Principal Deputy Solicitor General
The U.S. Supreme Court has a tendency to defer to the president in times of war. Even Neal Katyal has called himself a “presidential deferentialist.” But not absolutely. When he read the White House news release announcing President George W. Bush’s plan for military commissions to try terrorism detainees, he told Legal Times in 2006, “I went into my classroom and said, ‘Hah. I’ve found something that’s totally unconstitutional.’ “
The surprise was that Katyal, making his first high court argument, convinced five justices to agree. In Hamdan v. Rumsfeld, the Supreme Court upended the Bush administration’s plans to judge Guantánamo Bay, Cuba, detainees in streamlined military commissions, ruling that the commissions as proposed were illegal because they neither operated by the rules of regular courts-martial nor were authorized by Congress. It was the first of three high court decisions in Bush’s second term that ruled against his detainee policy, and its effects are still being felt today as the current administration very publicly struggles with how to try terrorism suspects.
Although Katyal, then a professor at Georgetown University Law Center, was not the only lawyer on the Hamdan case, high court observers reserve particular praise for his oral argument. Following the Hamdan victory, Katyal became a regular contributor to the terrorism policy debate, appearing on everything from legal panel discussions to nightly news networks to the Colbert Report.
Most recently, he defended the U.S. Department of Justice — in speeches and newspapers columns — against criticism of DOJ lawyers with a history of advocating for Guantánamo detainees in private practice. But that defense came not from professor Katyal but from Principal Deputy Solicitor General Katyal. President Barack Obama named him to the job in January 2009. And from the inside, Katyal, 39, sometimes must defend the government’s detainee policy.
NAACP Legal Defense Fund
For John Payton, director-counsel and president of the NAACP Legal Defense and Educational Fund, the idea of a racism-free America is a work in progress. But progress he has made in the past 10 years as one of the nation’s most accomplished civil rights attorneys.
Among his greatest accomplishments of the decade are two affirmative action cases in the U.S. Supreme Court in 2003 against the University of Michigan. Payton, 63, represented the school at the time as a partner at Wilmer Cutler Pickering Hale and Dorr. Although Payton lost in Gratz v. Bollinger, the challenge to the University of Michigan’s affirmative action efforts in undergraduate admissions, the court ruled in favor of the law school’s use of race as a factor in admissions in Grutter v. Bollinger. The decision was hailed as a major victory for affirmative action advocates following a period of successful state initiatives prohibiting its use. Payton was lead counsel in both cases through the circuit court arguments and handled the undergraduate argument in the high court.
During the current U.S. Supreme Court term alone, the fund has filed amicus briefs in five cases, and Payton himself argued for a group of minority firefighters on Feb. 22 in Lewis v. City of Chicago. The firefighters are pushing for a more generous interpretation of a 300-day limit for filing discrimination claims with the U.S. Equal Employment Opportunity Commission.
“We are working on matters that going to make an inclusive democracy,” said Payton, who was tapped for the Legal Defense Fund position in 2007 after more than 20 years at Wilmer.
Jenner & Block
Last year, the Legal Defense Fund took on the aftermath of Hurricane Katrina, filing suit in the U.S. District Court for the District of Columbia alleging discrimination in the U.S. Department of Housing and Urban Development’s system for returning homeowners to New Orleans.
It took two powerhouse lawyers from very different corners of the legal world to redefine the nation’s highest court as a gay-friendly bench. Between them, Paul Smith, a partner at Jenner & Block, and Ruth Harlow, then the legal director at Lambda Legal, persuaded the U.S. Supreme Court in 2003 to strike down state anti-sodomy laws in Lawrence v. Texas. And the march for gay rights began to move so fast that, less than a decade later, same-sex marriage is a reality in several states.
For Harlow, 49, the decision in Lawrence came after years of challenging anti-gay laws state by state — challenges made necessary because the Supreme Court had ruled in 1986 that the U.S. Constitution didn’t protect the right of gay adults to have sex. Harlow said she and her colleagues at Lambda realized it was “unlikely” that Texas itself would strike down the anti-sodomy statute. Sure enough, the state’s highest criminal court refused to hear the case after a lower court ruled against the gay couple who had been arrested for having sex. When it came time to file a certiorari petition, Harlow turned to Jenner & Block and, ultimately, to Smith.
Smith, 55, who like Harlow is openly gay , was already an accomplished Supreme Court advocate. However, he said that at the time he was relatively uninvolved in gay rights issues. Some of his best work was in the area of First Amendment law, including a case challenging a law requiring libraries to filter Web sites for obscene content. Nonetheless, Lambda Legal chose him, both for his experience and for the symbolic message his presence would send. We “didn’t want to present it as a gay rights activist coming to the Supreme Court, of which I would have been the embodiment,” Harlow said. “The Court would feel comfortable with [Smith] as he stood there making his argument.”
Looking back, Smith called his oral argument in Lawrence the best of his career. But he said it was more for the public than the justices. “It would have been shocking if any of the judges didn’t know what they were going to do” beforehand, he said. Since Lawrence, Harlow and Smith have in some senses swapped places. After a brief respite from the law, during which she did a stint at architecture school, Harlow now practices corporate law at Linklaters in New York. Smith, meanwhile, has become co-chairman of Lambda Legal. He said he’s scheduled to work on a challenge to the Defense of Marriage Act, the federal law defining marriage as between only a man and a woman.