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← How to win an argument (at the US Supreme Court, or anywhere)

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Showing Revision 8 created 09/11/2020 by Oliver Friedman.

  1. Fourteen years ago,
  2. I stood in the Supreme Court
    to argue my first case.
  3. And it wasn't just any case,
  4. it was a case that experts called
  5. one of the most important cases
    the Supreme Court had ever heard.
  6. It considered whether Guantanamo
    was constitutional,
  7. and whether the Geneva Conventions
    applied to the war on terror.
  8. It was just a handful of years
    after the horrific attacks
  9. of September 11.
  10. The Supreme Court
    had seven Republican appointees
  11. and two Democratic ones,
  12. and my client happened to be
    Osama bin Laden's driver.
  13. My opponent was the Solicitor General
    of the United States,
  14. America's top courtroom lawyer.
  15. He had argued 35 cases.
  16. I wasn't even 35 years old.
  17. And to make matters worse,
  18. the Senate, for the first time
    since the Civil War,
  19. passed a bill to try and remove the case
    from the docket of the Supreme Court.
  20. Now the speaking coaches say

  21. I'm supposed to build tension
    and not tell you what happens.
  22. But the thing is, we won.
  23. How?
  24. Today, I'm going to talk
    about how to win an argument,
  25. at the Supreme Court or anywhere.
  26. The conventional wisdom
    is that you speak with confidence.

  27. That's how you persuade.
  28. I think that's wrong.
  29. I think confidence
    is the enemy of persuasion.
  30. Persuasion is about empathy,
  31. about getting into people's heads.
  32. That's what makes TED what it is.
  33. It's why you're listening to this talk.
  34. You could have read it on the cold page,
  35. but you didn't.
  36. Same thing with Supreme Court arguments --
  37. we write written briefs with cold pages,
  38. but we also have an oral argument.
  39. We don't just have a system
    in which the justices write questions
  40. and you write answers.
  41. Why?
  42. Because argument is about interaction.
  43. I want to take you behind the scenes
    to tell you what I did,

  44. and how these lessons are generalizable.
  45. Not just for winning an argument in court,
  46. but for something far more profound.
  47. Now obviously,
    it's going to involve practice,
  48. but not just any practice will do.
  49. My first practice session for Guantanamo,
  50. I flew up to Harvard
  51. and had all these legendary professors
    throwing questions at me.
  52. And even though I had read everything,
    rehearsed a million times,
  53. I wasn't persuading anyone.
  54. My arguments weren't resonating.
  55. I was desperate.

  56. I had done everything possible,
  57. read every book,
    rehearsed a million times,
  58. and it wasn't going anywhere.
  59. So ultimately, I stumbled on this guy --
  60. he was an acting coach,
    he wasn't even a lawyer.
  61. He'd never set foot in the Supreme Court.
  62. And he came into my office one day
    wearing a billowy white shirt
  63. and a bolo tie,
  64. and he looked at me
    with my folded arms and said,
  65. "Look, Neal, I can tell
  66. that you don't think
    this is going to work,
  67. but just humor me.
  68. Tell me your argument."
  69. So I grabbed my legal pad,

  70. and I started reading my argument.
  71. He said, "What are you doing?"
  72. I said, "I'm telling you my argument."
  73. He said, "Your argument is a legal pad?"
  74. I said, "No, but my argument
    is on a legal pad."
  75. He said, "Neal, look at me.
  76. Tell me your argument."
  77. And so I did.
  78. And instantly, I realized,
  79. my points were resonating.
  80. I was connecting to another human being.
  81. And he could see the smile
    starting to form
  82. as I was saying my words,
  83. and he said, "OK, Neal.
  84. Now do your argument holding my hand."
  85. And I said, "What?"
  86. And he said, "Yeah, hold my hand."
  87. I was desperate, so I did it.
  88. And I realized, "Wow, that's connection.
  89. That's the power of how to persuade."
  90. And it helped.

