of a detested foreigner,
like Osama bin Laden’s driver,
and win.
And it made me realize,
even though I may have lost the case,
I was right about the Muslim ban too.
No matter what the court decided,
they couldn’t change the fact
that immigrants
do strengthen this country.
Indeed, in many ways,
immigrants love this country the most.
When I read Ann Coulter’s words,
I thought about the glorious
words of our Constitution.
The First Amendment.
Congress shall make no law
establishing religion.
I thought about our national creed,
“E plurbis unum,”
“out of many come one.”
Most of all, I realized,
the only way you can truly
lose an argument
is by giving up.
So I joined the lawsuit by the US Congress
challenging President Trump’s addition
of a citizenship question to the census.
A decision with huge implications.
It was a really hard case.
Most thought we would lose.
But the thing is, we won.
Five votes to four.
The Supreme Court basically said
President Trump and his cabinet’s
secretary had lied.
And now I’ve gotten back up
and rejoined the fight,
and I hope each of you,
in your own ways, does so too.
I’m getting back up
because I’m a believer that good arguments
do win out in the end.
The arc of justice is long,
and bends, often, slowly,
but it bends so long as we bend it.
And I’ve realized the question
is not how to win every argument.
It’s how to get back up when you do lose.
Because in the long run,
good arguments will win out.
If you make a good argument,
it has the power to outlive you,
to stretch beyond your core,
to reach those future minds.
And that’s why all of this
is so important.
I’m not telling you how to win arguments
for the sake of winning arguments.
This isn’t a game.
I’m telling you this
because even if you don’t win right now,
if you make a good argument,
history will prove you right.
I think back to that acting
coach all the time.
And I’ve come to realize
that the hand I was holding
was the hand of justice.
That outstretched hand will come for you.
It’s your decision to push it away
or to keep holding it.
Thank you so much for listening.