Neal Katyal I Hate You
The Big Lawyer class needs a reckoning
There’s a lot wrong in this country these days, I don’t need to tell any of you that. There’s also all sorts of symptoms and causes, the American decline has been a long-time coming and we’re at a reckoning point with a 6-3 conservative Supreme Court hellbent on upending the rule of law.
But, there’s nothing I can do about that. So instead, I figure I can do what I do best. Dramatically write about how one asshole is ever so slightly responsible for this while he loves to pretend he isn’t.
Neal Katyal was once the Solicitor General for President Obama, arguing countless Supreme Court cases. He has parlayed that into a huge following, and cult-hero status amongst those in the “Resistance” left.
As Politico put it, “In 49 of the 50 states, Neal Katyal is known as a stalwart defender of democracy. And then there’s New Jersey.”
That was part of a piece on Katyal’s involvement in restoring New Jersey’s “party-line” voting system which is an intensely un-Democratic process designed to protect party endorsed candidates at all costs.
Where Politico went wrong wasn’t in criticizing Katyal’s involvement in New Jersey, it was that he has done nothing to defend anything in the other 49 states.
A lot of these, “better than everyone else,” types have a personality that insists that they have never, and can never, be wrong. It doesn’t matter what they once said, or who they once represented, they are right because they are smart and fancy lawyers who went to Yale.
This calculus shows through in clips like this, on national TV defending our democracy!
https://x.com/amanpour/status/1807836206484295944
The problem though is that the world doesn’t work like that, our actions and choices aren’t absolved only because of our current positions.
Supreme Court rulings aren’t born out-of-thin air either, they’re primarily made from those who actually, you know, sit on the court.
Take for instance then, six years ago, this blistering op-ed from Katyal that has aged like a fine boxed wine.
https://www.nytimes.com/2017/01/31/opinion/why-liberals-should-back-neil-gorsuch.html
Right about now, the public could use some reassurance that no matter how chaotic our politics become, the members of the Supreme Court will uphold the oath they must take: to “administer justice without respect to persons, and do equal right to the poor and to the rich.” I am confident Neil Gorsuch will live up to that promise.
Wow. Strong words. I wonder if that same justice just a few years later contributed to the majority ruling that made the Presidency into a King after eliminated Roe.
You can’t go on CNN and decry the death of democracy from a Supreme Court that you advocated for! The cognitive dissonance that entails is astounding.
Garnering almost a million followers while going on cable news regularly as an expert should imbue you with a sense of responsibility that your words can and will be influential. For as much as the NYT Op/Ed page should never, ever, be listened to it does exert real influence.
There is a direct line from that Op/Ed, no matter what its real influence was, to Dobbs and to Presidential immunity. That is on his hands.
Alas, no hero of democracy lawyer would be complete without having extra additional blood on their hands. Katyal is a partner at Hogan Lovells, one of the largest and most influential law firms in the world. He undoubtably makes millions for his presence there, and we know that he bills out at over $2,000 an hour.
However, I’m not one to pocket watch, if someone is willing to pay that fine. I am willing to client watch though. I don’t care if it’s your job, arguing cases for bad, and in some cases literally life ending, corporations is an unambiguous moral failing.
Make no mistake, that is worlds different from defending a person criminally accused, who absolutely deserves proper and fair representation. Our constitution in fact (at least for now) demands it! Defending corporations from wrong-doing, and being seen as the fixer to save them, is far different.
For instance, in the case of Johnson and Johnson’s bankruptcy when he was parachuted in to help them starve off going broke because their baby powder contained asbestos and caused cancer. From Slate-
Plaintiffs appealed to the 3rd Circuit, and J&J did what a lot of shady companies do when they want an appellate court to adopt a cockamamie legal theory that lets them avoid ever facing a jury trial: hire Neal Katyal. (Plaintiffs hired David Frederick. If you’re so inclined, the two-and-a-half-hour oral argument is available here.) And on Monday, the court sided firmly with the plaintiffs.
I find it difficult to reconcile putting on the aura of a democracy defender while simultaneously representing companies trying to avoid paying massive penalties for giving thousands ovarian cancer a result of their products.
I am firmly convinced that you can still be a lawyer while being a good and ethical person. I do not believe that being parachuted in to help evil companies win cases on horseshit follows that narrative.
Another example, more personal to me. Worker’s rights. Something that should be foundational in any working Democracy.
Katyal, was brought into both Janus v. AFSCME and Epic v. Lewis (on behalf of the corporations obviously) to argue key briefs that, of course, ultimately proved successful at the Supreme Court level.
Just look at the firms self-congratulatory press release about their win!
Washington, D.C., 21 May 2018 – Hogan Lovells, in conjunction with several other law firms, secured a major Supreme Court victory today in Epic Systems Corp. v. Lewis, a landmark case preserving the right of employers to enter into individualized arbitration agreements with their employees. Ruling in favor of Hogan Lovells’ clients, the Court decisively rejected the assertion that class action waivers are forbidden by the National Labor Relations Act (NLRA).
The victory was particularly important because the National Labor Relations Board had taken the opposite position, holding that class action waivers in individual employment contracts unlawfully impede an employee’s right to engage in “concerted activities” under Section 7 of the NLRA. The Supreme Court rejected that view. In a 5-4 decision, Justice Gorsuch disagreed with the Board’s interpretation of Section 7, and reiterated that the Federal Arbitration Act (FAA) contains an “emphatic” command to honor arbitration agreements. The Court explained that nothing in the NLRA permits courts to ignore that clear command with respect to class action waivers.
It goes on.
Partner and Appellate practice co-head Neal Katyal has been involved in this case since the certiorari stage, when he and his appellate team were brought in by Epic Systems to seek certiorari review of an unfavorable Seventh Circuit ruling. Later, two other petitions were filed, and the respondents in one (Murphy Oil) also hired Hogan Lovells.
Katyal was joined on the merits briefing on behalf of Epic Systems and Murphy Oil by Senior Associates Colleen Sinzdak and Thomas Schmidt.
Now I’ll be damned, the same Neal Katyal who was in the Gray Lady advocating for Gorsuch to be nominated won a narrow supreme court case eroding worker right’s written by Gorsuch. What a coincidence.
Bragging about being on the other side of the National Labor Relations Board is not something that I typically would advise. It paints a certain look as to who you are as a person, and what kind of law firm you work for.
If you want to represent bad people to make a buck, fine, we all make choices. But you cannot do that while also portraying yourself as a democracy defending super-hero.
In these dark days we can’t do much, but calling shitty lawyers names in a newsletter sure is a lot of fun.
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