  91. But truthfully, I still got nervous
    as the argument date approached.
  92. And I knew that even though argument
  93. was about getting
    into someone else's shoes
  94. and empathizing,
  95. I needed to have a solid core first.
  96. So I did something
    outside of my comfort zone.
  97. I wore jewelry -- not just anything,
  98. but a bracelet that my father
    had worn his whole life,
  99. until he passed away,
    just a few months before the argument.
  100. I put on a tie
  101. that my mom had given me
    just for the occasion.
  102. And I took out my legal pad
    and wrote my children's names on it,
  103. because that's why I was doing this.
  104. For them, to leave the country better
    than I had found it.
  105. I got to court, and I was calm.

  106. The bracelet, the tie,
    the children's names
  107. had all centered me.
  108. Like a rock climber
    extending beyond the precipice,
  109. if you have a solid hold,
    you can reach out.
  110. And because argument is about persuasion,

  111. I knew I had to avoid emotion.
  112. Displays of emotion fail.
  113. It's kind of like writing an email
    in all bold and all caps.
  114. It persuades no one.
  115. It's then about you, the speaker,
  116. not about the listener or the receiver.
  117. Now look, in some settings,
    the solution is to be emotional.

  118. You're arguing with your parents,
  119. and you use emotion and it works.
  120. Why?
  121. Because your parents love you.
  122. But Supreme Court justices don't love you.
  123. They don't like to think of themselves
  124. as the type of people
    persuaded by emotion.
  125. And I reverse engineered that insight too,
  126. setting a trap for my opponent
    to provoke his emotional reaction,
  127. so I could be seen as the calm
    and steady voice of the law.
  128. And it worked.
  129. And I remember sitting in the courtroom
    to learn that we had won.

  130. That the Guantanamo tribunals
    were coming down.
  131. And I went out onto the courthouse steps
    and there was a media firestorm.
  132. Five hundred cameras,
    and they're all asking me,
  133. "What does the decision mean,
    what does it say?"
  134. Well, the decision was 185 pages long.
  135. I hadn't had time to read it, nobody had.
  136. But I knew what it meant.
  137. And here's what I said
    on the steps of the Court.

  138. "Here's what happened today.
  139. You have the lowest of the low --
  140. this guy, who was accused
    of being bin Laden's driver,
  141. one of the most horrible men around.
  142. And he sued not just anyone,
  143. but the nation, indeed,
    the world's most powerful man,
  144. the president of the United States.
  145. And he brings it not in some
    rinky-dink traffic court,
  146. but in the highest court of the land,
  147. the Supreme Court of the United States ...
  148. And he wins.
  149. That's something remarkable
    about this country.
  150. In many other countries,
  151. this driver would have been shot,
  152. just for bringing his case.
  153. And more of the point for me,
    his lawyer would have been shot.
  154. But that's what makes America different.
  155. What makes America special."
  156. Because of that decision,
  157. the Geneva conventions
    apply to the war on terror,
  158. which meant the end
    of ghost prisons worldwide,
  159. the end of waterboarding worldwide
  160. and an end to those Guantanamo
    military tribunals.
  161. By methodically building the case,
  162. and getting into the justices' heads,
  163. we were able to quite literally
    change the world.
  164. Sounds easy, right?

  165. You can practice a lot,
  166. avoid displays of emotion,
  167. and you, too, can win any argument.
  168. I'm sorry to say, it's not that simple,
  169. my strategies aren't foolproof,
  170. and while I've won
    more Supreme Court cases
  171. than most anyone,
  172. I've also lost a lot too.
  173. Indeed, after Donald Trump was elected,

  174. I was, constitutionally
    speaking, terrified.
  175. Please understand,
    this is not about Left versus Right,
  176. or anything like that.
  177. I'm not here to talk about that.
  178. But just a week in
    to the new president's term,
  179. you might remember
    those scenes at the airports.
  180. President Trump had campaigned
    on a pledge, saying, quote,
  181. "I, Donald J. Trump am calling
    for a complete and total shutdown
  182. of all Muslim immigration
    to the United States."
  183. And he also said, quote,
    "I think Islam hates us."
  184. And he made good on that promise,
  185. banning immigration from seven countries
    with overwhelmingly Muslim populations.
  186. My legal team and others
    went into court right away and sued,
  187. and got that first travel ban struck down.
  188. Trump revised it.
  189. We went into court again
    and got that struck down.
  190. He revised it again,
  191. and changed it, adding North Korea,
  192. because we all know,
  193. the United States had a tremendous
    immigration problem with North Korea.
  194. But it did enable his lawyers
    to go to the Supreme Court and say,
  195. "See, this isn't discriminating
    against Muslims,
  196. it includes these other people too."
  197. Now I thought we had
    the killer answer to that.

