Katyal rejects the simple idea that judges invariably vote for the party that appointed them. He suggests that attitudes toward constitutional limits and judicial deference can sometimes offer a more useful axis for understanding decisions.

A Democratic appointee wrote the Federal Circuit dissent.
A Republican appointee joined the majority against the tariffs.
Judicial philosophy does not map perfectly onto partisan sponsorship.
Some judges emphasize limits while others emphasize deference.

“This is not my experience. I mean, I've been lucky to argue fifty two K is there, and I just don't see it in the…”
Neal Katyal · 14:56

“I think that there are people who take constitutional limits more seriously and others who want to defer and avoid getting the courts in the…”
Neal Katyal · 15:26

#supreme court#judges#partisanship#constitutional law

Hot Take· 1

Hot Take39:28

The Voting Rights Act Could Be Stripped of Its Last Major Protection

Katyal recounts defending the Voting Rights Act after Obama’s election and rejecting the claim that electing a Black president proved discrimination had ended. He warns that after Shelby County invalidated one central provision, a pending challenge to Section 2 could leave no meaningful Voting Rights Act protection.

Obama’s election did not eliminate localized voting discrimination.
The Court initially accepted Katyal’s defense of the law.
Shelby County later struck down another key portion.
Section 2 faces a new Supreme Court challenge.
Katyal considers the potential loss of the statute dangerous.

“the very fact that we've been able to have an African American president isn't alone enough to to say there isn't discrimination in voting”
Neal Katyal · 40:04

“we very well may have a world in which there is no Voting Rights Act left whatsoever, which is a very dangerous thing.”
Neal Katyal · 40:40

#voting rights#section 2#shelby county#democracy

Explainer· 4

Explainer25:03

What the Tariff Ruling Did—and the 45-Day Clock It Started

The Federal Circuit ruled seven to four that the challenged tariffs were illegal while temporarily allowing them to remain in effect. It shortened the government’s normal Supreme Court petition period from ninety days to forty-five, creating an expedited path toward final resolution.

The appellate ruling favored the small-business plaintiffs seven to four.
The tariffs temporarily remained in force.
The government received forty-five days to seek Supreme Court review.
Failure to seek review would leave the tariffs illegal and void.

“The terifts will be permitted, but only for forty five days while the government goes and government may go and ask the US Supreme Court…”
Neal Katyal · 25:06

“Normally they have ninety days to do so.”
Neal Katyal · 25:46

#tariffs#federal circuit#supreme court#appeals

Explainer06:44

Why the Appeals Court Remanded the Remedy Question

Although the appellate court addressed the tariffs’ legality, it returned the scope-of-relief issue to the lower court. Katyal links that move to the Supreme Court’s recent treatment of broad relief, class actions, and who may benefit from a judgment.

Legality and the scope of relief are distinct questions.
Recent Supreme Court doctrine changed how courts consider relief beyond named parties.
The remand did not erase the appellate holding on the tariffs.
Katyal viewed the remedy issue as secondary to likely Supreme Court review.

“it sent it case back to the lower court to evaluate the scope of the remedies.”
Neal Katyal · 07:44

“I think that's pretty much a sideshow at this point.”
Neal Katyal · 08:11

#remedies#injunctions#class actions#tariffs

Explainer16:22

The Major Questions Doctrine Cuts Both Ways

Katyal explains that Congress must speak clearly when granting an executive sweeping authority over consequential matters. A doctrine used to invalidate major Biden administration initiatives could therefore also undermine Trump’s tariff program.

Congress does not normally hide vast powers in vague statutory language.
The emergency statute did not expressly use tariff or duty language.
The doctrine has previously constrained policies involving loans, emissions, and evictions.
Claims of enormous economic consequences strengthen the argument for congressional action.

“if Congress is giving the president some sort of power, they don't hide it in vague terms. They say it really expressly and clearly.”
Neal Katyal · 16:31

“this isn't just an elephant in a mousehole, it's a galaxy in a key hole.”
Neal Katyal · 16:49

#major questions#tariffs#delegation#supreme court

Explainer26:03

Why Presidential-Power Litigation Moves Faster Than Normal Appeals

The tariff case advanced from filing to trial and en banc appeal on an unusually compressed schedule. Katyal says courts accelerate presidential-power disputes because the stakes are high, while still preserving enough time for briefing and institutional deliberation.

