Neal Katyal

People who know it back to front will tell you the Constitution is in some ways miraculous.

39 men, one as young as 26, another as old as 81, debated for 3 months every word in a document that still guides our government today.

They distributed power between two kinds of lawmakers-- federal and state judges and one president.

They built in checks and balances, knowing some of us will grasp for power by any means.

And ironically, the document itself assured rights to one group over all others.

And though amended, it's still sometimes used to hoard power.

Georgetown Constitution Law professor Neal Katyal has argued in front of the Supreme Court 47 times, cases involving Nestle and NASA, the Affordable Care Act, Donald Trump, and the driver of Osama bin Laden.

He is also the former Solicitor General and the very proud son of Indian immigrants.

I'm Kelly Corrigan, this is "Tell Me More," and here's my conversation with avowed centrist, devoted first-generation American, and one of "GQ's" Men of the Year, Neal Katyal.

♪ ♪ When you look at the Constitution, what parts astonish you and what parts will we be arguing until the end of time?

First of all, the Constitution's only about 3,000 words.

And so you think about like op-ed pieces we've written are like 3,000 words.

Think about what kind of genius it takes to write that blueprint for a new nation.

And Chief Justice John Marshall, in the greatest legal opinion ever, in "McColloch vs. Maryland," in my judgment, he said, you know, the Constitution just marks the great outlines.

It's a document intended to endure for ages to come.

The only way that works is by having a document that's flexible.

To me, the great thing about the Constitution is its suppleness.

And so it can adapt to the various crises of human affairs as the Chief Justice put it in McCulloch.

What are we going to fight about?

I mean, you know, obviously, privacy and equality and religion are central to the kind of modern debates at the Supreme Court.

I am concerned about where the Supreme Court is going on these issues.

You know, I have enormous respect for each of the 9 individually.

I've argued, obviously, before them many times, but I think collectively this group of 9 is more conservative than any Supreme Court in our lifetimes.

I wondered if because we are prone to our nature and that our nature wants to reach consensus and conclusion and leave uncertainty behind as fast as possible, if when you enter the courtroom, you're pretty much talking to a room full of people who have already made their mind up.

It's feeling like that a bit more than in past Courts.

Now, in the past it was justices like Kennedy, O'Connor, Souter, Blackmun, people who even if they were appointed by Republican presidents, often voted so-called liberal in the liberal way.

They had an open mind.

I mean, to me, Justice Kennedy was kind of the ideal justice because every time I'd go before the Court, I could see he hadn't made up his mind, and he's listening and he's struggling, and sometimes almost his face had agony in it because he just couldn't figure out what to do.

He'd hear an argument by my great opponent.

He'd like, "That sounds good."

Then he'd hear my argument, like, "That sounds good."

That's kind of what you want in a judge, and we're losing, unfortunately, a bit of that.

I just want 9 open-minded, smart individuals.

That to me is what the Supreme Court is at its best.

How many of the 9 right now are open-minded, smart individuals?

Well, it's going to depend on the case.

All of them are smart.

I mean, that--you know, there are, I think, some, you know, attacks on some of the justices for being dumb or this or that, that I don't buy at all.

The open-mindedness is going to vary case by case, but it's less and less.

I look at the abortion decision that happened earlier this year, and that is a heartbreaking decision.

More than heartbreaking.

It is a decision that sets women back by decades, centuries, perhaps.

I kind of can't fathom 5 justices on the Supreme Court doing such a thing.

And in part because to me, one of the things I love about the Supreme Court is its respect for precedent with the rule.

It's called stare decisis.

And the idea behind it is a kind of Edmund Burke idea that there's a wisdom in past generations and how other justices have-- other jurists have done things traditionally, and that's what gives our legal system stability.

And in--so "Roe vs. Wade" was a decision in 1973.

It was a 7-2 decision at a time when 7 of the justices on the Supreme Court appointed by Republican presidents, but still they reached that decision.

Justice Blackmun wrote the decision, nominated by a Republican president.

And then the Republican Party made it a campaign pledge to try and overturn "Roe vs.

Wade."

And they thought Roe was going to be overturned.

And lo and behold, those justices actually came together in 1992 in a case called "Planned Parenthood vs. Casey" and said, look, Roe might be right, it might be wrong.

We understand they're all sorts of criticisms about it, but it is woven into the fabric of the land.

It's critical to women's equality, and if we overturn it now, it's going to undermine the Court's legitimacy.

It'll make it look like we're not doing law, we're just doing politics.

Those were Republican justices in 1992.

And I think this is one of the most unsettling facets of this overturning.

If precedent isn't the way, then what is it?

Or put differently, if they can overturn "Roe vs. Wade," they can overturn anything.

Because Roe is actually the super precedent.

