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.”