0:00:01.095,0:00:02.286
Fourteen years ago,

0:00:02.310,0:00:05.476
I stood in the Supreme Court[br]to argue my first case.

0:00:05.500,0:00:06.889
And it wasn't just any case,

0:00:06.913,0:00:08.744
it was a case that experts called

0:00:08.768,0:00:12.400
one of the most important cases[br]the Supreme Court had ever heard.

0:00:12.752,0:00:16.021
It considered whether Guantanamo[br]was constitutional,

0:00:16.045,0:00:19.542
and whether the Geneva Conventions[br]applied to the war on terror.

0:00:19.566,0:00:22.709
It was just a handful of years[br]after the horrific attacks

0:00:22.733,0:00:23.933
of September 11.

0:00:24.241,0:00:27.331
The Supreme Court[br]had seven Republican appointees

0:00:27.355,0:00:29.204
and two Democratic ones,

0:00:29.228,0:00:32.770
and my client happened to be[br]Osama bin Laden's driver.

0:00:33.147,0:00:36.131
My opponent was the Solicitor General[br]of the United States,

0:00:36.155,0:00:38.028
America's top courtroom lawyer.

0:00:38.052,0:00:39.974
He had argued 35 cases.

0:00:39.998,0:00:42.268
I wasn't even 35 years old.

0:00:42.292,0:00:43.847
And to make matters worse,

0:00:43.871,0:00:47.045
the Senate, for the first time[br]since the Civil War,

0:00:47.069,0:00:51.869
passed a bill to try and remove the case[br]from the docket of the Supreme Court.

0:00:51.893,0:00:53.520
Now the speaking coaches say

0:00:53.544,0:00:56.700
I'm supposed to build tension[br]and not tell you what happens.

0:00:57.165,0:00:58.847
But the thing is, we won.

0:00:58.871,0:01:00.045
How?

0:01:00.069,0:01:02.772
Today, I'm going to talk[br]about how to win an argument,

0:01:02.796,0:01:04.796
at the Supreme Court or anywhere.

0:01:05.201,0:01:09.463
The conventional wisdom[br]is that you speak with confidence.

0:01:09.487,0:01:11.133
That's how you persuade.

0:01:11.642,0:01:13.095
I think that's wrong.

0:01:13.119,0:01:16.367
I think confidence[br]is the enemy of persuasion.

0:01:16.738,0:01:18.815
Persuasion is about empathy,

0:01:18.839,0:01:20.839
about getting into people's heads.

0:01:21.228,0:01:23.172
That's what makes TED what it is.

0:01:23.196,0:01:25.387
It's why you're listening to this talk.

0:01:25.411,0:01:27.347
You could have read it on the cold page,

0:01:27.371,0:01:28.529
but you didn't.

0:01:28.553,0:01:30.712
Same thing with Supreme Court arguments --

0:01:30.736,0:01:33.768
we write written briefs with cold pages,

0:01:33.792,0:01:35.537
but we also have an oral argument.

0:01:35.561,0:01:39.543
We don't just have a system[br]in which the justices write questions

0:01:39.567,0:01:40.871
and you write answers.

0:01:40.895,0:01:42.085
Why?

0:01:42.109,0:01:44.529
Because argument is about interaction.

0:01:44.553,0:01:48.066
I want to take you behind the scenes[br]to tell you what I did,

0:01:48.090,0:01:50.479
and how these lessons are generalizable.

0:01:50.503,0:01:53.129
Not just for winning an argument in court,

0:01:53.153,0:01:55.153
but for something far more profound.

0:01:55.704,0:01:58.387
Now obviously,[br]it's going to involve practice,

0:01:58.411,0:02:00.291
but not just any practice will do.

0:02:00.315,0:02:02.476
My first practice session for Guantanamo,

0:02:02.500,0:02:03.668
I flew up to Harvard

0:02:03.692,0:02:08.243
and had all these legendary professors[br]throwing questions at me.

0:02:08.267,0:02:11.783
And even though I had read everything,[br]rehearsed a million times,

0:02:11.807,0:02:14.014
I wasn't persuading anyone.

0:02:14.038,0:02:16.164
My arguments weren't resonating.