It's the hardest decision to overturn because of what those justices said in 1992, that it's so woven into the fabric of the land.

I mean, it's one of the few decisions that Americans know by name.

I know.

But they did.

But they overturned it.

And if they can do that, I'm worried about marriage equality, something I spent 4 years working on.

I'm worried about the right to contraception, the right to privacy.

All sorts of things that we have taken for granted over the last years are now squarely in the target of some justices on the Supreme Court.

What will we make decisions based on if not precedent?

I'm hopeful that precedent does make a return to command a majority of the Supreme Court.

And in particular I'm looking at Justice Kagan and what she has been saying not just in the last year, but for the last 10 years is how important legal precedent is to the stability of the law.

And her voice, I think, will have an outsized influence over time.

So that's my hope.

♪ You know how you can quote the Bible to support a whole bunch of different positions?

Is that also true of the Constitution, that there's something there for anybody who wants to make any argument?

No, I think the Constitution does have a series of meanings, and I think also history does.

I'm worried about what this Supreme Court has done, for example, on gun control.

So what they've done is they've said, well, we've gone back and looked at the history of the right to bear arms, and it means that everyone in America has a right to carry a concealed firearm.

I'm sorry, that is not in the history and not in the text of the Constitution.

So words have meaning, history has meaning.

These folks have distorted that history.

It's got to have some more serious purpose and integrity behind it, and that's to me what law is.

Law is not politics.

You're going to reach different results if you're a lawyer than you are from reaching what you would do as a politician.

It does bring up the need for a greater understanding and appreciation and respect for history.

There is a dearth of information about our history, which is so beautiful and so tragic in all sorts of ways.

It's not being taught.

My next big project is to teach kids through a TV series the Constitution and our history.

When you think about the standard of a document being evergreen, do you ever think, Well, maybe we should bake in that at 100 million people or 200 million people or 300 million people or some number of years that we should automatically reconsider this document?

It's such a high bar.

It is a high bar.

Jefferson's proposal at the founding was to do very that.

Like, every generation have a new constitution.

Whew.

I think stability is really important in any governmental system.

Our constitution's endured because it's got that suppleness built it into it.

I certainly wouldn't want to be guided by the dead hand of 1787, but I think we're not.

I mean, you know, everything from women or minorities being able to vote and be equal participants in society, that's all result of the Constitution being flexible and allowing an amendment process and the like.

I think the alternative to me scares me.

If we had a constitutional convention right now, I don't know if the First Amendment survives.

Sometimes you see on cable news, in the breaking news, because everything's breaking news, in the chyron, that there's going to be a constitutional crisis.

Has there ever been a moment in your life as an attorney where you thought this really might come to pass?

There were a couple of days during the election in 2020 where Trump was doing such outrageous things, and, of course, January 6th itself and the attack the Capitol, where I felt our nation's fundamental values were under attack, that we had put someone in power as president who cared more about himself than constitutional governance.

I felt pretty confident the system would hold in part because Donald Trump was such a buffoon at doing what he was doing.

I worry that we're losing because of tribalism in our current democracy and the idea that you can only agree with your friends and you have to disagree with everyone else and you have to go to war against them and attack them and attack their motivations.

I think we're losing a lot of what it means to be a resilient democracy.

The day that Justice Breyer retired, I typed out an op-ed about his character of always respecting the other side to go and say, "Hey, I'm going to listen to you.

"Maybe I'll disagree ultimately, but I want to hear you out."

And I think if citizens did a little more of that, we'd be a much healthier democracy.

You saw Guantanamo before you started arguing cases.

And then it turned out that your very first case in front of the Supreme Court was about Guantanamo.

Tell us about that case.

After the nation was horrifically attacked on September 11th, I was trying to figure out what to do, and I started working with first responders.

I wasn't particularly good at it, but I tried.

And then on November 13, 2001, two months later, President Bush announced these military trials at Guantanamo for suspected terrorists.

And I thought to myself, "That is totally unconstitutional."

And so, I did what a law professor does.

I wrote a law review article about it, I testified on the Hill.

Nobody paid any attention to any of that.

And so ultimately, I decided, look, I really care about this.

The idea of having an illegal black hole at Guantanamo is anathema to me as a United States, you know, citizen, lawyer, et cetera.

And so I created a test case.

I had a friend at the Pentagon who I was able to use to get a letter to a Guantanamo detainee to say, "I'd like to represent you."

And that detainee who got the letter ultimately turned out to be Osama bin Laden's driver.

So, I went to Guantanamo.

They made it really hard for me.

I take a bus to a boat to a van that takes me ultimately to meet my client, Mr. Salim Hamdan.

And he is in leg irons in a solitary cell, which he'd been in for 10 months.

He hadn't seen another human face.

Guards wearing masks, so he couldn't see their face.

