Neal Katyal's Supreme Court Advocacy Critiqued in Landmark Tariff Case

In November, I attended the oral argument in the tariff case. While I previously published a detailed analysis of the proceedings, my initial prediction regarding the vote count proved incorrect. The outcome did not align with my expectations. However, the advocacy during the case prompted significant reflection.

Here is how I described Neal Katyal's performance:

Several Justices seemed skeptical, and even frustrated by Neal Katyal's presentation. He was polished, but wooden. Far too often, it seemed like he was giving rehearsed answers, which were not entirely responsive to the questions that were asked.

Katyal may have misread the room, arriving overconfident after the Solicitor General concluded. His approach frustrated multiple justices, including Justice Gorsuch, who ultimately ruled against the government. At one point, Gorsuch directly challenged Katyal:

"Well, you're not answering my question, though, Mr. Katyal."

When questioned about the Indian Commerce Clause, Katyal admitted uncertainty:

"I don't know that I have a position on that. It maybe is a little too afield for me to…"

I noted: "Who played Justice Gorsuch in Katyal's moots? Did no one bring up the Indian Commerce Clause? General Sauer addressed this point directly during his rebuttal, so the government was ready."

Justice Barrett also posed a question about licenses that Katyal completely missed:

"Sorry. Could you say that again?"

Katyal then had to backtrack, admitting he did not concede a point. Barrett responded with a sarcastic:

"Okay."

I concluded my analysis by referencing Jason Willick's Washington Post editorial, which argued that Michael McConnell should have argued the case instead. Willick contended that respondents should have selected the conservative McConnell over the "partisan liberal lawyer." With the benefit of hindsight, I agreed with Willick. Michael McConnell:

• Clerked with Chief Justice Roberts during the Dames & Moore decision term;
• Served alongside Justice Gorsuch on the Tenth Circuit;
• Shared academic circles with Justice Barrett.

McConnell would have been uniquely positioned to present a compelling argument. His advocacy would have resonated more strongly with proponents of the separation of powers. Even Justice Alito mocked Katyal's non-delegation doctrine argument, questioning its consistency:

"I found it interesting to hear you make the nondelegation argument, Mr. Katyal. I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the nondelegation argument."

An uncomfortable laughter followed. Even Justice Kagan, Katyal's former boss, suggested one of his arguments "cuts against" him.

Ultimately, I concluded that Katyal may not have been the right advocate for this case. If the government prevails, scrutiny will likely fall on him. While Katyal's side won the case, his performance raised questions about his suitability for such high-stakes litigation.