0:02:16.188,0:02:17.387
I was desperate.

0:02:17.411,0:02:18.903
I had done everything possible,

0:02:18.927,0:02:21.347
read every book,[br]rehearsed a million times,

0:02:21.371,0:02:23.129
and it wasn't going anywhere.

0:02:23.153,0:02:25.272
So ultimately, I stumbled on this guy --

0:02:25.296,0:02:27.582
he was an acting coach,[br]he wasn't even a lawyer.

0:02:27.606,0:02:29.836
He'd never set foot in the Supreme Court.

0:02:29.860,0:02:33.388
And he came into my office one day[br]wearing a billowy white shirt

0:02:33.412,0:02:35.420
and a bolo tie,

0:02:35.444,0:02:38.944
and he looked at me[br]with my folded arms and said,

0:02:38.968,0:02:40.926
"Look, Neal, I can tell

0:02:40.950,0:02:42.983
that you don't think[br]this is going to work,

0:02:43.007,0:02:44.316
but just humor me.

0:02:44.340,0:02:45.617
Tell me your argument."

0:02:45.641,0:02:47.283
So I grabbed my legal pad,

0:02:47.307,0:02:49.340
and I started reading my argument.

0:02:49.364,0:02:50.799
He said, "What are you doing?"

0:02:50.823,0:02:52.672
I said, "I'm telling you my argument."

0:02:52.696,0:02:54.664
He said, "Your argument is a legal pad?"

0:02:54.688,0:02:57.526
I said, "No, but my argument[br]is on a legal pad."

0:02:57.550,0:02:59.772
He said, "Neal, look at me.

0:02:59.796,0:03:02.003
Tell me your argument."

0:03:02.027,0:03:03.391
And so I did.

0:03:03.415,0:03:05.307
And instantly, I realized,

0:03:05.331,0:03:07.037
my points were resonating.

0:03:07.061,0:03:09.867
I was connecting to another human being.

0:03:10.328,0:03:13.360
And he could see the smile[br]starting to form

0:03:13.384,0:03:15.153
as I was saying my words,

0:03:15.177,0:03:16.947
and he said, "OK, Neal.

0:03:16.971,0:03:19.737
Now do your argument holding my hand."

0:03:20.246,0:03:21.975
And I said, "What?"

0:03:21.999,0:03:24.340
And he said, "Yeah, hold my hand."

0:03:25.087,0:03:26.799
I was desperate, so I did it.

0:03:26.823,0:03:30.442
And I realized, "Wow, that's connection.

0:03:30.466,0:03:32.728
That's the power of how to persuade."

0:03:33.125,0:03:34.307
And it helped.

0:03:34.331,0:03:37.780
But truthfully, I still got nervous[br]as the argument date approached.

0:03:37.804,0:03:39.923
And I knew that even though argument

0:03:39.947,0:03:42.201
was about getting[br]into someone else's shoes

0:03:42.225,0:03:43.458
and empathizing,

0:03:43.482,0:03:46.243
I needed to have a solid core first.

0:03:46.267,0:03:48.760
So I did something[br]outside of my comfort zone.

0:03:48.784,0:03:51.058
I wore jewelry -- not just anything,

0:03:51.082,0:03:54.336
but a bracelet that my father[br]had worn his whole life,

0:03:54.360,0:03:57.598
until he passed away,[br]just a few months before the argument.

0:03:57.622,0:03:58.783
I put on a tie

0:03:58.807,0:04:01.315
that my mom had given me[br]just for the occasion.

0:04:01.641,0:04:05.768
And I took out my legal pad[br]and wrote my children's names on it,

0:04:05.792,0:04:07.926
because that's why I was doing this.

0:04:07.950,0:04:11.577
For them, to leave the country better[br]than I had found it.

0:04:11.601,0:04:13.887
I got to court, and I was calm.

0:04:13.911,0:04:17.221
The bracelet, the tie,[br]the children's names

0:04:17.245,0:04:18.791
had all centered me.

0:04:18.815,0:04:21.902
Like a rock climber[br]extending beyond the precipice,

0:04:21.926,0:04:25.101
if you have a solid hold,[br]you can reach out.

