WEBVTT

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Fourteen years ago,

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I stood in the Supreme Court
to argue my first case.

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And it wasn't just any case,

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it was a case that experts called

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one of the most important cases
the Supreme Court had ever heard.

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It considered whether Guantanamo
was constitutional,

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and whether the Geneva Conventions
applied to the war on terror.

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It was just a handful of years
after the horrific attacks

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of September 11.

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The Supreme Court had seven
Republican appointees

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and two Democratic ones,

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and my client happened to be
Osama bin Laden's driver.

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My opponent was the Solicitor General
of the United States,

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America's top courtroom lawyer.

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He had argued 35 cases.

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I wasn't even 35 years old.

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And to make matters worse,

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the Senate, for the first time
since the Civil War,

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passed a bill to try and remove the case

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from the docket of the Supreme Court.

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Now the speaking coaches say

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I'm supposed to build tension
and not tell you what happens.

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But the thing is, we won.

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How?

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Today, I'm going to talk
about how to win an argument,

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at the Supreme Court or anywhere.

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The conventional wisdom
is that you speak with confidence.

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That's how you persuade.

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I think that's wrong.

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I think confidence
is the enemy of persuasion.

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Persuasion is about empathy,

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about getting into people's heads.

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That's what makes TED what it is.

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It's why you're listening to this talk.

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You could have read it on the cold page,

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but you didn't.

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Same thing with Supreme Court arguments.

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We write written briefs with cold pages,

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but we also have an oral argument.

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We don't just have a system
in which the justices write questions

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and you write answers.

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Why?

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Because argument is about interaction.

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I want to take you behind the scenes

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to tell you what I did,

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and how these lessons are generalizable.

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Not just for winning an argument in court,

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but for something far more profound.

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Now obviously,

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it's going to involve practice,

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but not just any practice will do.

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My first practice session for Guantanamo,

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I flew up to Harvard

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and had all these legendary professors
throwing questions at me.

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And even though I had read everything,

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rehearsed a million times,

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I wasn't persuading anyone.

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My arguments weren't resonating.

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I was desperate,

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I had done everything possible,

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read every book,
rehearsed a million times,

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and it wasn't going anywhere.

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So ultimately, I stumbled on this guy,

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he was an acting coach,
he wasn't even a lawyer.

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He'd never set foot in the Supreme Court.

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And he came into my office one day
wearing a [unclear] white shirt

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and a bolo tie,

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and he looked at me
with my folded arms and said,

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"Look, Neal, I can tell

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that you don't think this is gong to work,

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but just humor me.

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Tell me your argument."

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So I grabbed my legal pad

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and I started reading my argument.

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He said, "What are you doing?"

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I said, "I'm telling you my argument."

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He said, "Your argument is a legal pad?"

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I said, "No, but my argument
is on a legal pad."

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He said, "Neal, look at me.

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Tell me your argument."

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And so I did.

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And instantly, I realized,

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my points were resonating.

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I was connecting to another human being.

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And he could see the smile
starting to form

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as I was saying my words,

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and he said, "OK, Neal.

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Now do your argument holding my hand.

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And I said, "What?"

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And he said, "Yeah, hold my hand."

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I was desperate, so I did it.

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And I realized, wow,

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that's connection.

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That's the power of how to persuade.

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And it helped.

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But truthfully, I still got nervous
as the argument date approached.

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And I knew that even though argument

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was about getting into
someone else's shoes

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and empathizing,

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I needed to have a solid core first.

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So I did something
outside of my comfort zone.

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I wore jewelry, not just anything,

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but a bracelet that my father
had worn his whole life,

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until he passed away,
just a few months before the argument.

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I put on a tie

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that my mom had given me
just for the occasion.

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And I took out my legal pad

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and wrote my children's names on it,

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because that's why I was doing this.

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For them, to leave the country better

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than I had found it.

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I got to court and I was calm.

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The bracelet, the tie,

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the children's names had all centered me.

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Like a rock climber,
extending me on the precipice.

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If you have a solid hold,

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you can reach out.

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And because argument is about persuasion,

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I knew I had to avoid emotion.

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Displays of emotion fail.

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It's kind of like writing an email
in all bold and all caps.

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It persuades no one.

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It's then about you, the speaker,

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not about the listener or the receiver.

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Now look, in some settings,

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the solution is to be emotional.

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You're arguing with your parents,

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and you use emotion and it works.

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Why?

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Because your parents love you.

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But Supreme Court justices don't love you.

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They don't like to think of themselves

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as the type of people
persuaded by emotion.

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And I reverse engineered that
in [unclear],

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setting a trap for my opponent
to provoke his emotional reaction,

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so I could be seen as the calm
and steady voice of the law.

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And it worked.

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And I remember sitting in the courtroom

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to learn that we had won.

