The Conservative Who Wants to Bring Down the Supreme Court

    On the day that the Supreme Court overruled Roe v. Wade, the lawyer Jonathan Mitchell was at the National Association of Christian Lawmakers conference, where he was to receive an award for having enabled “the most successful pro-life legislation to date.” Mitchell was the author of the legislation that had effectively ended abortion access—first in Texas and then in Oklahoma—while Roe was still good law. As news broke at the conference that Dobbs v. Jackson Women’s Health Organization had come down, “people were crying, men and women both,” Mitchell said. “I think they really thought there was divine intervention.” But Mitchell felt something different from the joy all around him about saving unborn babies. He was awash in relief that the Court as an institution might be able to redeem itself in a legal sense. He kept his feelings to himself. “I didn’t want to put a damper on things, because everybody else was just, ‘Praise Jesus.’ ”

    Unlike most lawyers and legal scholars who profess to be committed to the rule of law, Mitchell does not find it disturbing that several states, following his advice, managed to nullify a constitutional right long before the Supreme Court did. That is because his mission is to undermine the Court itself as the final authority on the meaning of the Constitution. He first laid out his arguments in several law-review articles, one of which proposed that legislatures could “overcome federal-court rulings” they oppose by drafting statutes that insulate them from judicial review. He then put his arguments into practice, using abortion as the perfect test case.

    Senate Bill 8, which Texas enacted in September, 2021, banned abortion after about six weeks of pregnancy. Since Roe, such bans had not survived constitutional challenges in court. But, rather than put any state officials in charge of enforcing the ban, Mitchell saw to it that S.B. 8 would empower only private citizens to enforce it, by suing abortion providers (or any aiders and abettors) in state court. Abortion clinics, scared of being sued, largely fell in line, following the new restrictions or closing entirely—even though the legislation clearly defied the Court’s abortion cases. Whole Woman’s Health and others sued Texas officials, in an effort to block the ban, but Mitchell felt confident that they would be unsuccessful, because state officials had no part in enforcing the ban. By his design, there was no defendant to sue—and that meant a law openly flouting the Supreme Court’s constitutional precedents could remain in effect.

    When the abortion providers’ case reached the Supreme Court, Justice Elena Kagan was scathing about the notion that “after, oh, these many years, some geniuses came up with a way to evade” the Court’s command “that states are not to nullify federal constitutional rights.” Conservative Justices sounded troubled by it, too. But then five conservatives largely acquiesced in the scheme to shield the statute from judicial review, even though, as Chief Justice John Roberts lamented in dissent, “the clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings.” More than six months before the Court overruled Roe, the Court gave its blessing to box out the federal judiciary itself.

    For more than a year, Mitchell has mostly refused to talk to journalists on the record. But, in the past months, he agreed to conversations with me, in which he emphasized the broader stakes of the tactic for which he became known. Early on, Mitchell insisted that, although he personally opposes abortion, “I’m not an anti-abortion activist. I never have been.” His goal is to destroy “judicial supremacy”—the idea that the Supreme Court is the final authority on the meaning of the Constitution—a campaign with bipartisan potential at a moment when liberals and progressives have little to gain from an imposing conservative Court. Liberal legislatures, for example, may wish to defy unfavorable precedents on guns, campaign finance, free speech, and voting rights. Mitchell, for one, would support them if, in his view, the Court is deviating from the Constitution’s text. He believes that conservatives “did not deserve to win” Citizens United, from 2010, which held that campaign-finance restrictions violated corporations’ First Amendment rights, or Shelby County v. Holder, from 2013, which declared a key provision of the Voting Rights Act unconstitutional. “Progressives have plenty of legitimate grievances,” he said.

    Jack Goldsmith taught Mitchell civil procedure at the University of Chicago Law School and later was his boss, as the head of the Justice Department’s Office of Legal Counsel. “He really means it when he says it’s about judicial supremacy. That is not bullshit,” Goldsmith, who is now a professor at Harvard Law School, where I am also on the faculty, said. “Since I’ve known him, he has had a deep dislike of the idea that the courts have the final say on the Constitution. On this, he’s the most principled person of anybody in the conservative legal movement.” After decades of tireless efforts by the Federalist Society to populate the federal judiciary with conservatives, Mitchell is crusading to cut down the judiciary’s power and urging progressives to do so, too.