  198. I won't bore you with the details,
  199. but the thing is, we lost.
  200. Five votes to four.
  201. And I was devastated.
  202. I was worried my powers
    of persuasion had waned.
  203. And then, two things happened.

  204. The first was,
  205. I noticed a part of the Supreme
    Court's travel ban opinion
  206. that discussed the Japanese
    American interment.
  207. That was a horrific moment in our history,
  208. in which over 100,000 Japanese Americans
    had been interned in camps.
  209. My favorite person
    to challenge this scheme
  210. was Gordon Hirabayashi,
  211. a University of Washington student.
  212. He turned himself in to the FBI,
  213. who said, "Look,
    you're a first-time offender,
  214. you can go home."
  215. And Gordon said,
  216. "No, I'm a Quaker,
    I have to resist unjust laws,"
  217. and so they arrested him
    and he was convicted.
  218. Gordon's case made it
    to the Supreme Court.
  219. And again, I'm going to do that thing

  220. where I quash any sense
    of anticipation you have,
  221. and tell you what happened.
  222. Gordon lost.
  223. But he lost because of a simple reason.
  224. Because the Solicitor General,
  225. that top courtroom lawyer
    for the government,
  226. told the Supreme Court
  227. that the Japanese American internment
    was justified by military necessity.
  228. And that was so,
  229. even though his own staff had discovered
  230. that there was no need
    for the Japanese American interment
  231. and that the FBI
    and the intelligence community
  232. all believed that.
  233. And indeed, that it was motivated
    by racial prejudice.
  234. His staff begged the Solicitor General,
  235. "Tell the truth, don't suppress evidence."
  236. What did the Solicitor General do?
  237. Nothing.
  238. He went in and told
    the "military necessity" story.
  239. And so the Court upheld
    Gordon Hirabayashi's conviction.
  240. And the next year, upheld
    Fred Korematsu's interment.
  241. Now why was I thinking about that?

  242. Because nearly 70 years later,
  243. I got to hold the same office,
  244. Head of the Solicitor General's Office.
  245. And I got to set the record straight,
  246. explaining that the government
    had misrepresented the facts
  247. in the Japanese interment cases.
  248. And when I thought about the Supreme
    Court's travel ban opinion,
  249. I realized something.
  250. The Supreme Court, in that opinion,
  251. went out of its way
    to overrule the Korematsu case.
  252. Now, not only had the Justice
    Department said
  253. the Japanese interment was wrong,
  254. the Supreme Court said so too.
  255. That's a crucial lesson
    about arguments -- timing.

  256. All of you, when you're arguing,
    have that important lever to play.
  257. When do you make your argument?
  258. You don't just need the right argument,
  259. you need the right argument
    at the right moment.
  260. When is it that your audience --
    a spouse, a boss, a child --
  261. is going to be most receptive?
  262. Now look, sometimes,
    it's totally out of your control.

  263. Delay has costs that are too extensive.
  264. And so you've got to go in and fight
  265. and you very well may, like me,
    get the timing wrong.
  266. That's what we thought in the travel ban.
  267. And you see,
  268. the Supreme Court wasn't ready,
    so early in President Trump's term,
  269. to overrule his signature initiative,
  270. just as it wasn't ready to overrule FDR's
    Japanese American interment.
  271. And sometimes,
    you just have to take the risk.
  272. But it is so painful when you lose.
  273. And patience is really hard.
  274. But that reminds me of the second lesson.

  275. Even if vindication comes later,
  276. I realized how important the fight now is,
  277. because it inspires, because it educates.
  278. I remember reading a column
    by Ann Coulter about the Muslim ban.