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That the Guantanamo tribunals
were coming down.

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And I went out onto the courthouse steps
and there was a media firestorm.

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Five hundred cameras,
and they're all asking me,

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"What does the decision mean,
what does it say?"

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Well, the decision was 185 pages long.

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I hadn't had time to read it, nobody had.

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But I knew what it meant.

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And here's what I said
on the steps of the court.

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"Here's what happened today.

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You have the lowest of the low,

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this guy, who was accused
of being bin Laden's driver,

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one of the most horrible men around.

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And he sued not just anyone,

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but the nation, indeed,
the world's most powerful man,

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the president of the United States.

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And he brings in, not in some
[unclear] traffic court,

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but in the highest court of the land,

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the Supreme Court of the United States,

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and he wins.

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That's something remarkable
about this country.

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In many other countries,

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this driver would have been shot,

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just for bringing his case.

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And more of the point for me,
his lawyer would have been shot.

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But that's what makes America different.

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What makes America special.

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Because of that decision,

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the Geneva Conventions
applied to the war on terror,

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which meant the end
of ghost prisons worldwide,

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the end of waterboarding worldwide,

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and an end to those Guantanamo
military tribunals.

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By methodically building the case,

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and getting into the justices' heads,

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we were able to quite literally
change the world.

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Sounds easy, right?

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You can practice a lot,

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avoid displays of emotion,

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and you too can win any argument.

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I'm sorry to say, it's not that simple,

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my strategies aren't foolproof,

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and while I've won
more Supreme Court cases

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than most anyone,

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I've also lost a lot, too.

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Indeed, after Donald Trump was elected,

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I was, constitutionally
speaking, terrified.

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Please understand,
this is not about left versus right,

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or anything like that.

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I'm not here to talk about that.

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But just a week in
to the new president's term,

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you might remember
those scenes at the airports.

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President Trump had campaigned
on a pledge, saying,

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"I, Donald J. Trump am calling
for a complete and total shutdown

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of all Muslim immigration
to the United States."

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And he also said,
"I think Islam hates us."

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And he made good on that promise,

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banning immigration from seven countries

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with overwhelmingly Muslim populations.

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My legal team and others
went into court right away and sued,

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and got that first travel ban struck down.

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Trump revised it.

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We went into court again
and got that struck down.

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He revised it again,

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and changed it, adding North Korea,

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because we all know,

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the United States had a tremendous
immigration problem with North Korea.

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But it did enable his lawyers
to go to the Supreme Court and say,

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"See, this isn't discriminating
against Muslims,

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it includes these other people, too."

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Now, I thought we had
the killer answer to that.

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I won't bore you with the details.

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But the thing is, we lost.

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Five votes to four.

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And I was devastated.

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I was worried my powers
of persuasion had waned.

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And then, two things happened.

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The first was,

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I noticed a part of the Supreme
Court's travel ban opinion

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that discussed the Japanese
American interment.

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That was a horrific moment in our history,

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in which over 100,000 Japanese Americans

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had been interned in camps.

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My favorite person
to challenge this scheme

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was Gordon Hirabayashi,

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a University of Washington student.

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He turned himself in to the FBI

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who said, "Look,
you're a first-time offender,

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you can go home."

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And Gordon said,

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"No, I'm a Quaker,

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I have to resist unjust laws,"

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and so they arrested him
and he was convicted.

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Gordon's case made it
to the Supreme Court.

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And again, I'm going to do that thing

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where I quash any sense
of anticipation you have,

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and tell you what happened.

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Gordon lost.

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But he lost because of a simple reason.

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Because the Solicitor General,

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that top courtroom lawyer
for the government,

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told the Supreme Court

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that the Japanese American internment
was justified by military necessity.

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And that was so,

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even though his own staff had discovered

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that there was no need
for the Japanese American interment.

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And that the FBI
and the intelligence community

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all believed that.

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And indeed, that was motivated
by racial prejudice.

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His staff begged the Solicitor General,

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"Tell the truth, don't suppress evidence."

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What did the Solicitor General do?

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Nothing.

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He went in and told
the military necessity story.

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And so the Court upheld
Gordon Hirabayashi's conviction.

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And the next year, upheld
Fred Korematsu's interment.

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Now why was I thinking about that?

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Because nearly 70 years later,

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I got to hold the same office,

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Head of the Solicitor General's Office.

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And I got to set the record straight,

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explaining that the government
had misrepresented the facts

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in the Japanese interment cases.

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And when I thought about the Supreme
Court's travel ban opinion,

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I realized something.

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The Supreme Court, in that opinion,
went out of its way

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to overrule the Korematsu case.

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Now, not only had the Justice
Department said

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the Japanese interment was wrong,

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the Supreme Court said so too.