    I met Mitchell in person in April, when he came to Harvard to discuss S.B. 8 in Goldsmith’s Federal Courts class. It was during the doomed lead-up to Dobbs, and the air in the high-ceilinged lecture hall was full of ambivalent anticipation. Mitchell, who has a pale, cherubic face and sandy hair, was dressed as he would be for court: in a plain gray suit and dark shoes. He is not an A-lister in the conservative legal movement. He is oblivious to the pleasures of working a room. When Mitchell gets animated and talks fast, it is invariably about the internal puzzles of Supreme Court opinions, of which his recall is precise and encyclopedic. He has told reporters that he has no hobbies, but he plays the piano; he and his six younger brothers performed jazz music together at each of their weddings, improvising on various instruments.

    One of Mitchell’s close friends from law school is a female lawyer who is married to a woman. She recently told her teen-age daughter that, if their family ever needed someone to donate an organ, she knew they could call on him. “But, at the same time, his views, the results of his views, and his politics felt not nice, to put it mildly,” she said. “I always assumed that, since Jonathan is such a good person, that when he aged and knew more people, his views would evolve. I really have trouble reconciling these two parts of him, given my politics and my view of the world, because I just find him to be such a kind, loving person.” But Mitchell doesn’t strike her as “a true believer who will marshal his arguments to justify the outcome,” she said. “I think he actually believes these legal arguments.”

    From the first, classmates at Chicago knew that he couldn’t get enough of Justice Antonin Scalia. He had a Web site called Scalia Shrine, featuring links to favorite opinions and quotes, and a “guestbook” for people to leave messages. He feels embarrassed at this “sappy,” youthful manifestation of his “man-crush.” (He heeded the advice of a professor to take the Web site down before applying for clerkships.) “I was a textualist from the moment I arrived at law school,” he explained, referring to the method of interpretation that Scalia advocated, in which “the text is the law, and it is the text that must be observed.” Mitchell said, “I’d read the Constitution, and there’s no right to abortion in there. The Supreme Court had said there is, and they were making it up.” At the end of his first year, in 1999, he told Goldsmith that he was going to work to get rid of Roe v. Wade. “I didn’t scoff at him,” Goldsmith recalled, “but I said, ‘Good luck with that.’ ”

    Adam Mortara, who describes himself as Mitchell’s “best intellectual buddy and law friend,” was his classmate at Chicago, where, Mortara recalled, Mitchell’s dream was to join the faculty. In their third year, they both took Federal Courts with David Strauss, a leading proponent of “living constitutionalism,” the idea that constitutional meaning evolves along with changing social values. Led by Scalia, conservatives had for decades railed against living constitutionalism as an undisciplined approach that allowed unelected judges to impose their preferences on the populace under the guise of constitutional interpretation. But both Mitchell and Mortara told me that they consider Strauss one of their deepest influences. Strauss showed through his rigorous scholarship that originalism did not constrain judges to the extent that it claimed to, nor was it even the original method for interpreting the Constitution. Mitchell would later suggest in print that some of Scalia’s ​opinions “were too quick to find an original meaning in cases where the historical evidence is at best conflicting or unclear.”​​ Rather than heartily embrace originalism, as many conservatives did, the duo gravitated toward suspicion of strong judicial review under any method.

    In the spring of 2001, Mortara was keeping up with recent decisions of the Fifth Circuit, where he was going to clerk upon graduation. He noticed a case involving a Louisiana law that allowed women to sue doctors for injury from abortions. The Fifth Circuit held that, because the state’s attorney general, whom the statute’s challengers had sued, didn’t have any role in enforcing the law, the court could not hear the case and was “powerless to act except to say that we cannot act.” Mortara brought the intriguing decision to Mitchell, who was ensconced in a library carrel. “I remember his face. He was excited,” Mortara recalled. “Jonathan takes a kernel of an idea and builds it into a giant oak tree.”

