Jonathan Mitchell | |
---|---|
Solicitor General of Texas | |
In office December 10, 2010 – January 5, 2015 | |
Attorney General | Greg Abbott |
Preceded by | James C. Ho |
Succeeded by | Scott A. Keller |
Personal details | |
Born | Jonathan Franklin Mitchell September 2, 1976 Upland, Pennsylvania, U.S. |
Education | Wheaton College (BA) University of Chicago (JD) |
Jonathan F. Mitchell (born September 2, 1976)[1] is an American attorney, academic, and former government official. From 2010 to 2015, he was the Solicitor General of Texas. He has argued five cases before the Supreme Court of the United States.[2] He has served on the faculties of Stanford Law School, the University of Texas School of Law, the George Mason University School of Law, and the University of Chicago Law School.[1] In 2018, he opened a private solo legal practice in Austin, Texas.[3]
Mitchell is credited with devising the novel enforcement mechanism in the Texas Heartbeat Act, also known as Senate Bill 8 (or SB 8), which outlaws abortion after cardiac activity is detected and avoids judicial review by prohibiting government officials from enforcing the statute and empowering private citizens to bring lawsuits against those who violate it.[4][5] On September 1, 2021, the Supreme Court of the United States refused to enjoin the enforcement of SB 8, marking the first time that a state had successfully imposed a pre-viability abortion ban since Roe v. Wade.[6]
Education
Mitchell was raised in a religious Christian home in Pennsylvania.[7] He has six brothers.[7] He attended Wheaton College, graduating in 1998 with a Bachelor of Arts summa cum laude.[7] He then attended the University of Chicago Law School, where he was an articles editor for the University of Chicago Law Review.[8] He graduated in 2001 with a Juris Doctor with high honors and Order of the Coif membership.[8]
Career
After graduating from law school, Mitchell clerked for Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit and for Justice Antonin Scalia of the Supreme Court of the United States.[1] After clerking, Mitchell served as an attorney-adviser in the Office of Legal Counsel of the United States Department of Justice.[9]
After leaving the Department of Justice in 2006, Mitchell was a visiting assistant professor at the University of Chicago Law School from 2006 to 2008.[1] He then served as an assistant professor of law at the George Mason University School of Law before his appointment as Solicitor General of Texas in 2010.[1] After leaving the Texas Solicitor General's office in 2015, Mitchell served on the faculty of the University of Texas School of Law, before joining the Hoover Institution as a visiting fellow from 2015 to 2016.[1] Mitchell also served as a visiting professor of law at Stanford Law School before opening his own law firm in 2018.[1][9][10]
Mitchell has published scholarship on textualism, national-security law, criminal law and procedure, judicial review, judicial federalism, and the legality of stare decisis in constitutional adjudication.[1][11]
ACUS nomination
In 2017, President Donald J. Trump nominated Mitchell to chair the Administrative Conference of the United States (ACUS).[9] Mitchell’s nomination was voted out of committee, but never received a vote on the Senate floor.[12]
Supreme Court practice
Mitchell has argued five times before the Supreme Court of the United States and authored the principal merits brief in eight Supreme Court cases.[1] Mitchell has also written amicus curiae briefs in the Supreme Court. In Dobbs v. Jackson Women's Health Organization, Mitchell and a colleague urged the Supreme Court to overrule Roe v. Wade, arguing that overturning Roe should eventually lead to the reversal of other "lawless" court decisions such as those establishing a right to same-sex marriage (Obergefell v. Hodges), while distinguishing and defending the right to interracial marriage recognized in Loving v. Virginia.[13] [14]
Mitchell also submitted an amicus brief in Students for Fair Admissions v. President and Fellows of Harvard College, which urges the Supreme Court to declare race-based affirmative action unlawful under Title VI of the Civil Rights Act of 1964, without reaching the "much closer question" concerning the constitutionality of affirmative action under the Equal Protection Clause.[15][16]
Senate Bill 8
In 2021, the Texas legislature enacted the Texas Heartbeat Act or Senate Bill 8 (SB 8), which bans abortion at approximately six weeks of pregnancy and includes an unusual enforcement mechanism designed to insulate the law from judicial review. Rather than allowing state officials to enforce the ban, the statute authorizes private citizens to sue anyone who performs or assists a post-heartbeat abortion, while forbidding the state and its officers to enforce the law in any way.[17] By designing the statute in this manner, the legislature sought to make it difficult for abortion providers to challenge SB 8 in pre-enforcement lawsuits.[18]
On September 1, 2021, the Supreme Court of the United States refused to enjoin the enforcement of SB 8 on account of the “complex and novel antecedent procedural questions” presented by this enforcement mechanism.[6] The courts eventually ruled that abortion providers could not challenge the constitutionality of SB 8 in pre-enforcement lawsuits; they must instead wait to be sued in state court by a private individual and assert their constitutional claims as a defense in those state-court proceedings.[19][20] News outlets reported that Mitchell designed the enforcement mechanism that allowed SB 8 to evade judicial review and outlaw abortion in Texas despite the statute’s incompatibility with Roe v. Wade.[4][5]
SB 8's efforts to stymie judicial review have been a matter of intense controversy.[21] Supreme Court Justice Sonia Sotomayor denounced the statute as “a breathtaking act of defiance” that hinders the judiciary from counteracting a “flagrantly unconstitutional law”,[6] while anti-abortion commentators have praised the statute for its novel design and its successful circumvention of Roe v. Wade.[22] The success of SB 8 was a major blow to Roe v. Wade, as it enabled other states to ban abortion and evade judicial review by copying the statute's novel enforcement mechanism.[23][24]
Publications
- The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 934 (2018).
