Jonathan F. Mitchell

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Jonathan F. Mitchell's voice
Jonathan F. Mitchell's opening statements to the Supreme Court in United States v. Texas
Recorded November 1, 2021
Jonathan F. Mitchell
Solicitor General of Texas
In office
December 10, 2010 –January 5, 2015

Jonathan Franklin Mitchell (born September 2, 1976) [1] is an American lawyer, academic, and legal theorist [2] [3] who served as the Solicitor General of Texas from 2010 [4] to 2015. He has argued seven cases before the Supreme Court of the United States. [5] Mitchell 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. [6]

Contents

Mitchell devised 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. [7] [8] 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 . [9]

Early life and education

Mitchell was born and raised in Pennsylvania and is the oldest of seven brothers. [10] He attended the University of Chicago Law School, where he was an articles editor for the University of Chicago Law Review . [11] He graduated in 2001 with a Juris Doctor with high honors and Order of the Coif membership. [12]

Career

After graduating from law school, Mitchell worked as a law clerk for Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit from 2001 to 2002 and for Supreme Court justice Antonin Scalia from 2002 to 2003. [1] After clerking, Mitchell became an attorney-adviser in the Office of Legal Counsel of the United States Department of Justice, where he worked from 2003 through 2006. [13]

After leaving the Department of Justice, Mitchell served as a visiting professor at the University of Chicago Law School from 2006 to 2008. [1] He then worked as a professor at the George Mason University School of Law (now Antonin Scalia Law School) until his appointment as Solicitor General of Texas in 2010. [1] After leaving the Texas Solicitor General's office in 2015, Mitchell served as the Searle Visiting Professor of Law at the University of Texas School of Law, before joining the Hoover Institution as a visiting fellow in 2015. [1] Mitchell also served as a visiting professor of law at Stanford Law School before opening his own law firm in 2018. [1] [13] [14]

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] [15]

ACUS nomination

In 2017, President Donald J. Trump nominated Mitchell to chair the Administrative Conference of the United States (ACUS). [13] Mitchell’s nomination was voted out of committee, but never received a vote on the Senate floor. [16]

Supreme Court practice

Mitchell has argued seven times before the Supreme Court of the United States [5] and authored the principal merits brief in ten Supreme Court cases.

Mitchell has also written and submitted more than 20 amicus curiae briefs in the Supreme Court. In Dobbs v. Jackson Women's Health Organization , Mitchell and Adam K. Mortara urged the Supreme Court to overrule Roe v. Wade , and their brief argued that overturning Roe should undermine and eventually lead to the reversal of other "lawless" court decisions such as Obergefell v. Hodges , which created a right to same-sex marriage. At the same time, Mitchell and Mortara distinguished and defended the right to interracial marriage recognized in Loving v. Virginia , and argued that the federal right to interracial marriage should be grounded in congressional statutes such as the Civil Rights Act of 1866 rather than court-created substantive-due-process doctrines. [17] [18]

Mitchell also submitted an amicus brief in Students for Fair Admissions v. President and Fellows of Harvard College , which urged the Supreme Court to declare race-based affirmative action unlawful solely 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. [19] [20]

On February 8th 2024, Mitchell represented former president Donald J. Trump before the Supreme Court in Trump v. Anderson , [21] and urged the Court to reverse the Colorado Supreme Court's decision that declared Trump ineligible for the presidency under Section 3 of the 14th Amendment. [22] In an unsigned per curiam opinion issued March 4, 2024, the Court unanimously ruled in favor of former President Trump, holding that Congress has the exclusive ability to enforce Section 3 of the Fourteenth Amendment. [23] [24]

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. [25] By designing the statute in this manner, the legislature sought to make it impossible for abortion providers to challenge SB 8 in pre-enforcement lawsuits. [26]

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. [9] 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. [27] [28] 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 . [7] [8]

SB 8's efforts to stymie judicial review have been a matter of intense controversy. [29] Supreme Court Justice Sonia Sotomayor denounced the statute as “a breathtaking act of defiance” that hinders the judiciary from counteracting a “flagrantly unconstitutional law”, [9] while anti-abortion commentators have praised the statute for its novel design and its successful circumvention of Roe v. Wade . [30] 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. [31] [32]

Publications

See also

Related Research Articles

Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States generally protected a right to have an abortion. The decision struck down many abortion laws, and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication.

