Complicated Supreme Court docket counsel with their shoppers

SCOTUStalk’s end-of-term review with Lyle Denniston

Posted Wed, Dec 2nd 2020 1:56 pm by Tom Goldstein

Tuesday’s argument in Nestlé USA against Doe I and Cargill, Inc. against Doe I dealt with an important question of whether American companies could be held liable under the Alien Tort Statute. Less important to the wider world, but still important to those practicing law before the Supreme Court, a storm has been seen over the role of the defendants’ attorney, Neal Katyal. The Liberals have followed up on Katyal, widely regarded as a progressive hero for very visibly taking over the Trump administration to defend the companies in lawsuits alleging they were involved in child slavery.

With these kinds of attacks on Supreme Court attorneys becoming more common, I felt it would be useful to take a moment to explain why I think they are so misguided. Katyal and I have also been on the other side on a number of cases over the past few years, so I think I have a good feel for whether his arguments are extreme. And lawyers like Katyal can’t really defend themselves because judges expect them to remain largely silent during a pending trial.

My starting point is that our legal system depends on clients having the best lawyers so that the courts can make the best decisions. This is a proposal left by the American left, which prides itself on standing up for treasure on behalf of the powerless, including the criminal defendants. Yet this principle is sometimes lost in a quest for ideological purity.

Two close examples come to mind. Chief Justice Sri Srinivasan of the U.S. District of Columbia Circuit Appeals Court, who will undoubtedly top the Supreme Court shortlist for the Biden administration, has been attacked by Liberals for representing ExxonMobil in a very similar lawsuit. Former Attorney General Eric Holder was heavily criticized from the left for defending Chiquita against similar claims.

Katyal has also been attacked for the specific arguments he made in the Nestle case – as if he were actually defending child slavery, which is absurd. For the reasons I have given, I consider it fundamentally wrong to seek the lawyer for a reasonable position for a client. Here the defendant takes the view that American companies cannot be made liable under a specific law. There is nothing excessive about this argument. A majority in the Supreme Court is likely to agree, even if they don’t adopt the companies’ broadest arguments. It seems that even the plaintiffs cannot point to a previous successful case like this, despite the fact that the law has been around for centuries.

Plaintiffs in the case specifically do not claim that the companies knew the child slavery was ongoing. Unsurprisingly, companies do everything they can to make it clear that their legal position is also limited. To do anything but condemn child slavery would be morally abhorrent (and a public relations disaster, too). Your mandate, written by Katyal, is unconditional and clear that they are not defending what allegedly happened to the plaintiffs or (of course) child slavery in general. At his hearing on Tuesday, Katyal identified five other ways these claims could be brought to court, including criminal prosecution, just not under that one law.

This phenomenon of attacking lawyers personally for the positions of their clients threatens to be completely counterproductive. In general, this seems to be an example of the political left eating its own. Katyal has been one of the most famous progressive lawyers in the country for the past four years. He happens to work for a law firm with their corporate clients. Katyal’s previous experience was instead being attacked from the right for his Supreme Court clients. He was known to be the chief attorney at the Supreme Court for those detained at Gitmo. Katyal and other lawyers were even denounced in advertisements. He can’t win. And with such attacks we all lose.

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Tom Goldstein, confusing Supreme Court attorney with his clients,
SCOTUSblog (December 2, 2020, 1:56 p.m.),