‘Can We Get to the Issue?’ Justice Sotomayor Hammers Trump Lawyer On His ‘Non-Precedential’ Argument

The Supreme Court of the United States heard arguments on Thursday in the landmark case over former President Donald Trump’s eligibility to run for president. The court is hearing an appeal by Trump to a Colorado Supreme Court ruling that removed Trump from that state’s ballot under Section Three of the 14th Amendment for having engaged in insurrection against the Constitution.

Trump’s lawyer Jonathan Mitchell made two arguments against Colorado’s case, including that Trump is not an “officer of the United States” and therefore is not bound by Section Three, which he argued is not self-executing and would ultimately require action from Congress.

After a question from Justice Clarence Thomas, Justice Sonia Sotomayor jumped in and pressed Mitchell to clarify his argument.

“So under Section Three. That’s right. So history proves a lot to me and to my colleagues generally. There’s a whole lot of examples of states relying on Section Three to disqualify insurrectionists for state offices. And you’re basically telling us that you want us to go two steps further. You want two, maybe three. You want us to say that self-execution doesn’t mean what it generally means,” Sotomayor argued, adding:

You want us now to say it means that Congress must permit states or require states to, stop insurrectionists from taking state office. And and so this is a complete preemption in a way that’s very rare, isn’t it?

Sotomayor then pressed Mitchell hard to clarify the precedent he continued to cite for why Congress would need to be the final say in whether or not to remove an insurrectionist from the ballot.

“Let’s just be very clear. Griffin was not a precedential Supreme Court decision. All right. It was a circuit court decision by a justice who, when he becomes a justice, writes in the Davis case. He assumed that Jefferson Davis would be ineligible to hold any office, particularly the presidency, and treated. And this is his words, ‘Section Three is executing itself, needing no legislation on the part of Congress to give it effect.’ So you’re relying on a non-precedential case by a justice who later takes back what he said,” Sotomayor insisted.

“But the key point with Griffin’s case and why it’s an important precedent, despite everything Your Honor said it is not a precedent of this court. But Griffin’s case provided the backdrop against which Congress legislated the Enforcement Act of 1870, when it first provided an enforcement mechanism for it,” Mitchell hit back.

“Then did away with it later,” Sotomayor quickly countered.

The Times’s Charlie Savage explained the background of the exchange, writing, “The discussion of Griffin’s case refers to a decision in 1869 in which a judge ruled that Section 3 was non-self-executing — that is, it cannot can be enforced on its own and would not need a statute from Congress to have legal effect.” The judge who ruled in the case later changed his mind and reversed the decision.

“But that has nothing to say with respect to what Section Three means. Can we get to the issue?” Sotomayor added, summarizing her take on what Mitchell should be arguing:

Which is, I think, one that I go back to that I started with, and very briefly, what sense does it say that states can’t enforce Section Three against their own officials? Because I think logically, those are two separate issues in my mind. Can states enforce the insurrection clause against their own officeholders, or can they enforce it against, federal officials, or can they enforce it against the president? Those are all three different questions in my mind.

Mitchell replied by reframing his earlier points, to which Sotomayor hit back, concluding:

So a non-precedential decision that relies on policy, doesn’t look at the language, doesn’t look at the history, doesn’t analyze anything than the disruption that such a suit would bring. You want us to credit as precedential?

Watch the clip above via Fox News.