Lawrence v. Texas, 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that sanctions including any form of criminal punishment to all forms of private, consensual non-procreative adult sexual activities between two individuals are unconstitutional. The Court reaffirmed the concept of a "right to privacy" that earlier cases had found the U.S. Constitution provides, even though it is not explicitly enumerated. It based its ruling on the notions of personal autonomy to define one's own relationships and of American traditions of non-interference with any or all forms of private sexual activities between consenting adults.

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A trigger law is a law that is unenforceable but may achieve enforceability if a key change in circumstances occurs.

<span class="mw-page-title-main">Abortion law in the United States by state</span> Termination of pregnancy in states of the United States

The legality of abortion in the United States and the various restrictions imposed on the procedure vary significantly depending on the laws of each state or other jurisdiction. Some states prohibit abortion at all stages of pregnancy with few exceptions, others permit it up to a certain point in a woman's pregnancy, while others allow abortion throughout a woman's pregnancy. In states where abortion is legal, several classes of restrictions on the procedure may exist, such as parental consent or notification laws, requirements that patients be shown an ultrasound before obtaining an abortion, mandatory waiting periods, and counseling requirements.

A six-week abortion ban, also called a "fetal heartbeat bill" by proponents, is a law in the United States which makes abortion illegal as early as six weeks gestational age, which is when proponents claim that a "fetal heartbeat" can be detected. Medical and reproductive health experts, including the American Medical Association and the American College of Obstetricians and Gynecologists, say that the reference to a fetal heartbeat is medically inaccurate and misleading because a conceptus is not called a fetus until eight weeks after fertilization, as well as that at four weeks after fertilization, the embryo has no heart, only a group of cells which will become a heart. Medical professionals advise that a true fetal heartbeat cannot be detected until around 17 to 20 weeks of gestation when the chambers of the heart have become sufficiently developed.

Abortion in Oklahoma is illegal unless the abortion is necessary to save the life of a pregnant woman.

Abortion in Texas is illegal in most cases. There are exceptions to save the mother's life, or prevent substantial impairment of major bodily function, but the law on abortion in Texas is written in such an ambiguous way that it is unclear to physicians what health harms to the mother constitute an exception. This has prompted expecting mothers with health complications to leave the state or forced them to give birth while jeopardizing their health. The legal status of abortion in Texas is due to a trigger law passed in July 2021 that came in effect on August 25, 2022, as a consequence of the U.S. Supreme Court's 2022 decision Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade. The law makes no exception for pregnancies resulting from rape or incest.

Abortion in Connecticut is legal up to the point of fetal viability, or after that if necessary to preserve the life or health of the pregnant woman. A poll by the Pew Research Center found that 67 percent of adults in the state believed that abortion should be legal in all or most cases. Abortions took place early in the state's history. People at that time talked about abortions using euphemisms. The death of Sarah Grosvenor following unsuccessful abortion resulted in a prosecution in colonial Connecticut. Connecticut became the first state to criminalize abortion after codifying its common law in 1821. Later, such laws were justified as trying to protect the life of the women from bad actors providing unsafe abortion services. The state was one of ten states in 2007 to have a customary informed consent provision for abortions. In 1965, the US Supreme Court heard the case of Griswold v. Connecticut, striking down laws that banned the sale, use of and prescription of contraceptives, even for married couples. The Court's later decision in 1973's Roe v. Wade ruling meant the state could no longer regulate abortion in the first trimester. In 1990, state law was amended to read, "the decision to terminate a pregnancy prior to the viability of the fetus shall be solely that of the pregnant woman in consultation with her physician", the first such law in state codifying the Court's holding in Roe, as it would be later modified by Planned Parenthood v. Casey.

