Former Acting Solicitor General Neal Katyal returns to the Supreme Court lectern this week for the first time since entering private practice at Hogan Lovells in September 2011. And he’ll argue not one but two cases in the upcoming cycle, six days apart.
On Nov. 27, he will represent US Airways in an important ERISA case titled US Airways v. McCutchen. And on Dec. 3 he argues on behalf of the plaintiff employee in a Fair Labor Standards Act dispute, Genesis HealthCare Corp. v. Symczyk.
The last time Katyal stood before the justices was in April 2011 when he represented the Tennessee Valley Authority as acting SG in the “greenhouse gases” case of American Electric Power Co. v. Connecticut. He has argued 15 cases at the Supreme Court in his career.
Katyal readily acknowledges that “sure, argument preparation is different now.” For one thing, echoing other government lawyers who go into private practice, Katyal said, “it’s really terrific to have living and breathing clients during the mooting and briefing. I have absolutely loved getting to know the business plan, the hopes, the desires, the fears, of the clients.”
Another difference from arguing while at Justice Department, Katyal said, is that it is “always tough to lose the amazing lawyers at the solicitor general’s office” who are known for staging tough and prescient moot courts for advocate about to argue at the Supreme Court. But Katyal said the appellate team at Hogan has proven to be “the best possible substitute.” He added, “If I had to go into court without my old colleagues, there’s no one else I’d rather be in the trenches with.” Working with other co-counsel has also been “super-enjoyable,” Katyal said.
Because of the closeness of the two arguments, and the rest of his casload, Katyal said he had to “massively” rearrange his usual ways of preparing for argument. He did his first moot court in October, and worked on the US Airway case on even weeks and Genesis on odd weeks. Whenever he could, Katyal also watched high court arguments during their November and December sittings, “to keep myself current with the conversation at the court.”
Another stress factor this week, Katyal joked, is that “my son Harlan and his entire first grade class are coming to watch” the US Airways case.
Katyal attributed one other change in his argument preparation to the advent of a new digital online music service. “Because I love preparing for argument to rock music, the arrival of Spotify, which allows me to listen to oodles of loud new music, has made things much more pleasant,” he said.
Numerous other veterans of the SG’s office will also be arguing in the final argument cycle of 2012. In fact, current lawyers from the SG’s office will be at the lectern in all nine of the cases scheduled for this cycle – except for Katyal’s successor, SG Donald Verrilli Jr. His absence may reflect the fact that none of the scheduled cases – with the possible exception of Vance v. Ball State University, a major employment discrimination case – implicate top-tier government interests. Deputy SG Sri Srinivasan argued in the Vance case today. Two other former SGs – Seth Waxman, now with Wilmer Cutler Pickering Hale and Dorr and Latham & Watkins’ Gregory Garre also argued in cases today.
Contact Tony Mauro at firstname.lastname@example.org.