Much like high-profile D.C. lawyers before him such as David Boies and Ted Olson, Neal Katyal seems to have a hand in multiple hot-button issues. He argued against the Trump administration's "Muslim ban" before the Supreme Court during its past term. He also drafted the special-counsel regulations under which Robert Mueller operates. Late last week, Harrison Cramer asked Katyal about Supreme Court nominee Brett Kavanaugh, the future of Roe v. Wade, and arguments over executive power.
You’ve argued a number of high-profile cases, most recently against President Trump’s travel ban, which split the Court along ideological lines. How does your legal strategy change in the post-Anthony Kennedy era?
Not tremendously. When I first started as a Supreme Court advocate, I spent a lot of time trying to figure out what each justice would think. I’d read the opinions of each justice, try to get people in moots to take positions that were supposedly aligned with particular justices, and so on. When I went to the solicitor general’s office in 2009, however, I really took to heart the office’s ethos, which was just to make your best arguments and don’t sit there and try to psychoanalyze the individual justices. That was fabulous advice, and so I don’t think the loss of Justice Kennedy really alters the way we will prepare for arguments. But it may alter the types of cases that people bring to the Supreme Court. I expect, for example, that death-penalty challenges may not be brought as often, or those involving LGBT issues.
Does Chief Justice John Roberts’s endorsement of the “facially” neutral travel ban implicate other aspects of Trump’s immigration agenda?
The chief justice’s opinion in the travel-ban case is an obvious and huge disappointment, and I suspect that it will not survive the passage of time and will be overruled. But for now, the opinion does seem pretty confined to the travel ban itself (and really only to the third version of it), so it’s not clear that the language about facial neutrality will carry over into other areas. Notably, the Court did not accept all the government’s arguments about how challengers could not even bring a suit in the first place, and so I think the Supreme Court has signaled that the courts will be open to hear challenges to other aspects of President Trump’s immigration agenda.
Democrats have cited Judge Kavanaugh’s broad interpretation of executive authority as grounds for their opposition. Are these concerns warranted?
Particularly when we have an executive who does not value the letter and spirit of the Constitution, an independent judiciary is critical. Judge Kavanaugh is a very smart and accomplished individual, and if he were replacing a different justice, like Justice Scalia last year, or Justice Thomas this year, I think the confirmation would be much, much easier. But he is nominated to replace Justice Kennedy. And Justice Kennedy has stood up to executive power in the past, most prominently with the Guantanamo detainees several times. The Senate will have to carefully evaluate Judge Kavanaugh’s writings and opinions over the next few months. One bright spot: He did side with Salim Hamdan, Osama bin Laden’s driver and my former client, in a D.C. Circuit opinion a few years ago.
A related concern for Democrats is Kavanaugh’s position on the Mueller investigation. As someone who helped write the federal regulations protecting the special counsel, do you worry these rules are vulnerable to legal challenge?
They aren’t vulnerable to legal challenge, which is why President Trump is trying to attack them politically. They are rock-solid legally, as prominent lawyers on both the Left and Right have agreed.
Do you expect conservatives will mount a direct legal challenge to Roe v. Wade?
I do suspect that such a challenge is coming. It’s been a long wish for certain conservatives. One need only look at the Wayfair tax case, decided this year, for a template of how. South Dakota wanted to tax internet sellers like Amazon, despite a Supreme Court opinion from 1992 that said they couldn’t do that. So they passed the law anyway, and set it up for an immediate challenge that rocketed to the Supreme Court. I suspect one state or another will adopt the same strategy on abortion restrictions.
On what other issues might Kavanaugh break with the conservative bloc? Or will he change the Court in other ways?
It’s always a change for all the justices when a new justice comes on board. Judge Kavanaugh is a very known quantity to them, however, as every justice knows him and his work well. He’s incredibly likable, and that’s going to put him in good stead with his new colleagues. He’s also one of the most hardworking judges in the entire nation. As far as changing the Court in other ways, he is known for bringing a laptop with him on the bench. I’ll be very curious to see if a laptop enters 1 First Street for the first time in history.