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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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00:11:14,236 --> 00:11:19,526
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.

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But it is so painful when you lose.

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And patience is really hard.

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But that reminds me of the second lesson.

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Even if vindication comes later,

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I realized how important the fight now is,

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because it inspires, because it educates.

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I remember reading a column
by Anne Coulter about the Muslim ban.

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Here's what she said.

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"Arguing against Trump
was first-generation American,

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00:11:47,720 --> 00:11:49,061
Neal Katyal.

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00:11:49,085 --> 00:11:52,360
There are plenty of
tenth-generation America-haters.

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You couldn't get one of them to argue
we should end our country

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00:11:56,169 --> 00:11:58,006
through mass-immigration?"

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00:11:58,030 --> 00:11:59,673
And that's when emotion,

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00:11:59,697 --> 00:12:02,950
which is so anathema to a good argument,

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00:12:02,974 --> 00:12:04,426
was important to me.

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It took emotion outside the courtroom

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to get me back in.

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00:12:08,982 --> 00:12:11,799
When I read Coulter's words,

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I was angry.

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I rebel against the idea
that being a first-generation American

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would disqualify me.

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I rebel against the idea
that mass immigration

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would end this country,

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instead of recognizing that as literally
the rock on which this country was built.

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When I read Coulter,

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I thought about so many things in my past.

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I thought about my dad,

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00:12:35,523 --> 00:12:38,133
who arrived here
with eight dollars from India,

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and didn't know whether to use
the colored bathroom or the white one.

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I thought about his first job offer,

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at a slaughter house.

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Not a great job for a Hindu.

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I though about how, when we moved
to a new neighborhood in Chicago

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with one other Indian family,

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00:12:53,649 --> 00:12:56,249
that family had a cross burn on its lawn.

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Because the racists aren't very good

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00:12:58,090 --> 00:13:00,939
at distinguishing between
African Americans and Hindus.

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And I though about all the hate mail I got

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during Guantanamo,

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for being a Muslim lover.

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00:13:06,014 --> 00:13:07,696
Again, the racists aren't very good

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with distinctions between
Hindus and Muslims, either.

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00:13:10,601 --> 00:13:15,004
Anne Coulter thought that being the child
of an immigrant was a weakness.

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She was profoundly,

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00:13:17,036 --> 00:13:18,877
profoundly wrong.

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It is my strength,

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00:13:20,538 --> 00:13:24,220
because I knew what America
was supposed to stand for.

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I knew that in America,

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00:13:27,315 --> 00:13:31,853
me, a child of a man who came here
with eight dollars in his pocket,

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00:13:31,877 --> 00:13:34,750
could stand in the Supreme Court
of the United States

339
00:13:34,774 --> 00:13:37,107
on behalf of a detested foreigner,

340
00:13:37,131 --> 00:13:39,358
like Osama bin Laden's driver,

341
00:13:39,382 --> 00:13:40,573
and win.

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00:13:40,597 --> 00:13:41,953
And it made me realize,

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00:13:41,977 --> 00:13:44,596
even though I may have lost the case,

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I was right about the Muslim ban, too.

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00:13:46,744 --> 00:13:48,577
No matter what the court decided,

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00:13:48,601 --> 00:13:52,653
they couldn't change the fact
that immigrant do strengthen this country,

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00:13:52,677 --> 00:13:56,955
indeed, in many ways,
immigrants love this country the most.

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00:13:56,979 --> 00:13:59,315
When I read Ann Coulter's words,

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I thought about the glorious
words of our Constitution.

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00:14:02,395 --> 00:14:03,704
The First Amendment.

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00:14:03,728 --> 00:14:07,529
Congress shall make no law
establishing religion.

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00:14:07,553 --> 00:14:09,831
I though about our national creed,

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00:14:09,855 --> 00:14:11,570
"E plurbis unum,"

354
00:14:11,594 --> 00:14:13,667
"out of many come one."

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00:14:14,006 --> 00:14:15,720
Most of all, I realized,

356
00:14:15,744 --> 00:14:19,125
the only way you can truly
lose an argument

357
00:14:19,149 --> 00:14:20,545
is by giving up.

358
00:14:20,569 --> 00:14:23,641
So I joined the law suit
by the US Congress

359
00:14:23,665 --> 00:14:28,923
challenging President Trump's addition
of a citizenship question to the census.

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00:14:28,947 --> 00:14:31,352
A decision with huge implications.

361
00:14:31,376 --> 00:14:32,939
It was a really hard case.

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00:14:32,963 --> 00:14:34,939
Most though we would lose.

363
00:14:34,963 --> 00:14:36,852
But the thing is, we won.

364
00:14:36,876 --> 00:14:38,447
Five votes to four.

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00:14:38,471 --> 00:14:40,288
The Supreme Court basically said

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00:14:40,312 --> 00:14:44,300
President Trump and his cabinet
secretary had lied.

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00:14:44,744 --> 00:14:47,569
And now I've gone back up
and rejoined the fight,

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00:14:47,593 --> 00:14:50,680
and I hope each of you,
in your own ways, does so too.

369
00:14:50,998 --> 00:14:52,164
I'm getting back up,

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00:14:52,188 --> 00:14:55,667
because I'm a believer that good arguments
do win out in the end.

371
00:14:56,598 --> 00:14:58,637
The arc of justice is long,

372
00:14:58,661 --> 00:15:00,463
and bends often slowly,

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00:15:00,487 --> 00:15:03,209
but it bends so long as we bend it.

374
00:15:03,598 --> 00:15:07,636
And I've realized the question is not
how to win every argument.

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00:15:08,033 --> 00:15:09,652
It's how to get back up

376
00:15:09,676 --> 00:15:11,152
when you do lose.

377
00:15:11,176 --> 00:15:12,533
Because in the long run,

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00:15:12,557 --> 00:15:15,014
good arguments will win out.

379
00:15:15,038 --> 00:15:16,760
If you make a good argument,

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00:15:16,784 --> 00:15:19,101
it has the power to outlive you,

381
00:15:19,125 --> 00:15:21,156
to stretch beyond your core,

382
00:15:21,180 --> 00:15:23,500
to reach those future minds.

383
00:15:23,828 --> 00:15:26,256
And that's why all this is so important.

384
00:15:26,280 --> 00:15:28,234
I'm not telling you how to win arguments

385
00:15:28,258 --> 00:15:30,256
for the sake of winning arguments.

386
00:15:30,280 --> 00:15:31,906
This isn't a game.

387
00:15:31,930 --> 00:15:33,303
I'm telling you this,

388
00:15:33,327 --> 00:15:36,128
because even if you don't win right now,

389
00:15:36,152 --> 00:15:37,883
if you make a good argument,

390
00:15:37,907 --> 00:15:39,854
history will prove you right.

391
00:15:39,878 --> 00:15:42,934
I think back to that acting
coach all the time.

392
00:15:42,958 --> 00:15:44,434
And I've come to realize

393
00:15:44,458 --> 00:15:46,417
that the hand I was holding

394
00:15:46,441 --> 00:15:48,448
was the hand of justice.

395
00:15:48,472 --> 00:15:51,377
That outstretched hand will come for you.

396
00:15:51,401 --> 00:15:54,563
It's your decision to push it away

397
00:15:54,587 --> 00:15:55,762
or to keep holding it.

398
00:15:56,413 --> 00:15:58,413
Thank you so much for listening.