- Textualism and the Fourteenth Amendment, 69 Stan. L. Rev. 1237 (2017).
- Remembering the Boss, 84 U. Chi. L. Rev. 2291 (2017).
- Commentary, Capital Punishment and the Courts, 120 Harv. L. Rev. Forum 269 (2017).
- Judicial Review and the Future of Federalism, 49 Ariz. St. L. J. 1091 (2017).
- Stare Decisis and Constitutional Text, 110 Mich. L. Rev. 1 (2011).
- Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance, 77 U. Chi. L. Rev. 1335 (2010).
- Legislating Clear-Statement Regimes in National-Security Law, 43 Ga. L. Rev. 1059 (2009).
- Apprendi’s Domain, 2006 Sup. Ct. Rev. 297.
See also
References
- 1 2 3 4 5 6 7 8 9 "United States Senate Committee on the Judiciary: Questionnaire for Non-Judicial Nominees: Jonathan Franklin Mitchell" (PDF). Senate Judiciary Committee. May 31, 2018.
- ↑ Cruse, Don (December 10, 2010). "Texas' new Solicitor General: Jonathan Mitchell". The Supreme Court of Texas Blog. Retrieved 17 October 2017.
- ↑ McGaughy, Lauren (July 3, 2022). "After Roe, architect of Texas abortion law sets sights on gay marriage and more". Dallas Morning News. Retrieved August 7, 2022.
- 1 2 Gershman, Jacob (September 4, 2021). "Behind Texas Abortion Law, an Attorney's Unusual Enforcement Idea". The Wall Street Journal. Retrieved September 5, 2021.
- 1 2 Marimow, Ann; Zapatosky, Matt; Kitchener, Caroline (September 2, 2021). "Texas abortion ban based on unsual legal strategy". The Washington Post. Retrieved September 12, 2021.
- 1 2 3 "Whole Woman's Health, et al. v. Austin Reeve Jackson, Judge, et al., No. 21A24" (PDF). www.supremecourt.gov. September 1, 2021. Retrieved November 9, 2021.
- 1 2 3 Schmidt, Michael S. (2021-09-12). "Behind the Texas Abortion Law, a Persevering Conservative Lawyer". The New York Times. ISSN 0362-4331. Retrieved 2021-09-12.
- 1 2 "Jonathan F. Mitchell, '01: To be Nominated as Chairman of the Administrative Conference of the United States | University of Chicago Law School". www.law.uchicago.edu.
- 1 2 3 "President Donald J. Trump Announces Intent to Nominate Personnel to Key Administration Posts". whitehouse.gov. September 2, 2017. Retrieved 13 October 2017 – via National Archives. This article incorporates text from this source, which is in the public domain.
- ↑ Whisenant, Anna Lee; Ramirez, Stefanie; Madigan, Sarah (September 8, 2017). "The Regulatory Week in Review: September 8, 2017". The Regulatory Review. Retrieved 17 October 2017.
- ↑ "Jonathan Mitchell". Retrieved July 21, 2022.
- ↑ "PN931 — Jonathan F. Mitchell — Administrative Conference of the United States". 4 January 2019. Retrieved June 19, 2022.
- ↑ "Dobbs v. Jackson Women's Health Organization, No. 19-1392, Brief of Texas Right to Life as Amicus Curiae in Support of the Petitioners" (PDF). July 29, 2021. Retrieved October 30, 2021.
- ↑ Gersen, Jeannie Suk, The Conservative Who Wants to Bring Down the Supreme Court, The New Yorker, January 5, 2023
- ↑ Liptak, Adam (May 23, 2022). "A Conservative Lawyer's New Target After Abortion: Affirmative Action". The New York Times. Retrieved June 19, 2022.
- ↑ "Students for Fair Admissions v. President and Fellows of Harvard College, No. 20-1199, Brief of America First Legal as Amicus Curiae in Support of Neither Party" (PDF). May 9, 2022. Retrieved June 19, 2022.
- ↑ Tavernise, Sabrina (2021-07-09). "Citizens, Not the State, Will Enforce New Abortion Law in Texas". The New York Times. Retrieved 2021-11-09.
- ↑ Marcus, Ruth (September 2, 2021). "Opinion: The Supreme Court aids and abets Texas in violating women's constitutional rights". The Washington Post. Retrieved June 18, 2022.
- ↑ Zernike, Kate; Liptak, Adam (March 11, 2022). "Texas Supreme Court Shuts Down Final Challenge to Abortion Law". The New York Times. Retrieved April 7, 2021.
- ↑ "Whole Woman's Health v. Jackson, No. 21-463" (PDF). supremecourt.gov. December 10, 2021. Retrieved December 26, 2021.
- ↑ Milhiser, Ian (September 2, 2021). "The staggering implications of the Supreme Court's Texas anti-abortion ruling". Vox. Retrieved June 18, 2022.
- ↑ Severino, Roger (September 2, 2021). "Texas's Absolutely Genius Victory for Life". National Review. Retrieved November 9, 2021.
- ↑ Vander Ploeg, Luke (May 25, 2022). "Oklahoma Governor Signs Bill That Bans Most Abortions". New York Times. Retrieved May 25, 2022.
- ↑ Paulsen, Stephen (July 30, 2022). "The legal loophole that helped end abortion rights". Courthouse News Service. Retrieved August 7, 2022.