0:04:25.125,0:04:28.609
And because argument is about persuasion,

0:04:28.633,0:04:30.633
I knew I had to avoid emotion.

0:04:30.982,0:04:32.823
Displays of emotion fail.

0:04:32.847,0:04:36.260
It's kind of like writing an email[br]in all bold and all caps.

0:04:36.284,0:04:37.776
It persuades no one.

0:04:37.800,0:04:39.990
It's then about you, the speaker,

0:04:40.014,0:04:42.410
not about the listener or the receiver.

0:04:42.728,0:04:46.291
Now look, in some settings,[br]the solution is to be emotional.

0:04:46.315,0:04:47.903
You're arguing with your parents,

0:04:47.927,0:04:49.871
and you use emotion and it works.

0:04:49.895,0:04:51.045
Why?

0:04:51.069,0:04:52.514
Because your parents love you.

0:04:52.538,0:04:54.704
But Supreme Court justices don't love you.

0:04:54.728,0:04:56.546
They don't like to think of themselves

0:04:56.570,0:04:58.571
as the type of people[br]persuaded by emotion.

0:04:58.595,0:05:00.988
And I reverse engineered that insight too,

0:05:01.012,0:05:05.020
setting a trap for my opponent[br]to provoke his emotional reaction,

0:05:05.044,0:05:08.567
so I could be seen as the calm[br]and steady voice of the law.

0:05:09.106,0:05:10.415
And it worked.

0:05:10.439,0:05:14.569
And I remember sitting in the courtroom[br]to learn that we had won.

0:05:14.593,0:05:17.418
That the Guantanamo tribunals[br]were coming down.

0:05:17.442,0:05:21.236
And I went out onto the courthouse steps[br]and there was a media firestorm.

0:05:21.585,0:05:23.855
Five hundred cameras,[br]and they're all asking me,

0:05:23.879,0:05:26.164
"What does the decision mean,[br]what does it say?"

0:05:26.188,0:05:28.474
Well, the decision was 185 pages long.

0:05:28.498,0:05:30.696
I hadn't had time to read it, nobody had.

0:05:30.720,0:05:32.045
But I knew what it meant.

0:05:32.069,0:05:34.533
And here's what I said[br]on the steps of the Court.

0:05:34.955,0:05:36.518
"Here's what happened today.

0:05:36.542,0:05:38.447
You have the lowest of the low --

0:05:38.471,0:05:41.800
this guy, who was accused[br]of being bin Laden's driver,

0:05:41.824,0:05:43.895
one of the most horrible men around.

0:05:43.919,0:05:45.958
And he sued not just anyone,

0:05:45.982,0:05:48.863
but the nation, indeed,[br]the world's most powerful man,

0:05:48.887,0:05:50.895
the president of the United States.

0:05:50.919,0:05:53.712
And he brings it not in some[br]rinky-dink traffic court,

0:05:53.736,0:05:55.783
but in the highest court of the land,

0:05:55.807,0:05:58.236
the Supreme Court of the United States ...

0:05:58.260,0:05:59.887
And he wins.

0:05:59.911,0:06:02.982
That's something remarkable[br]about this country.

0:06:03.006,0:06:04.666
In many other countries,

0:06:04.690,0:06:06.561
this driver would have been shot,

0:06:06.585,0:06:08.442
just for bringing his case.

0:06:08.466,0:06:11.395
And more of the point for me,[br]his lawyer would have been shot.

0:06:11.419,0:06:13.518
But that's what makes America different.

0:06:13.542,0:06:15.542
What makes America special."

0:06:15.566,0:06:17.304
Because of that decision,

0:06:17.328,0:06:20.014
the Geneva conventions[br]apply to the war on terror,

0:06:20.038,0:06:22.728
which meant the end[br]of ghost prisons worldwide,

0:06:22.752,0:06:24.768
the end of waterboarding worldwide

0:06:24.792,0:06:28.252
and an end to those Guantanamo[br]military tribunals.

0:06:28.276,0:06:30.498
By methodically building the case,

0:06:30.522,0:06:32.791
and getting into the justices' heads,

0:06:32.815,0:06:36.300
we were able to quite literally[br]change the world.

