'They were withering': Analysts explain why it was a bad day at the Supreme Court for conservatives

The Supreme Court heard arguments in Moore vs. Harper on Wednesday where former acting Solicitor General Neal Katyal went up against the conservative Supreme Court justices and right-wing lawyers trying to justify a Trump ally's "independent legislature theory" that was part of the attempt to overturn the 2020 election results.

Part of the argument from Trump's allies was that if they could convince Vice President Mike Pence to say that there was an issue with the election and it needed to be thrown back to the state legislatures to decide who won. It was thoroughly trounced in an Oval Office debate with White House counselors. Even the architect of the strategy, John Eastman, admitted that it likely wouldn't hold muster if taken to the Supreme Court to decide.

Speaking to MSNBC about the arguments before the court, Mary McCord, former acting assistant attorney general for national security at the Department of Justice, said that the conservatives were "withering."

Katyal "was incredibly well prepared, so were [US Solicitor General] ElizabethPrelogar and Don [Verrilli], and they were excellent. I would say, I actually even thought the attorney for the petitioner did a commendable job really undertaking an hour-long of withering questions, but they were withering," said McCord. "They spent nearly the whole hour on him trying to convince the justices that the line between what would be permissible for judicial review was between procedure and substance, something that has vexed the court for centuries, and something that I think -- either Justice Elena Kagan or Justice Sonia Sotomayor said, that's a legal morass we're not going to get into."

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She also noted that the issue being discussed is part of an extremist view found among conspiracy theorists.

"Today's argument was about the elections clause, it's about state legislature being given the power under the U.S. Constitution to determine the manner of choosing Senators and Representatives. And that manner includes redistricting after the census," she explained. "The other extreme theory that John Eastman was talking about relates to the electors' clause, the clause of the Constitution that gives the state legislature the authority to choose presidential electors. And, you know, at the founding, the state legislators just chose them."

Historically, however, McCord said that the U.S. was dedicated to the popular vote being the voice of the electoral vote.

"Way a long time ago, every state determined to choose them based on the popular vote. And so this theory that Eastman has been propounding and that as others have said, conspiracy theorists and the most extreme fringe of the right has gripped ahold of is this notion that, hey, couldn't we even — after an election — even after the popular vote, have the state legislature said — and this is what Ginni Thomas was encouraging in her emails to Arizona legislators and others, was we think there was fraud. We're not going to follow the popular vote, we're going to put our own slate of electors up for the candidate of our choosing. No, I think that would raise significant constitutional problems under the due process clause and equal protection clauses and that would be challenged immediately. But nevertheless, that's the theory, right? And that's what's been proposed. And I will say, we keep using the word 'fringe.' We're really talking about the fringe here. This should not be a political conversation. I mean, Judge [Michael] Luttig, an extremely conservative judge, I encourage all your viewers to read what he's written about this. There is no basis in the history of the Constitution or in its test for this fringe theory."

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