Georgetown colleagues set for rare Supreme Court faceoff in NRA case

For the first time in Georgetown Law’s history, two of its law professors will go head-to-head before the Supreme Court, when it hears the National Rifle Association’s (NRA) fight against a former New York regulator on Monday.

The case has created some unusual battle lines. For one, it implicates free speech, not the Second Amendment. The American Civil Liberties Union (ACLU) has taken on the case — but for the first time, it’s representing the NRA.

And, the faceoff is set to put the ACLU’s David Cole against his Georgetown colleague, Neal Katyal, an Obama-era acting U.S. solicitor general who is also a partner at Hogan Lovells.

In interviews, both professors delivered high praise for each other and expressed little hesitation at their rare match-up.

“I just could not have more respect for someone than I do for David,” said Katyal. “He’s not just an extraordinary advocate and scholar, he’s just like the nicest person, so that makes us different than the usual Supreme Court argument, to be sure.”

“I’m also pretty used to David being on the right side of things, so that’s an unusual thing for me,” Katyal joked.

Cole represents the NRA in its First Amendment lawsuit against Maria Vullo, whom then-New York Gov. Andrew Cuomo (D) appointed to lead New York’s Department of Financial Services. Katyal represents Vullo.

The NRA sued Vullo, who is no longer in office, after she investigated the gun rights group starting in fall 2017. At first, her investigation led companies that administered NRA-endorsed insurance programs to acknowledge their programs were unlawful.

At issue before the justices is what happened next. Vullo sent guidance letters urging banks and insurers regulated by her department to sever ties with the NRA, warning of “reputational risks” in the wake of the Parkland school shooting that had recently taken place, killing 17 students and staff.

The NRA claims Vullo’s actions amounted to coercion in violation of the First Amendment.

Cole defended the ACLU’s decision to represent the NRA, despite acknowledging the ACLU “differs deeply” with the gun rights group in most of what it advocates for. Just this term, they’ve filed friend of the court briefs on opposite sides in a major Second Amendment case at the Supreme Court.

“It is part of our DNA,” Cole said. “It’s part of who we are. We believe that rights are universal, and that First Amendment rights, in particular, must extend to our enemies if we want them to protect our friends.”

Perhaps just as rare as the ACLU’s alliance with the NRA is Cole’s faceoff with his longtime colleague. 

It wasn’t planned. Once the Supreme Court in November agreed to hear the case, Cole and Katyal both signed on to argue it after the NRA and Vullo, respectively, asked them. It wasn’t until shortly afterward that it became clear the colleagues were opponents.

“I got a call out of the blue from Maria Vullo, asking if I would argue her case,” Katyal recalled. “And I, at first, said I didn’t know there was a case.”

It’s a twist for the duo that has long worked together, including in their fight against President Trump’s travel ban policies. Although their lawsuits were technically separate, Cole said he and Katyal effectively became “co-counsel.”

But their relationship stretches back into the 1990s, when each arrived at Georgetown.

As Cole put it, “we go way back.”

When Katyal prepared for his first Supreme Court argument in March 2006 — a major case involving Guantanamo Bay — Cole sat in for a mock argument, called a moot. Cole peppered his fellow professor with questions to anticipate the nonstop hypotheticals and concerns the justices might raise. For that case, Katyal held more than a dozen sessions.

“At the time, I thought that seems excessive,” Cole said. “But it did make me think, actually, there’s some benefit to doing more, more rather than fewer moots.”

The two attorneys later reversed roles, with Katyal prepping Cole in one of his own Supreme Court moots. 

This round, however, they’re assembling separate teams.

Katyal, who now has 50 arguments under his belt, conducted six moots. Cole said his magic number is four. 

Although Monday is the first time Georgetown’s law professors will face off at the Supreme Court, academics at the school have before appeared on the same side.

Twenty-one years ago, then-Georgetown professor Nina Pillard, Cole’s wife, appeared before the high court to represent a Nevada government employee who was suing the state under the Family and Medical Leave Act. 

Viet Dinh, a fellow Georgetown Law professor who was on leave for a stint at the Justice Department, defended the law on behalf of the federal government.

Both no longer work at Georgetown. In 2013, Pillard became a federal appeals court judge, and she recently gained national attention for hearing Trump’s appeal of a gag order imposed in one of his criminal cases. Dinh became Fox Corp.’s chief legal and policy officer, a post he served in until last year.

Cole and Katyal both suggested the pattern of Georgetown professors at the high court together is no coincidence. The school is rare in its support of professors to be both scholars and active lawyers, they said.

William Treanor, the dean of Georgetown’s law school, said Cole and Katyal are representative of the school’s faculty, pointing to how 21 professors filed briefs at the Supreme Court last year while five testified before Congress.

“It’s something that we encourage, and I think it really produces people who are better scholars,” said Treanor. “Because they know what the real issues are that we’re facing today, and so they have the insight of both academics and practitioners.”

Even as Cole heads to the Supreme Court and works for the ACLU, he teaches constitutional law and last semester held a First Amendment class.

“The fact that you’ve got Georgetown professors on both sides in the past, we’ve had Georgetown professors on the same side, I think there are very few law schools that could actually make that claim,” said Cole.

Katyal said, “I’m pretty sure it hasn’t happened anywhere else.”

Beyond his Hogan Lovells role, Katyal is also an MSNBC legal analyst, where he has become a prominent commentator on the Supreme Court and Trump’s legal battles.

Katyal also serves as faculty adviser at Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection. The institute joined forces with Hogan Lovells to be part of Vullo’s legal team at the Supreme Court.

“It’s not just Georgetown versus Georgetown,” Katyal said. “We also have — it’s Georgetown professor versus Georgetown institute.”

Updated at 6:10 pm.