    Mitchell clerked for Justice Scalia during the 2002-03 Supreme Court term, which, he recalled, “started out well for the conservatives and ended very poorly.” At the end of that term, the Court upheld the constitutionality of affirmative action in university admissions (a question that is back at the Court this term). It also held, in Lawrence v. Texas, that criminalizing gay sex was unconstitutional. In that decision, Justice Anthony Kennedy relied on the Court’s privacy precedents, including Planned Parenthood v. Casey, the 1992 case that reaffirmed the core of Roe v. Wade. Scalia bitterly dissented in Lawrence, predicting that a constitutional right to same-sex marriage would follow (it did, in 2015), and deriding Casey’s lofty statement that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” (Scalia sarcastically called it the “sweet-mystery-of-life passage.”) Mortara was a clerk for Justice Clarence Thomas at the time. He described Mitchell as “good cop” to his “bad cop,” because of Mitchell’s willingness to talk and listen in respectful disagreement for hours with their liberal colleagues. “I was dying,” Mortara said. “We grew up in a world of law where garbage from so-called swing Justices was forced down our throats day after day.”

    Mitchell went on to a tenure-track job at George Mason University’s law school (which has since been named for Scalia). But, shortly into his academic career, in 2010, the solicitor general of Texas, James Ho (now a Donald Trump-appointed Fifth Circuit judge), called “out of the blue” to see if he wanted to replace him. It was a plum job for a legal conservative, one that Ted Cruz had held until 2008, and Mitchell accepted, going on to write briefs for Texas that received awards from the National Association of Attorneys General. But, on one occasion, the Fifth Circuit struck a brief that his office submitted because its “disturbingly unprofessional tone” revealed “a lack of respect for the court.” Among other things, the brief decried the “folly” of a decision that “foists state-law questions upon federal judges who have no business answering them.” Word reached him that, more generally, the snark in his office’s briefs was rubbing some judges the wrong way and had the law clerks guffawing. He dialled back the snark, but not by much. He thought that his tone was never any worse than the sharp rhetoric in opinions by Scalia, or by Frank Easterbrook on the Seventh Circuit, another favored jurist. “But they have life tenure, and I don’t.”

    After about four years in Texas government, Mitchell sought to relaunch his academic career. From temporary positions at Stanford’s Hoover Institution and Stanford Law School, he published scholarship that continued his assault on judicial power. Mitchell disapproved of the Supreme Court’s use of “language that makes its precedents seem sacrosanct or irreversible,” even going “so far to equate its interpretations of the Constitution with the Constitution itself.” The conventional idea that courts can “strike down,” “invalidate,” or “block” statutes was, he wrote, simply wrong. A court can “opine” that a statute is unconstitutional and tell an official not to enforce it, but the statute nonetheless “remains a law until it is repealed by the legislature that enacted it.”

    This quietly radical position has led Mitchell to some startling conclusions: he thinks that the conservative majority in Shelby County v. Holder used “made-up” principles to declare key provisions of the Voting Rights Act unconstitutional. (“Not in the Constitution,” he said.) In fact, because the Court, in his view, does not have power to invalidate acts of Congress at all, states would be well advised to continue following those purportedly stricken provisions—which require localities with a history of discrimination to submit voting laws for federal “preclearance.”

    Mitchell went on the academic job market again but received very little interest. (Strauss, his former professor, said, “I think it’s mostly that his scholarship was so doctrinal and kind of narrow-feeling. I think in some places it’s undoubtedly because of the politics.”) Meanwhile, Trump’s 2016 win meant a new Republican Administration was forming, which led him to pursue a job in the White House or the Justice Department. After working on the Trump transition team as a volunteer attorney reviewing draft executive orders, he was promised a senior position in the Office of Legal Counsel. But that, too, did not pan out. “I was vetoed by somebody for some reason. I don’t know what or why,” Mitchell said. He was then nominated to lead the Administrative Conference of the U.S., a little-known independent agency, but, after Democrats objected to him as too partisan, the nomination languished, with no Senate vote.

    Mitchell said, “I needed to figure out something else to do.” In 2018, just as a conservative majority solidified on the Supreme Court, he launched a solo law practice that has been active in dozens of suits involving conservative causes. As Goldsmith put it, “Suddenly he starts doing these strange cases. I thought they were strange cases. He didn’t have a ton of trial-court litigation experience. But then suddenly he’s filing all manner of amazingly consequential, imaginative lawsuits”—some of them on behalf of extreme cultural conservatives.

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