Jonathan Mitchell told the Fifth Circuit public libraries only exist "as a matter of grace"

Mitchell argued the First Amendment shouldn't apply to public library book removal decisions. The appeals court also heard the Mississippi mail voting case.

CHRIS GEIDNER
SEP 25, 2024

On Tuesday, the U.S. Court of Appeals for the Fifth Circuit held oral arguments in two important cases that show what happens when a court signals that no precedent is safe.

The government “has no constitutional obligation to provide libraries,” Jonathan Mitchell, representing Llano County, Texas, in a case about its public library, told the full appeals court sitting en banc in the first case. With public libraries, he declared, governments provide books to the public “as a matter of grace.”

In a case over the Llano County public library removing a handful of books over complaints from a couple of residents, Mitchell’s response once hired to represent the county was first to buy the books himself to replace them and alter or even end the lawsuit. When that didn’t work, he ultimately decided to go for blowing up precedent.

In Tuesday’s arguments before the en banc court, Mitchell said the court should toss out a 1995 Fifth Circuit decision — Campbell v. St. Tammany Parish School Board — that has provided protections against removal of books from public libraries in the circuit for nearly 30 years.

In the arguments in the second case, lawyers for the Republican National Committee, joined by the Mississippi Republican Party, and Libertarian Party of Mississippi argued that the state’s law allowing the counting of mail-in absentee ballots postmarked by Election Day but not received until up to five days later conflicts with federal statutes setting Election Day.

Although they drew a panel of perhaps the three furthest-right judges on the far-right court in Judges James Ho, Kyle Duncan, and Andy Oldham — all Trump appointees — it wasn’t clear they convinced the trio that the court should rule that a law passed by Mississippi (and a policy in effect in more than 20 states) is preempted by the federal statutes (that haven’t stopped any other states in the past).

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