0:06:36.606,0:06:38.256
Sounds easy, right?

0:06:38.280,0:06:39.901
You can practice a lot,

0:06:39.925,0:06:41.376
avoid displays of emotion,

0:06:41.400,0:06:43.400
and you, too, can win any argument.

0:06:43.776,0:06:46.355
I'm sorry to say, it's not that simple,

0:06:46.379,0:06:48.315
my strategies aren't foolproof,

0:06:48.339,0:06:50.812
and while I've won[br]more Supreme Court cases

0:06:50.836,0:06:52.193
than most anyone,

0:06:52.217,0:06:54.233
I've also lost a lot too.

0:06:54.257,0:06:56.709
Indeed, after Donald Trump was elected,

0:06:56.733,0:07:00.468
I was, constitutionally[br]speaking, terrified.

0:07:00.492,0:07:03.087
Please understand,[br]this is not about Left versus Right,

0:07:03.111,0:07:04.405
or anything like that.

0:07:04.429,0:07:06.206
I'm not here to talk about that.

0:07:06.230,0:07:08.837
But just a week in[br]to the new president's term,

0:07:08.861,0:07:11.528
you might remember[br]those scenes at the airports.

0:07:11.552,0:07:15.679
President Trump had campaigned[br]on a pledge, saying, quote,

0:07:15.703,0:07:19.580
"I, Donald J. Trump am calling[br]for a complete and total shutdown

0:07:19.604,0:07:22.596
of all Muslim immigration[br]to the United States."

0:07:22.620,0:07:25.793
And he also said, quote,[br]"I think Islam hates us."

0:07:25.817,0:07:27.642
And he made good on that promise,

0:07:27.666,0:07:33.363
banning immigration from seven countries[br]with overwhelmingly Muslim populations.

0:07:33.387,0:07:36.990
My legal team and others[br]went into court right away and sued,

0:07:37.014,0:07:39.839
and got that first travel ban struck down.

0:07:39.863,0:07:41.252
Trump revised it.

0:07:41.276,0:07:43.871
We went into court again[br]and got that struck down.

0:07:43.895,0:07:45.925
He revised it again,

0:07:45.949,0:07:48.276
and changed it, adding North Korea,

0:07:48.300,0:07:49.482
because we all know,

0:07:49.506,0:07:53.328
the United States had a tremendous[br]immigration problem with North Korea.

0:07:53.352,0:07:56.756
But it did enable his lawyers[br]to go to the Supreme Court and say,

0:07:56.780,0:07:59.034
"See, this isn't discriminating[br]against Muslims,

0:07:59.058,0:08:01.141
it includes these other people too."

0:08:01.165,0:08:04.067
Now I thought we had[br]the killer answer to that.

0:08:04.942,0:08:06.831
I won't bore you with the details,

0:08:06.855,0:08:08.855
but the thing is, we lost.

0:08:09.163,0:08:10.933
Five votes to four.

0:08:10.957,0:08:12.322
And I was devastated.

0:08:12.346,0:08:15.733
I was worried my powers[br]of persuasion had waned.

0:08:16.046,0:08:17.744
And then, two things happened.

0:08:17.768,0:08:18.990
The first was,

0:08:19.014,0:08:22.574
I noticed a part of the Supreme[br]Court's travel ban opinion

0:08:22.598,0:08:25.312
that discussed the Japanese[br]American interment.

0:08:25.669,0:08:27.670
That was a horrific moment in our history,

0:08:27.694,0:08:32.993
in which over 100,000 Japanese Americans[br]had been interned in camps.

0:08:33.017,0:08:35.414
My favorite person[br]to challenge this scheme

0:08:35.438,0:08:36.748
was Gordon Hirabayashi,

0:08:36.772,0:08:38.942
a University of Washington student.

0:08:38.966,0:08:41.125
He turned himself in to the FBI,

0:08:41.149,0:08:43.304
who said, "Look,[br]you're a first-time offender,

0:08:43.328,0:08:44.506
you can go home."

0:08:44.530,0:08:45.705
And Gordon said,

0:08:45.729,0:08:49.831
"No, I'm a Quaker,[br]I have to resist unjust laws,"

0:08:49.855,0:08:52.426
and so they arrested him[br]and he was convicted.

