The fallout from Neal Katyal’s TED Talk continues. I have received messages from judges, Supreme Court practitioners, members of the Supreme Court press corps, law professors, law students, and more. The universal consensus is that Katyal’s performance was a complete and total embarrassment. Usually my takedowns infuriate half the crowd and enrapture the other half. But for Katyal, the verdict is unanimous.
One of the more bizarre aspects of the talk is that Katyal took a shot at Judge Michael McConnell. Katyal also suggested that McConnell lobbied Jason Willick of the Washington Post to write the column urging the former judge to argue the case before the Supreme Court.
Three weeks before that argument, one of my own teammates decided to try and take me down so that he could argue the case. He campaigned, he lobbied, he made calls. Just a few days before the argument, about two weeks, The Washington Post runs an editorial somehow, and I’m going to read this to you word for word: “Strategic mistake.” I read it over breakfast. Look, I don’t begrudge the guy. I mean, whatever. (Laughter) I had more important things to do because I wasn’t replaced.
I responded:
These are some serious allegations. I have known McConnell for a very long time. He is, if anything, overly charitable, and does not play dirty. I would find this sort of behavior to be entirely out of character for McConnell. Indeed, I would find it far more plausible if Neal Katyal had lobbied the client to argue the case over McConnell. After all, it would have made eminent sense for the conservative former judge to argue before the conservative Supreme Court, even if it made sense for Katyal to argue before the liberal Federal Circuit.
Now, Jason Willick of the Washington Post has responded.
Katyal apparently is still bitter about the column, which is his right, but he used the TED talk as a platform to smear McConnell. “Three weeks before that argument, one of my own teammates decided to try and take me down so that he could argue the case,” Katyal said. “He campaigned, he lobbied, he made calls. Just a few days before the argument, about two weeks, The Washington Post runs an editorial somehow, and I’m going to read this to you word for word: ‘Strategic mistake.'”
The implication that McConnell put me up to writing the piece is simply false. I covered the tariffs case closely as it wound its way through the courts. I heard through the grapevine about the plans for the Supreme Court argument, which weren’t a secret in D.C. legal circles. I decided after discussing with colleagues that it was in the public’s interest to know about the legal strategy behind such an important case for America’s separation of powers.
Burning man, pants on fire?
Willick writes further how Michael McConnell played a pivotal role in the briefing, which Katyal entirely ignored:
Why the Liberty Justice Center — the donor-funded nonprofit that sponsored the tariff litigation — decided to pass over McConnell for Katyal remains a mystery. But after the Supreme Court’s decision came down, Sara Albrecht, the group’s CEO, emailed to me that my piece had “overlooked the central role Michael [McConnell] played as Counsel of Record directing the brief and shaping the arguments presented to the Court.”
McConnell’s “central role” is apparently lost on Katyal.
I still think it far more likely that Katyal persuaded LJC to take the argument away from McConnell, without McConnell’s knowledge. This sort of thing happens all the time with the Supreme Court bar.
What next? At some point clients could decide that Katyal hurts their case more than he helps.
In any case, Katyal’s TED Talk performance highlights the very concerns I raised in the column. The plaintiffs won despite Katyal, not because of him. Supreme Court lawyers aren’t a humble bunch, but this level of self-aggrandizement is a bad look. So is publicly disparaging a co-counsel.
The Liberty Justice Center also challenged Trump’s second wave of tariffs, and the question could come back before the justices. Supreme Court litigants might need to start considering whether their interests are best served by a runaway ego.
Chief Justice Roberts famously said, “If I’m going to have heart-bypass surgery, I wouldn’t go to the surgeon who calls me up.” Likewise, sophisticated clients should not pick a Supreme Court advocate based on an AI-enabled TED Talk.