Abortion in Idaho is illegal from fertilization. Following the overturning of Roe v. Wade on June 24, 2022, abortion in Idaho was criminalized by the trigger law which states that a person who performs an abortion may face two to five years of imprisonment. The ban allows exceptions for maternal health, rape and incest within the first trimester. The law took effect on August 25, 2022.

Abortion in Nevada is legal up to the 24th week of pregnancy, under the Nevada Revised Statutes chapter 442, section 250; and after 24 weeks if the pregnancy could be fatal for the pregnant woman. 62% of adults said in a poll by the Pew Research Center that abortion should be legal while 34% said it should by illegal in all or most cases. Legislation by 2007 required informed consent. Attempts were successfully made to pass abortion legislation in May 2019, being pushed through a largely Democratic controlled state legislature. The number of abortion clinics in Nevada has declined over the years, with 25 in 1982, seventeen in 1992 and thirteen in 2014. There were 8,132 legal abortions in 2014, and 7,116 in 2015. Due to the high level of support for abortion rights, continued access to abortion is supported by all parties, including the Republicans.

Abortion in Utah is legally performed under a temporary restraining order blocking enforcement of the state's trigger law, which bans abortion. According to HB136, which is effective state law from June 28, 2022, abortions are banned following 18 weeks of gestation. Abortion was banned following the Supreme Court case, Dobbs v. Jackson Women's Health Organization on June 24, 2022. Utah State Legislation enacted SB 174 in May 2020, which, upon the overturn of Roe v. Wade, made inducing an abortion a second-degree felony. The law includes exceptions for pregnancies "caused by rape or incest," pregnancies that put the mother's life at risk, or "if two doctors say the fetus has a lethal defect." Rape and incest exceptions will only be viable if the crimes were previously reported to law enforcement officials.

Box v. Planned Parenthood of Indiana and Kentucky, Inc., No. 18-483, 587 U.S. ___, 139 S.Ct. 1780 (2019), was a United States Supreme Court case dealing with the constitutionality of a 2016 anti-abortion law passed in the state of Indiana. Indiana's law sought to ban abortions performed solely on the basis of the fetus' gender, race, ethnicity, or disabilities. Lower courts had blocked enforcement of the law for violating a woman's right to abortion under privacy concerns within the Fourteenth Amendment, as previously found in the landmark cases Roe v. Wade and Planned Parenthood v. Casey. The lower courts also blocked enforcement of another portion of the law that required the disposal of aborted fetuses through burial or cremation. The per curiam decision by the Supreme Court overturned the injunction on the fetal disposal portion of the law, but otherwise did not challenge or confirm the lower courts' ruling on the non-discrimination clauses, leaving these in place.

Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. 215 (2022), is a landmark decision of the U.S. Supreme Court in which the court held that the Constitution of the United States does not confer a right to abortion. The court's decision overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), returning to individual states the power to regulate any aspect of abortion not protected by federal statutory law.

<span class="mw-page-title-main">Texas Heartbeat Act</span> 2021 Act of the Texas Legislature on abortion

The Texas Heartbeat Act, Senate Bill 8, is an act of the Texas Legislature that bans abortion after the detection of embryonic or fetal cardiac activity, which normally occurs after about six weeks of pregnancy. The law took effect on September 1, 2021, after the U.S. Supreme Court denied a request for emergency relief from Texas abortion providers. It was the first time a state has successfully imposed a six-week abortion ban since Roe v. Wade, and the first abortion restriction to rely solely on enforcement by private individuals through civil lawsuits, rather than having state officials enforce the law with criminal or civil penalties. The act authorizes members of the public to sue anyone who performs or facilitates an illegal abortion for a minimum of $10,000 in statutory damages per abortion, plus court costs and attorneys' fees.

Whole Woman's Health v. Jackson, 595 U.S. ___ (2021), was a United States Supreme Court case brought by Texas abortion providers and abortion rights advocates that challenged the constitutionality of the Texas Heartbeat Act, a law that outlaws abortions after six weeks. The Texas Heartbeat Act prohibits state officials from enforcing the ban but authorizes private individuals to enforce the law by suing anyone who performs, aids, or abets an abortion after six weeks. The law was structured this way to evade pre-enforcement judicial review because lawsuits challenging the constitutionality of state statutes are typically brought against state officials who are charged with enforcing the law, as the state itself cannot be sued under the doctrine of sovereign immunity.