0:08:52.450,0:08:55.084
Gordon's case made it[br]to the Supreme Court.

0:08:55.108,0:08:56.887
And again, I'm going to do that thing

0:08:56.911,0:08:59.363
where I quash any sense[br]of anticipation you have,

0:08:59.387,0:09:01.164
and tell you what happened.

0:09:01.188,0:09:02.490
Gordon lost.

0:09:02.514,0:09:04.886
But he lost because of a simple reason.

0:09:05.212,0:09:06.784
Because the Solicitor General,

0:09:06.808,0:09:09.434
that top courtroom lawyer[br]for the government,

0:09:09.458,0:09:11.213
told the Supreme Court

0:09:11.237,0:09:15.467
that the Japanese American internment[br]was justified by military necessity.

0:09:16.115,0:09:17.314
And that was so,

0:09:17.338,0:09:19.798
even though his own staff had discovered

0:09:19.822,0:09:23.628
that there was no need[br]for the Japanese American interment

0:09:23.652,0:09:27.088
and that the FBI[br]and the intelligence community

0:09:27.112,0:09:28.533
all believed that.

0:09:28.557,0:09:31.810
And indeed, that it was motivated[br]by racial prejudice.

0:09:32.157,0:09:34.704
His staff begged the Solicitor General,

0:09:34.728,0:09:37.688
"Tell the truth, don't suppress evidence."

0:09:37.712,0:09:39.490
What did the Solicitor General do?

0:09:39.514,0:09:40.696
Nothing.

0:09:40.720,0:09:44.282
He went in and told[br]the "military necessity" story.

0:09:44.719,0:09:48.631
And so the Court upheld[br]Gordon Hirabayashi's conviction.

0:09:48.655,0:09:52.933
And the next year, upheld[br]Fred Korematsu's interment.

0:09:53.255,0:09:55.231
Now why was I thinking about that?

0:09:55.255,0:09:57.374
Because nearly 70 years later,

0:09:57.398,0:09:59.434
I got to hold the same office,

0:09:59.458,0:10:01.704
Head of the Solicitor General's Office.

0:10:01.728,0:10:03.895
And I got to set the record straight,

0:10:03.919,0:10:08.117
explaining that the government[br]had misrepresented the facts

0:10:08.141,0:10:10.623
in the Japanese interment cases.

0:10:10.647,0:10:14.204
And when I thought about the Supreme[br]Court's travel ban opinion,

0:10:14.228,0:10:15.744
I realized something.

0:10:15.768,0:10:17.475
The Supreme Court, in that opinion,

0:10:17.499,0:10:22.185
went out of its way[br]to overrule the Korematsu case.

0:10:22.209,0:10:25.820
Now, not only had the Justice[br]Department said

0:10:25.844,0:10:28.193
the Japanese interment was wrong,

0:10:28.217,0:10:30.920
the Supreme Court said so too.

0:10:31.523,0:10:35.356
That's a crucial lesson[br]about arguments -- timing.

0:10:35.380,0:10:38.783
All of you, when you're arguing,[br]have that important lever to play.

0:10:38.807,0:10:40.903
When do you make your argument?

0:10:40.927,0:10:42.815
You don't just need the right argument,

0:10:42.839,0:10:45.776
you need the right argument[br]at the right moment.

0:10:45.800,0:10:50.371
When is it that your audience --[br]a spouse, a boss, a child --

0:10:50.395,0:10:52.220
is going to be most receptive?

0:10:52.244,0:10:54.839
Now look, sometimes,[br]it's totally out of your control.

0:10:54.863,0:10:57.400
Delay has costs that are too extensive.

0:10:57.784,0:10:59.829
And so you've got to go in and fight

0:10:59.853,0:11:02.909
and you very well may, like me,[br]get the timing wrong.

0:11:02.933,0:11:04.934
That's what we thought in the travel ban.

0:11:04.958,0:11:06.109
And you see,

0:11:06.133,0:11:11.149
the Supreme Court wasn't ready,[br]so early in President Trump's term,

0:11:11.173,0:11:14.212
to overrule his signature initiative,

0:11:14.236,0:11:19.526
just as it wasn't ready to overrule FDR's[br]Japanese American interment.

