Supreme Court Justice Clarence Thomas had his own words used against him in the oral arguments for an election case on Wednesday.
On Wednesday, the U.S. Supreme Court heard oral arguments in the Moore v. Harper case involving the North Carolina Supreme Court and its state legislature. “North Carolina’s legislative leaders are appealing a ruling from the North Carolina Supreme Court striking down the state’s congressional map as an extreme partisan gerrymander,” the American Civil Liberties Union (ACLU) said.
According to the Brennan Center for Justice, North Carolina legislatures have argued that the state Supreme Court did not have the authority to block a “gerrymandered congressional map.”
“The legislators have argued that a debunked interpretation of the U.S. Constitution—known as the “independent state legislature theory”—renders the state courts and state constitution powerless in matters relating to federal elections,” the Brennan Center said.
During the oral arguments, Neal Katyal, an attorney for the Common Cause organization, brought up past remarks that the Supreme Court made in the Bush v. Palm Beach County Canvassing Board case.
“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,” Katyal said. “This Court never second-guessed state interpretations of their own constitutions.”
In Katyal’s remarks, he specifically mentioned page 78 of the Bush v. Palm Beach County Canvassing Board ruling, where the Court said, “It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions.”
Thomas briefly interrupted Katyal’s to point out that he was a member of the Supreme Court during that ruling.
Earlier in their discussion, Thomas said that he has waited 30 years to ask Katyal questions, which came after Katyal said to Thomas that he has waited “for this precise case because it speaks to your method of interpretation, which is history, and the founding evidence here is overwhelming.”
Katyal then went on to bring up several points, saying that the Constitution uses the same word, legislatures, as the Articles of Confederation.
“Second, after the Constitution was ratified, state’s kept regulating it,” Katyal said. “States like Delaware and Maryland and Mississippi expressly regulated federal elections.”
Katyal also brought up New York in 1792, saying that three judges and one governor “vetoed a federal elections bill for the selection of delegates to the House of Representatives.”
See, he just did it. He quotes Thomas back to him from Palm Beach where Thomas wrote “Sovereignty is at its apex when it comes to state courts.”
Again, if Thomas was concerned about intellectual consistency, this would be game, set, match.
— Elie Mystal (@ElieNYC) December 7, 2022
Elie Mystal, a justice correspondent for The Nation, brought up Katyal’s remarks on Twitter and wrote, “He quotes Thomas back to him from Palm Beach where Thomas wrote ‘Sovereignty is at its apex when it comes to state courts.’”
“This whole argument is conservatives –who recently said that state’s rights gave states the rights to force women to give birth against their will– arguing that states don’t have the right to have their own courts apply their own state constitutions,” Mystal said in another tweet.
Newsweek reached out to the U.S. Supreme Court for comment.
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