And he looks at me and he says, "I need to talk to you" through the translator.

And I think he's going to yell at me.

He's been there for 10 months, hasn't seen another human being.

And he says, "Why are you doing this?

Why are you representing me?"

And I remember being so taken aback.

So I say, "Look, my parents came here from another country, "and they didn't come because of the quality "of its sports teams or the quality of its soil.

"They came for one simple idea.

"They could land on its shores, "their children would be treated fairly, "they'd be treated fairly.

Not perfectly, but better than any other country on Earth."

And I said to him, "You know, this is the first time "in my life where that promise that my parents felt "for why they came is being betrayed, "because this is the first time ever in our history, "through every war in which we've set up a different system of justice for non-U.S.

citizens."

If you're a U.S. citizen and you're accused of the worst crime, detonation of a weapon of mass destruction, you still get the Cadillac system of justice, the American civil trial system, but if you're a non-citizen or one of the 12 million green card holders, like my parents, or 7 billion people around the planet, you can be accused of a far less crime, but you get the beat-up Chevy version of justice at Guantanamo.

And I said we've just never done that.

The Constitution and the Fourteenth Amendment says-- guarantees equal protection of the law to all persons.

All persons.

It doesn't use the word "citizens."

That's why I did that case, because it was a fundamental betrayal of our promise of equality.

And you won.

Everyone thought we'd lose that case.

And when we won it in the Supreme Court, it definitely changed my life.

♪ Your father came to this country with $8.

What was his first job?

His first job--he was trained as a chemical engineer.

And his first job was actually at a slaughterhouse, which is not a great job for a Hindu.

He was a chemist at a pharmaceutical plant, and he just worked his way up.

He worked super hard.

It's amazing to me, like, someone leaving all their friends and family behind with very little because of a dream that will be better for their kids.

I just think that's the most remarkable-- I know.

I mean, it's the ultimate romantic American story, you know, and then look, his son's arguing in front of the Supreme Court.

I mean, that's the damnedest thing.

And your mom, she was a pediatrician.

My mom's a pediatrician.

She also came here separately from my dad with very little, but she did have a medical degree and a internship at Children's Hospital Boston.

Oh, wow.

And so...

So then they kept on going back to India to interview candidates for marriage.

It was kind of an arranged marriage, but not really.

Both of them were really picky.

And their parents were getting annoyed, but they met each other and decided in 5 minutes to get married.

And it worked.

It worked beautifully.

And your--you said your mom is a pediatrician, like she's still practicing.

My mom is a pediatrician.

She's 87 years old or so.

We don't know because the village where she was born didn't keep records.

But she still practices full time.

She tried to retire last year and got bored.

So she went back to work.

Unbelievable.

What are their names?

Pratibha and Surendar.

And you said that you think immigrants love this country more.

I think if you've known another world and another government, and you've seen, for example, like my parents, the corruption there, or the lack of equality, and then you see this country, for all its flaws, and there are so many, we are a more perfect union.

I mean, one of my long-term dreams is to build a museum devoted to immigration and refugees, because I think that's the path by which so many people have come to this country, and it's the story of America, and it's not actually being told.

♪ Tell me about the day Obergefell came down.

So the marriage equality cases were really interesting.

There was a whole cast of characters and people who did far more than I did and who'd been committed for decades to this moment.

And there was a big debate in the community, are we going too fast?

Is the court going to be ready to recognize a right to marriage equality?

Ultimately, I sided with the people who said we don't have time to wait.

There are people who may pass away who want to get married, people who want to have children and families and whatever.

How can we just sit on our hands and wait for a better time?

And I remember, we would trudge up to the Supreme Court at 10 A.M. every day waiting for decisions to come down.

We knew it would be the last day of the term, like that's normally how it is, which is around June 30th.

But we were all there, I think it was around June 27th.

And we walk into the courtroom and on one side of the outside plaza, about 100 people saying gay marriage is horrible and another hundred saying gay marriage is awesome.

We walk into the courtroom and the Chief Justice says, "Justice Kennedy is announcing the opinion in Obergefell."

And so that felt good to us because Justice Kennedy was very sympathetic in general to LGBT rights, but he asked a lot of hard questions at the oral argument, so we weren't totally sure.

And then Justice Kennedy for about 8 minutes is reading his opinion, and it's all about how the tradition of marriage is between one man and one woman.

So we think that we've miscalculated, that basically we've lost this case.

Justice Kennedy is saying the tradition of marriage is between one man and one woman.

He pauses and says, "But that tradition does not stop here."

And then he talks about the American tradition of equality.

And, like, it still brings tears to my eyes.

I was thinking about my sister who is gay.

I was thinking about so many of my friends and what they've gone through.

And you hear this 5-4 decision that says that there is now a right for people to marry whomever they want to marry.

