Former acting Solicitor General Neal Katyal was the lawyer who appeared before the Supreme Court to argue in the Moore v. Harper case, and he not only came prepared, he came prepared to go after the justices with their own words.
As the counsel for Common Cause, Katyal walked through the ways in which the Supreme Court inserted itself into the state laws after previously saying that they were leaving laws up to the states to decide, which is yet another contradiction. That said, the courts claimed "states rights" for abortion but then blocked it for gun regulation.
The exchange between Katyal and Thomas began with the latter saying that he'd been wanting to ask the lawyer questions for 30 years, drawing laughter from the Court crowd.
Katyal fired back: "I've waited for this case for you because it goes to exactly how you interpret the constitution, with history." He went on to explain how the history of the courts shows just how wrong the Republican side is.
"You said this court normally doesn't second-guess state court's interpretation of their own Constitution," said Thomas. "Would you say that in the case of Baker v. Carr?"
"I don't think you declare it unconstitutional. Any number of things. To say they got their own Constitution wrong is just a matter of interpretation. That is -- " Katyal said as Thomas interrupted.
"It was purely an interpretation of their own Constitution," said Thomas.
"And violation of federal law," said Katyal
"Yeah. In the end, it was invalidating their interpretation of their redistricting principles," said Thomas.
"And Justice Thomas, it's the same point picking up on Justice Kavanaugh's questioning. Palm Beach, the court said that sovereignty was at its apex when talking about state constitutions and interpretations by state courts," said Katyal.
"Let me ask you this," Thomas stepped in again. "It may be a bit unfair. If the state legislature had been very, very generous to minority voters in their redistricting and the state supreme court said under their state constitution that this was -- it violated their own state Constitution of North Carolina, would you be making the same argument?"
"Yes," Katyal said.
"Justice Gorsuch said it seems as though it depends on -- though it depends on what ox is being gored. You would be making the same argument?" Thomas asked again.
"This Court never second-guessed state interpretations of their own constitutions," Katyal explained, returning to his argument that the Court has never gone to war with the states like this before. "If it's a general clause and it benefits or hurts minority voters, Justice Sutton says that's the process the states deal with. There is a special safeguard here which is the second half of the elections clause which allows Congress to supplant whatever that errant state decision is."
"What is the source of the authority for the state of North Carolina's Supreme Court to be involved in a federal election?" Thomas asked. "I understand there's no disagreement about a state legislature, but this is a federal election and it's similar to the problem we had with the presidential election in Bush v. Gore."
Bush v. Gore had a provision in it that said it would only apply to that case and should never be used as case law.
"It's just like Smiley, your honor. It's the exact same thing. It's a federal issue. The North Carolina court is interpreting the elections clauses and powers and the question is whether or not they have misread it or not and so I think that's the source of the substantive -- alleged substantive violation here. The spirit of your question, for 233 years, this court's never gotten involved and said, hey, we're going to, you know, say the North Carolina court got it wrong or their provision was too abstract for enforcement or anything like that. Rather, this court has always stayed on the sidelines, let the state process unfold subject to that other part of the trident check, Congress, in the second half of the elections cause."
Meanwhile the debate didn't fare well with the opposing counsel, who faced off against Justice Sonia Sotomayor. At one point she told him, "It seems that every answer you give is to get you what you want, but it makes little sense."
Listen to the argument below or at this link.
Supreme Court Katyal vs. Thomas www.youtube.com