San Antonio Express-News (Sunday)
Abortion bill architect targets other laws
DALLAS — If Jonathan Mitchell were a comic book character, he would be drawn holding a lawbook in one hand and in the other, a sledgehammer.
Best known as the architect behind Senate Bill 8, the state law that deputizes everyday people as abortion bounty hunters, Mitchell has spent years arguing that the U.S. Supreme Court should reverse its decision in Roe v. Wade.
But as the rest of the country was bracing for the fall of Roe, Mitchell was already moving on. Since opening up a one-man legal shop in Austin four years ago, he has jumped headlong into myriad other lawsuits over everything from the contraceptive mandate to affirmative action to same-sex marriage.
Mitchell says his goal is to systematically dismantle decades of rulings he believes depart from the language of the U.S. Constitution or that impose constitutional rights with no textual basis. With the Supreme Court moving ever more his way, the cases he brings may be a bellwether for the direction of the nation’s legal establishment, and, by extension, the nation itself.
In a rare interview, the former solicitor general of Texas said that the motivation underlying his mission is not religious belief or political ideology or personal animus, but an unflinching conviction that federal courts must interpret the Constitution closely and cannot declare new rights not explicitly afforded in that document.
Mitchell sees himself in the role of redeemer — not destroyer.
“For decades, the Supreme Court has been making up constitutional rights that are nowhere to be found in the language of the document,” said Mitchell, 45. “These decisions are lawless, and they need to be undermined and resisted at every turn until the Supreme Court sees fit to overrule them.”
But where Mitchell sees himself as a devotee to the rule of law, his opponents detect an extremist intentionally dismissing precedent and the real-world consequences of his actions in an effort to wipe a number of fundamental
rights from the lawbooks.
When Mitchell threw his support behind Mississippi’s 15week abortion ban, the case that toppled Roe, he urged the Supreme Court not to be squeamish about other rulings it might knock down.
Interracial marriage is protected under federal civil rights law even though it’s not specifically preserved in the Constitution, Mitchell wrote in an amicus brief co-authored by Adam Mortara. The same could not be said for “the court-invented rights to homosexual behavior and samesex marriage,” they argued.
Obergefell v. Hodges and Lawrence v. Texas, the rulings that declared bans on gay marriage and gay sex as unconstitutional, were “as lawless” as the abortion rulings, they wrote. If Roe were to be overturned, Mitchell and Mortara argued, the court should not hesitate to declare that these other rulings are likewise “hanging by a thread.”
Last month, Clarence Thomas said just that, in a concurring opinion supporting the decision to overturn Roe.
The judicial philosophy underlying the decision to overturn Roe is called textualism, a theory of interpretation that emphasizes a plain reading of legal documents based on their text.
“If a constitutional right is not mentioned in the constitutional text, it doesn’t exist,” Mitchell said in a wide-reaching interview. “I don’t care how desirable it may seem as a matter of policy.”
Just six years ago, at the time of Antonin Scalia’s death, the majority
of Supreme Court justices adhered to an interpretation of the Constitution that looked at it as a living document and relied more on precedent. But the court has shifted and become more receptive to textualist arguments. Even liberal justice Elena Kagan recently declared, “we’re all textualists now.”
This shift is one big reason Mitchell opened up shop in Texas. This is the moment, he believes, to pursue his goal of targeting decisions he considers based on improper interpretations of the Constitution. And with his experience in the state and its favorable tax laws, Austin is the place to do it.
Raised in Pennsylvania, Mitchell attended Wheaton College, which bills itself as preparing students to “make an impact for Christ.” He earned a law degree with high honors from the University of Chicago.
Mortara, a law school classmate, describes his longtime friend as “deeply thoughtful” and “moral,” a man lacking even one “unkind cell in his body.”
“He’s a happy warrior,” added Hiram Sasser, another longtime
friend and executive general counsel of the conservative legal nonprofit First Liberty Institute. “He’s a formidable ally.”
After law school, Mitchell clerked for J. Michael Luttig and Scalia. He was there when the justice wrote one of his most memorable dissents, to the 2003 Lawrence ruling that declared Texas’ ban on gay sex unconstitutional.
From 2010 to 2015, Mitchell served as Texas’ chief appellate lawyer under then-Attorney General Greg Abbott. He argued before the Supreme Court four times and defended the state’s laws against same-sex marriage and abortion. He later taught law at Stanford University and the University of Texas at Austin.
Mitchell opened his own firm in Austin in 2018, the first time he’s been in private practice. He threw himself headlong into the abortion fight in Texas, helping draft city ordinances that sought to outlaw it at the local level. He had a hand in crafting SB8, which empowers private citizens to sue anyone who “aids or abets” an abortion for up to $10,000.
The bill, which essentially bans abortion after about six weeks, became law in September. The Supreme Court allowed it to stay in place and it’s now considered a model by other red states. It catapulted Mitchell into the national spotlight, but he hardly ever speaks to the media. There are only a handful of photos of him online and he would not consent to a portrait for this story.
Even when SB8 was enacted, he wasn’t at the public signing ceremony.
Mitchell, married with children, says he does not have time for hobbies and sees no need to seek the limelight. His firm doesn’t issue news releases when it files new cases or marks a win.
The payoff comes in the victory itself.
He has his hands in cases from California to New York involving such disparate concepts as redistricting, subsidies for Black farmers and religious liberty. While there are a handful of conservative nonprofit law firms pursuing similar cases, with whom Mitchell at times works, “the big law firms won’t touch this stuff,” Mitchell said.
At least two of the roughly 50 cases he is pursuing involve same-sex marriage.
In both, Mitchell argues that government employees with the power to perform marriages in Texas should be able to recuse themselves from performing gay weddings due to religious beliefs. One of the cases, which is awaiting a decision from the 5th Circuit Court of Appeals, provides a preview of how Mitchell would argue for the reversal of Obergefell.
“There is no constitutional right to same-sex marriage,” Mitchell argued on behalf of his client, a county judge who argues that his Christian faith prohibits him from marrying gay couples. Mitchell added: “The federal judiciary has no authority to recognize or invent ‘fundamental’ constitutional rights.”
Despite these cases, Mitchell said he is not trying to “dismantle” gay marriage.
If state legislatures want to pass laws legalizing it, they can, he said. But until the Constitution is amended to include the right to same-sex marriage, he argues that the Supreme Court wrongly decided this issue and the ruling is in play.
The problem, opponents say, is that there are real-world consequences.
The courts have long looked to “reliance interests,” or how people come to count on legal decisions in their everyday lives, when reconsidering rulings. Throwing these considerations out the window is not only legally impractical, it is also ultimately damaging, said Southern Methodist University constitutional law scholar Dale Carpenter.
Millions of gay people have wed since Obergefell was decided, not to mention the children, wills and end-of-life plans affected by those unions.
What’s more, if the state revisits Obergefell and Lawrence because gay rights aren’t explicitly stated in the Constitution, what case is next?
“I don’t think Americans are ready to confront those questions again in the name of a kind of dry textualism,” Carpenter said.
Mitchell played down some of the fears raised by his opponents. He is not worried, for example, about states outlawing contraception if that Supreme Court case is revisited because, he said, that right is protected by federal law.
Charles Fried, the former U.S. solicitor general under President Ronald Reagan, dismissed lawyers of Mitchell’s ilk as fringe actors.
“They’re not conservatives,” he said. “They’re reactionaries. They want to undo the last 100 years.”