And we walked out of the courtroom and there are about 7,000 people on the Supreme Court Plaza, arms linked, singing "America the Beautiful," the gay pride flags swinging in the wind along with the American flag.

It was one of the most beautiful sights of my life.

I think about that as what law is ultimately.

That is the soul of law.

It's the soul of this country at its best, that we are a more perfect union.

We're making progress.

The arc of justice bends that way, but it's because all those people bent it.

I have heard it said that we cannot systematically protect democracy from bad actors, that that work really rests with the people, that in America, the people are king.

How do you think we're doing as a citizenry?

Popular sovereignty is the essence of our constitution.

Obviously, the people are king.

I'm worried now that we are becoming more tribal.

I'm worried that we're becoming more extreme and not able to listen to folks on the other side.

We need to cultivate a little bit more respect for listening to one another.

I think that is being diminished, and our political leaders are part of that problem because they just demonize the other side.

At some point, we need to figure out a way to stop this cycle.

It's going to require people like you who talk about these things, who bring it to viewers' attention, that say enough of this, let's figure out how to get back to a democracy.

And what do you think it takes to be a great citizenry?

Like, there's got to be some role for K-12 education in all this.

And then there's also Samantha Power, who we interviewed who said we should all go to a naturalization ceremony once a week because it reminds us how desperately people want to be here.

I love the Samantha Power idea of a naturalization ceremony.

Every time a judge invites me to perform one, I do, and I bring my kids because it's so powerful a reminder of how great this country is and how many people want to be here.

So that our jury service or even public schooling or civics education.

All that's really, really important.

But I guess I have a more kind of fundamental, maybe a hokey answer, but it's really love.

I mean, and if you think about every religious tradition, it's all about trying to see the inner light in someone else who thinks differently than you.

I feel like we've lost that as a society, and it isn't something actually that government can ultimately teach.

However one wants to come out on these policy issues, there should be a fundamental respect for people who are different.

And that's what I think religion is at its best.

I think that's what this country is at its best.

♪ Are you ready for the speed round?

Bring it on.

First concert.

Shaun Cassidy.

Oh!

Best live performance you've ever seen.

The National in Ann Arbor 4 years ago.

I'd seen them about 30 times, but this was the first time I got to meet them, and they put me on the side stage.

Oh, my God.

30 times?

If your did high school did superlatives, what would you have been most likely to become?

A boring doctor.

What's your go-to mantra for hard times?

Bad can be good.

That's great.

Is there anyone you would like to apologize to?

I'd like to apologize to my sister.

When my dad fell ill with brain cancer, it really fell on her to take care of him more than me.

That's always haunted me.

When was the last time you cried?

When--I was Special Prosecutor in the George Floyd case, and when we got the verdict, I cried, and my kids thought we had lost because all they saw was my tears, but we won.

What's something big you've been wrong about?

I thought that the country's laws would hold us together, but it's really the norms and personalities, and as we've seen, they can come apart.

If you could pass one law or overturn one Supreme Court case.

Easy.

Dobbs, the recent abortion decision.

If your mother wrote a book about you, what would it be called?

"My Amazing Son."

We have something at "Tell Me More" called Plus One, where we want to give you a chance to shout out somebody who's instrumental to your thinking or your well-being.

Who's your plus one?

His name is Guido Calabresi.

He is the first judge for whom I clerked.

He was my dean at Yale Law School and then a very prominent judge on the Court of Appeals.

And what does he help you do better?

Everything.

First of all, I learned that idea that good ideas come from anywhere.

Second, his love of other people.

This is a guy who every time a former student calls, no matter how busy he is, he'll take the call, help the person.

And so that idea of trying to treasure every human being comes a lot from him.

And then third and last, he had an identity of being an immigrant.

And I'd never had a role model before who had that as such a big part of who they were.

And he loves this country to no end.

And he cares so much about the freedoms and rights that we have.

In my ideal Supreme Court, there's 9 Guido Calabresis.

Great.

Here's to Guido.

♪ Worst case, best case, most likely case, America in 2030, what does it look like?

Better.

I'm an optimist.

I was in a tiny town in Colorado on July 4th, hundreds of women protesting the decision, signs saying, "Ruth Sent Us" and things like that.

You know, that to me is what the country is all about.

I don't think we lose that fighting spirit.

I think that America can totally turn the corner on this toxicity and the poison can work itself out of the system.

Thanks a lot for saying yes.

It was really a joy to talk to you.

Thank you.

It was a pleasure.

♪ If you enjoyed this conversation, you'll love our episodes with Kevin Young, W. Kamau Bell, and Anna Deavere Smith.

They're all on pbs.org/Kelly, or you can listen to them on my podcast, "Kelly Corrigan Wonders."

♪ ♪