  279. Here's what she said.
  280. "Arguing against Trump
    was first-generation American,
  281. Neal Katyal.
  282. There are plenty of
    10th-generation America-haters.
  283. You couldn't get one of them to argue
    we should end our country
  284. through mass-immigration?"
  285. And that's when emotion,
  286. which is so anathema to a good argument,
  287. was important to me.
  288. It took emotion outside the courtroom
    to get me back in.
  289. When I read Coulter's words, I was angry.

  290. I rebel against the idea
  291. that being a first-generation American
    would disqualify me.
  292. I rebel against the idea
    that mass immigration
  293. would end this country,
  294. instead of recognizing that as literally
    the rock on which this country was built.
  295. When I read Coulter,

  296. I thought about so many things in my past.
  297. I thought about my dad,
  298. who arrived here
    with eight dollars from India,
  299. and didn't know whether to use
    the colored bathroom or the white one.
  300. I thought about his first job offer,
    at a slaughter house.
  301. Not a great job for a Hindu.
  302. I thought about how, when we moved
    to a new neighborhood in Chicago
  303. with one other Indian family,
  304. that family had a cross
    burned on its lawn.
  305. Because the racists aren't very good
  306. at distinguishing between
    African Americans and Hindus.
  307. And I thought about
    all the hate mail I got
  308. during Guantanamo,
  309. for being a Muslim lover.
  310. Again, the racists aren't very good
  311. with distinctions between
    Hindus and Muslims, either.
  312. Ann Coulter thought that being the child
    of an immigrant was a weakness.

  313. She was profoundly, profoundly wrong.
  314. It is my strength,
  315. because I knew what America
    was supposed to stand for.
  316. I knew that in America,
  317. me, a child of a man who came here
    with eight dollars in his pocket,
  318. could stand in the Supreme Court
    of the United States
  319. on behalf of a detested foreigner,
  320. like Osama bin Laden's driver,
  321. and win.
  322. And it made me realize,

  323. even though I may have lost the case,
  324. I was right about the Muslim ban too.
  325. No matter what the court decided,
  326. they couldn't change the fact
  327. that immigrants
    do strengthen this country.
  328. Indeed, in many ways,
    immigrants love this country the most.
  329. When I read Ann Coulter's words,
  330. I thought about the glorious
    words of our Constitution.
  331. The First Amendment.
  332. Congress shall make no law
    establishing religion.
  333. I thought about our national creed,
  334. "E plurbis unum,"
  335. "out of many come one."
  336. Most of all, I realized,

  337. the only way you can truly
    lose an argument
  338. is by giving up.
  339. So I joined the lawsuit by the US Congress
  340. challenging President Trump's addition
    of a citizenship question to the census.
  341. A decision with huge implications.
  342. It was a really hard case.
  343. Most thought we would lose.
  344. But the thing is, we won.
  345. Five votes to four.
  346. The Supreme Court basically said
  347. President Trump and his cabinet's
    secretary had lied.
  348. And now I've gotten back up
    and rejoined the fight,

  349. and I hope each of you,
    in your own ways, does so too.
  350. I'm getting back up
  351. because I'm a believer that good arguments
    do win out in the end.
  352. The arc of justice is long,
  353. and bends, often, slowly,
  354. but it bends so long as we bend it.
  355. And I've realized the question
    is not how to win every argument.
  356. It's how to get back up when you do lose.
  357. Because in the long run,
  358. good arguments will win out.
  359. If you make a good argument,
  360. it has the power to outlive you,
  361. to stretch beyond your core,
  362. to reach those future minds.
  363. And that's why all of this
    is so important.

  364. I'm not telling you how to win arguments
    for the sake of winning arguments.
  365. This isn't a game.
  366. I'm telling you this
    because even if you don't win right now,
  367. if you make a good argument,
    history will prove you right.
  368. I think back to that acting
    coach all the time.

  369. And I've come to realize
  370. that the hand I was holding
    was the hand of justice.
  371. That outstretched hand will come for you.
  372. It's your decision to push it away
  373. or to keep holding it.
  374. Thank you so much for listening.