0:11:19.550,0:11:22.074
And sometimes,[br]you just have to take the risk.

0:11:22.098,0:11:24.982
But it is so painful when you lose.

0:11:25.006,0:11:26.942
And patience is really hard.

0:11:26.966,0:11:29.220
But that reminds me of the second lesson.

0:11:29.244,0:11:31.361
Even if vindication comes later,

0:11:31.385,0:11:34.615
I realized how important the fight now is,

0:11:34.639,0:11:37.790
because it inspires, because it educates.

0:11:38.220,0:11:43.315
I remember reading a column[br]by Ann Coulter about the Muslim ban.

0:11:43.339,0:11:44.601
Here's what she said.

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"Arguing against Trump[br]was first-generation American,

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Neal Katyal.

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There are plenty of[br]10th-generation America-haters.

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

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through mass-immigration?"

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And that's when emotion,

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which is so anathema to a good argument,

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was important to me.

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It took emotion outside the courtroom[br]to get me back in.

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When I read Coulter's words, I was angry.

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I rebel against the idea

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that being a first-generation American[br]would disqualify me.

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I rebel against the idea[br]that mass immigration

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would end this country,

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instead of recognizing that as literally[br]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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who arrived here[br]with eight dollars from India,

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

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I thought about his first job offer,[br]at a slaughter house.

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Not a great job for a Hindu.

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I thought about how, when we moved[br]to a new neighborhood in Chicago

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with one other Indian family,

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that family had a cross [br]burned on its lawn.

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Because the racists aren't very good

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at distinguishing between[br]African Americans and Hindus.

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And I thought about [br]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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Again, the racists aren't very good

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with distinctions between[br]Hindus and Muslims, either.

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Ann Coulter thought that being the child[br]of an immigrant was a weakness.

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She was profoundly, profoundly wrong.

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It is my strength,

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because I knew what America[br]was supposed to stand for.

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I knew that in America,

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me, a child of a man who came here[br]with eight dollars in his pocket,

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could stand in the Supreme Court[br]of the United States

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on behalf of a detested foreigner,

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like Osama bin Laden's driver,

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and win.

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And it made me realize,

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even though I may have lost the case,

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I was right about the Muslim ban too.

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No matter what the court decided,

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they couldn't change the fact

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that immigrants[br]do strengthen this country.

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Indeed, in many ways,[br]immigrants love this country the most.

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When I read Ann Coulter's words,

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I thought about the glorious[br]words of our Constitution.

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The First Amendment.

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Congress shall make no law[br]establishing religion.

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I thought about our national creed,

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"E plurbis unum,"

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"out of many come one."

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Most of all, I realized,

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the only way you can truly[br]lose an argument

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is by giving up.

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So I joined the lawsuit by the US Congress

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challenging President Trump's addition[br]of a citizenship question to the census.

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A decision with huge implications.

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It was a really hard case.

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Most thought we would lose.

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But the thing is, we won.

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Five votes to four.

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The Supreme Court basically said

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President Trump and his cabinet's[br]secretary had lied.

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And now I've gotten back up[br]and rejoined the fight,

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and I hope each of you,[br]in your own ways, does so too.

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I'm getting back up

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because I'm a believer that good arguments[br]do win out in the end.

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The arc of justice is long,

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and bends, often, slowly,

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but it bends so long as we bend it.

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And I've realized the question[br]is not how to win every argument.

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It's how to get back up when you do lose.

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Because in the long run,

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good arguments will win out.

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If you make a good argument,

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it has the power to outlive you,

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to stretch beyond your core,

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to reach those future minds.

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And that's why all of this[br]is so important.

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I'm not telling you how to win arguments[br]for the sake of winning arguments.

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This isn't a game.

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I'm telling you this[br]because even if you don't win right now,

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if you make a good argument,[br]history will prove you right.

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I think back to that acting[br]coach all the time.

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And I've come to realize

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that the hand I was holding[br]was the hand of justice.

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That outstretched hand will come for you.

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It's your decision to push it away

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or to keep holding it.

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Thank you so much for listening.