Tuesday’s argument in Nestlé USA v. Doe I  and Cargill, Inc. v. Doe I addressed an important question about whether American companies can be held liable under the Alien Tort Statute. Less important to the larger world, but still important to those who practice law before the Supreme Court, has been a tempest over the role of the defendants’ lawyer, Neal Katyal. Liberals have gone after Katyal, who has generally been regarded as a progressive hero for very visibly taking on the Trump administration, for defending the companies in lawsuits alleging that they were involved in child slavery.

Because these sorts of attacks on lawyers in the Supreme Court have become more and more common, I thought it would be worth taking a moment to explain why I think they are so misguided. Katyal and I have also been on the opposite sides of a whole series of cases over the past few years, so I think I have a good sense of whether his arguments are extreme. And lawyers like Katyal are not really able to defend themselves, because the Justices expect them to stay largely silent while a case is pending.

I start from the idea that our legal system is premised on clients having the best advocacy, so that courts will make the best decisions. That is a proposition that the American left, which prides itself on standing up for the powerless, including criminal defendants, treasures. But nonetheless, that principle sometimes gets lost in a drive for ideological purity.

Two close examples come to mind. Chief Judge Sri Srinivasan of the U.S. Court of Appeals for the District of Columbia Circuit, who unquestionably will be near the top of Supreme Court short lists for the Biden administration, was attacked by liberals for representing ExxonMobil in a very similar suit. 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 that he made in the Nestle case — as if he were actually defending child slavery, which is absurd. For the reasons I’ve given, I think it’s fundamentally wrong to go after the lawyer for a reasonable position of a client. Here, the defendants’ position is that American companies cannot be held liable under one specific statute. There is nothing over the top about that argument. A majority of the Supreme Court is likely to agree with it, 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 one, even though the statute has been around for centuries.

The plaintiffs in the case specifically do not allege that the companies knew that child slavery was ongoing. Not surprisingly, the companies themselves go out of their way to make clear that their legal position is limited too. Doing anything other than condemning child slavery would be morally abhorrent (and a public relations disaster to boot). Their brief, authored by Katyal, is unqualified and unambiguous that they are not defending what allegedly happened to the plaintiffs or (of course) child slavery more generally. On Tuesday, Katyal in his oral argument identified five other ways that these claims could be brought in court, including criminal prosecutions, just not under this one law.

This phenomenon of attacking lawyers personally for the positions of their clients threatens to be totally counterproductive. In general, this seems like an example of the political left eating its own. Katyal is one of the most prominent progressive lawyers in the country over the past four years. He just happens to work for a corporate law firm, with its corporate clients. Katyal’s previous experience has been to be attacked instead from the right for his Supreme Court clients. He famously was the lead lawyer in the Supreme Court for the detainees held at Gitmo. Katyal and other lawyers were pilloried even in advertisements. He cannot win. And with these kinds of attacks, we all lose.

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Recommended Citation: Tom Goldstein, Confusing Supreme Court counsel with their clients, SCOTUSblog (Dec. 2, 2020, 1:56 PM), https://www.scotusblog.com/2020/12/confusing-supreme-court-counsel-with-their-clients/