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That's a crucial lesson
about argument's timing.

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All of you, when you're arguing,

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have that important lever to play.

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When do you make your argument?

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You don;t just need the right argument,

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you need the right argument
at the right moment.

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When is it that your audience,

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a spouse, a boss, a child,

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is going to be most receptive?

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Now look, sometimes
that's totally out of your control.

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Delay has costs that are too extensive.

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And so you've got to go in and fight

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and you very well may, like me,
get the timing wrong.

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That's what we thought in the travel ban.

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And you see,

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the Supreme Court wasn't ready

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so early in President Trump's term

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to overrule his signature initiative,

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just as it wasn't ready to overrule FDR's
Japanese American interment.

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And sometimes, you just
have to take the risk.

00:11:22.098 --> 00:11:24.982
But it is so painful when you lose.

00:11:25.006 --> 00:11:26.942
And patience is really hard.

00:11:26.966 --> 00:11:29.220
But that reminds me of the second lesson.

00:11:29.244 --> 00:11:31.361
Even if vindication comes later,

00:11:31.385 --> 00:11:34.615
I realized how important the fight now is,

00:11:34.639 --> 00:11:37.790
because it inspires, because it educates.

00:11:38.220 --> 00:11:43.315
I remember reading a column
by Anne Colter about the Muslim ban.

00:11:43.339 --> 00:11:44.601
Here's what she said.

00:11:44.625 --> 00:11:47.696
"Arguing against Trump
was first-generation American,

00:11:47.720 --> 00:11:49.061
Neal Katyal.

00:11:49.085 --> 00:11:52.360
There are plenty of
tenth-generation America-haters.

00:11:52.384 --> 00:11:56.145
You couldn't get one of them to argue
we should end our country

00:11:56.169 --> 00:11:58.006
through mass-immigration?"

00:11:58.030 --> 00:11:59.673
And that's when emotion,

00:11:59.697 --> 00:12:02.950
which is so anathema to a good argument,

00:12:02.974 --> 00:12:04.426
was important to me.

00:12:04.450 --> 00:12:06.974
It took emotion outside the courtroom

00:12:06.998 --> 00:12:08.958
to get me back in.

00:12:08.982 --> 00:12:11.799
When I read Coulter's words,

00:12:11.823 --> 00:12:13.180
I was angry.

00:12:13.839 --> 00:12:17.910
I rebel against the idea
that being a first-generation American

00:12:17.934 --> 00:12:19.930
would disqualify me.

00:12:19.954 --> 00:12:23.193
I rebel against the idea
that mass immigration

00:12:23.217 --> 00:12:24.788
would end this country,

00:12:24.812 --> 00:12:29.991
instead of recognizing that as literally
the rock on which this country was built.

00:12:30.015 --> 00:12:31.317
When I read Coulter,

00:12:31.341 --> 00:12:34.110
I thought about so many things in my past.

00:12:34.134 --> 00:12:35.499
I thought about my dad,

00:12:35.523 --> 00:12:38.133
who arrived here
with eight dollars from India,

00:12:38.157 --> 00:12:41.667
and didn't know whether to use
the colored bathroom or the white one.

00:12:42.003 --> 00:12:43.876
I thought about his first job offer,

00:12:43.900 --> 00:12:45.495
at a slaughter house.

00:12:45.519 --> 00:12:47.272
Not a great job for a Hindu.

00:12:47.296 --> 00:12:51.634
I though about how, when we moved
to a new neighborhood in Chicago

00:12:51.658 --> 00:12:53.625
with one other Indian family,

00:12:53.649 --> 00:12:56.249
that family had a cross burn on its lawn.

00:12:56.273 --> 00:12:58.066
Because the racists aren't very good

00:12:58.090 --> 00:13:00.939
at distinguishing between
African Americans and Hindus.

00:13:00.963 --> 00:13:03.014
And I though about all the hate mail I got

00:13:03.038 --> 00:13:04.316
during Guantanamo,

00:13:04.340 --> 00:13:05.990
for being a Muslim lover.

00:13:06.014 --> 00:13:07.696
Again, the racists aren't very good

00:13:07.720 --> 00:13:10.577
with distinctions between
Hindus and Muslims, either.

00:13:10.601 --> 00:13:15.004
Anne Coulter thought that being the child
of an immigrant was a weakness.

00:13:15.028 --> 00:13:17.012
She was profoundly,

00:13:17.036 --> 00:13:18.877
profoundly wrong.

00:13:18.901 --> 00:13:20.514
It is my strength,

00:13:20.538 --> 00:13:24.220
because I knew what America
was supposed to stand for.