The Federal Circuit heard the case en banc rather than through a normal three-judge panel.
Briefing time was substantially shortened.
Presidential-power cases commonly receive expedited treatment.
Eleven judges still need time to reach a majority.
Supreme Court review would require additional party and amicus briefing.

“It is moving rapidly, and that's common in presidential power cases because there's so much at stake”
Neal Katyal · 26:43

“The Federal Court of Appeals says, on their own, this case is so important that we're going to have all eleven of our judges here…”
Neal Katyal · 49:10

#appellate procedure#presidential power#litigation#courts

Story· 2

Story31:16

How Guantanamo Turned a Professor Into a Supreme Court Litigator

Katyal planned to spend his career teaching law until the post-9/11 military commissions drew him into litigation. With little practical litigation experience, law students, and eventual support from Perkins Coie, he represented Osama bin Laden’s driver and defeated the Bush administration at the Supreme Court.

Katyal initially intended to remain a law professor.
He concluded that unilateral military commissions were unconstitutional.
His client was Osama bin Laden’s driver.
The case was his first Supreme Court argument.
The victory changed his career and connected him with Barack Obama.

“you got this piece of paper, neil a law degree, you could actually sue the president”
Neal Katyal · 33:35

“I work my tail off and we win, and then my life changes”
Neal Katyal · 35:23

#guantanamo#career#supreme court#litigation

Story36:08

Katyal Used Originalism to Defeat the Election-Law Theory

In Moore v. Harper, Katyal challenged the independent state legislature theory by addressing the conservative Court through its own originalist commitments. He used Justice Thomas’s predictable first question to introduce four historical points and shift the courtroom dynamic, although Thomas himself was not among the votes he won.

The theory could have expanded state legislatures’ control over presidential elections.
Katyal framed the challenge around the Constitution’s original understanding.
He anticipated that Justice Thomas would ask the first question.
The Court rejected the theory six to three.
The tactic influenced other justices rather than Thomas.

“I've been waiting for this case because it speaks to your method of constitutional interpretation, the original understanding”
Neal Katyal · 38:34

“I didn't win Justice Thomas's vote, but I won a bunch of others.”
Neal Katyal · 39:04

#moore v harper#originalism#elections#oral argument

Q&A· 1

Q&A1:03:46

Even an Illegal Tariff Does Not Guarantee a Quick Refund

The plaintiffs asked to have the tariffs declared unconstitutional, illegal, and void, but refund claims were not yet part of the briefing. Katyal notes that earlier refund actions involving unlawful tariffs remained in court for years, so importers could face a separate and lengthy recovery process.

Invalidating a tariff and refunding payments are separate remedies.
The plaintiffs had not yet briefed refund entitlement.
Past tariff refund litigation continued for years.
Consumers who indirectly absorbed higher prices may have no practical recovery route.

“That's not something that's been briefed yet or argued.”
Neal Katyal · 1:04:27

“it's a long process, that refund process to the extent it's available.”
Neal Katyal · 1:04:48

#tariff refunds#remedies#importers#litigation

Takeaway· 1

Takeaway1:04:56

Tariffs Raise Prices Like a Tax on American Consumers

Katyal agrees that tariffs function as taxes whose costs appear in ordinary consumer purchases. He cites the Tax Foundation’s assessment that the policy represented the largest tax increase on American consumers since 1993.

Tariffs increase the prices paid by consumers.
The effects can appear across retail and grocery purchases.
Consumers are unlikely to recover those distributed costs directly.
The Tax Foundation characterized the increase as historically large.

“I think you're right to characterize tariffs as a tax. I think you're one hundred percent right.”
Neal Katyal · 1:05:05

“this is the largest tax increase on American consumers since Bill Clinton in nineteen ninety three.”
Neal Katyal · 1:05:26

#tariffs#consumer prices#taxes#economy

Frameworks in this episode

Emergency Executive Power Test

Future-Holder Power Test

Relentless Appellate Argument Practice Loop

Insights & moments

⚡Myth Buster· 1

Why Party Labels Poorly Predict Supreme Court Votes

◆Hot Take· 1