00:13:24.752 --> 00:13:27.291
I knew that in America,

00:13:27.315 --> 00:13:31.853
me, a child of a man who came here
with eight dollars in his pocket,

00:13:31.877 --> 00:13:34.750
could stand in the Supreme Court
of the United States

00:13:34.774 --> 00:13:37.107
on behalf of a detested foreigner,

00:13:37.131 --> 00:13:39.358
like Osama bin Laden's driver,

00:13:39.382 --> 00:13:40.573
and win.

00:13:40.597 --> 00:13:41.953
And it made me realize,

00:13:41.977 --> 00:13:44.596
even though I may have lost the case,

00:13:44.620 --> 00:13:46.720
I was right about the Muslim ban, too.

00:13:46.744 --> 00:13:48.577
No matter what the court decided,

00:13:48.601 --> 00:13:52.653
they couldn't change the fact
that immigrant do strengthen this country,

00:13:52.677 --> 00:13:56.955
indeed, in many ways,
immigrants love this country the most.

00:13:56.979 --> 00:13:59.315
When I read Ann Coulter's words,

00:13:59.339 --> 00:14:02.371
I thought about the glorious
words of our Constitution.

00:14:02.395 --> 00:14:03.704
The First Amendment.

00:14:03.728 --> 00:14:07.529
Congress shall make no law
establishing religion.

00:14:07.553 --> 00:14:09.831
I though about our national creed,

00:14:09.855 --> 00:14:11.570
"E plurbis unum,"

00:14:11.594 --> 00:14:13.667
"out of many come one."

00:14:14.006 --> 00:14:15.720
Most of all, I realized,

00:14:15.744 --> 00:14:19.125
the only way you can truly
lose an argument

00:14:19.149 --> 00:14:20.545
is by giving up.

00:14:20.569 --> 00:14:23.641
So I joined the law suit
by the US Congress

00:14:23.665 --> 00:14:28.923
challenging President Trump's addition
of a citizenship question to the census.

00:14:28.947 --> 00:14:31.352
A decision with huge implications.

00:14:31.376 --> 00:14:32.939
It was a really hard case.

00:14:32.963 --> 00:14:34.939
Most though we would lose.

00:14:34.963 --> 00:14:36.852
But the thing is, we won.

00:14:36.876 --> 00:14:38.447
Five votes to four.

00:14:38.471 --> 00:14:40.288
The Supreme Court basically said

00:14:40.312 --> 00:14:44.300
President Trump and his cabinet
secretary had lied.

00:14:44.744 --> 00:14:47.569
And now I've gone back up
and rejoined the fight,

00:14:47.593 --> 00:14:50.680
and I hope each of you,
in your own ways, does so too.

00:14:50.998 --> 00:14:52.164
I'm getting back up,

00:14:52.188 --> 00:14:55.667
because I'm a believer that good arguments
do win out in the end.

00:14:56.598 --> 00:14:58.637
The arc of justice is long,

00:14:58.661 --> 00:15:00.463
and bends often slowly,

00:15:00.487 --> 00:15:03.209
but it bends so long as we bend it.

00:15:03.598 --> 00:15:07.636
And I've realized the question is not
how to win every argument.

00:15:08.033 --> 00:15:09.652
It's how to get back up

00:15:09.676 --> 00:15:11.152
when you do lose.

00:15:11.176 --> 00:15:12.533
Because in the long run,

00:15:12.557 --> 00:15:15.014
good arguments will win out.

00:15:15.038 --> 00:15:16.760
If you make a good argument,

00:15:16.784 --> 00:15:19.101
it has the power to outlive you,

00:15:19.125 --> 00:15:21.156
to stretch beyond your core,

00:15:21.180 --> 00:15:23.500
to reach those future minds.

00:15:23.828 --> 00:15:26.256
And that's why all this is so important.

00:15:26.280 --> 00:15:28.234
I'm not telling you how to win arguments

00:15:28.258 --> 00:15:30.256
for the sake of winning arguments.

00:15:30.280 --> 00:15:31.906
This isn't a game.

00:15:31.930 --> 00:15:33.303
I'm telling you this,

00:15:33.327 --> 00:15:36.128
because even if you don't win right now,

00:15:36.152 --> 00:15:37.883
if you make a good argument,

00:15:37.907 --> 00:15:39.854
history will prove you right.

00:15:39.878 --> 00:15:42.934
I think back to that acting
coach all the time.

00:15:42.958 --> 00:15:44.434
And I've come to realize

00:15:44.458 --> 00:15:46.417
that the hand I was holding

00:15:46.441 --> 00:15:48.448
was the hand of justice.

00:15:48.472 --> 00:15:51.377
That outstretched hand will come for you.

00:15:51.401 --> 00:15:54.563
It's your decision to push it away

00:15:54.587 --> 00:15:55.762
or to keep holding it.

00:15:56.413 --> 00:15:58.413
Thank you so much for listening.