United States v. Texas, 595 U.S. ___ (2021), was a United States Supreme Court case that involved the Texas Heartbeat Act, also known as Senate Bill 8 or SB8, a state law that bans abortion once a "fetal heartbeat" is detected, typically six weeks into pregnancy. A unique feature of the Act, and challenges to it, is the delegation of enforcement to any and all private individuals who are authorized by the Act to file civil actions against abortion providers who violate it, and aiders and abetters, while state and local officials are prohibited from doing so. Opponents stated that the Act went against the landmark 1973 Supreme Court decision Roe v. Wade, which, prior to its overturn in 2022, banned states from prohibiting abortions during the first trimester of pregnancy in favor of the woman's right to privacy guaranteed by the Fourteenth Amendment.

References

  1. 1 2 3 4 5 6 7 8 "United States Senate Committee on the Judiciary: Questionnaire for Non-Judicial Nominees: Jonathan Franklin Mitchell" (PDF). Senate Judiciary Committee. May 31, 2018.
  2. ↑ Orden, Erica (February 7, 2024). "Meet the lawyers arguing the Trump ballot case at the Supreme Court". Politico . Retrieved March 19, 2024.
  3. ↑ Baio, Ariana (February 9, 2024). "Who is Jonathan Mitchell? The conservative lawyer arguing for Trump at Supreme Court" . Retrieved March 12, 2024.
  4. ↑ Cruse, Don (December 10, 2010). "Texas' new Solicitor General: Jonathan Mitchell". The Supreme Court of Texas Blog. Retrieved 17 October 2017.
  5. 1 2 "Jonathan F. Mitchell". Oyez Project . Retrieved February 29, 2024.
  6. ↑ 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.
  7. 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.
  8. 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.[ failed verification ]
  9. 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.
  10. ↑ 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.
  11. ↑ "The University of Chicago Law Review Volume 68 Masthead" (PDF). Retrieved March 28, 2022.
  12. ↑ "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.
  13. 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.PD-icon.svg This article incorporates text from this source, which is in the public domain .
  14. ↑ 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.
  15. ↑ "Jonathan Mitchell" . Retrieved July 21, 2022.
  16. ↑ "PN931 — Jonathan F. Mitchell — Administrative Conference of the United States". 4 January 2019. Retrieved June 19, 2022.
  17. ↑ "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.
  18. ↑ Gersen, Jeannie Suk, The Conservative Who Wants to Bring Down the Supreme Court , The New Yorker, January 5, 2023
  19. ↑ Liptak, Adam (May 23, 2022). "A Conservative Lawyer's New Target After Abortion: Affirmative Action". The New York Times. Retrieved June 19, 2022.
  20. ↑ "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.
  21. ↑ "Trump v. Anderson". Oyez Project . Retrieved March 25, 2024.
  22. ↑ Gerstein, Josh (February 9, 2024). "A very un-Trumpy performance delivers for Trump at Supreme Court". Politico . Retrieved February 9, 2024.
  23. ↑ Mangan, Dan (March 4, 2024). "Supreme Court puts Trump back on Colorado Republican primary ballot". CNBC. Retrieved March 4, 2024.
  24. ↑ Sherman, Mark (March 4, 2024). "Supreme Court restores Trump to ballot, rejecting state attempts to ban him over Capitol attack". Associated Press. Retrieved March 4, 2024.
  25. ↑ Tavernise, Sabrina (2021-07-09). "Citizens, Not the State, Will Enforce New Abortion Law in Texas". The New York Times. Retrieved 2021-11-09.
  26. ↑ 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.
  27. ↑ 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.
  28. ↑ "Whole Woman's Health v. Jackson, No. 21-463" (PDF). supremecourt.gov. December 10, 2021. Retrieved December 26, 2021.
  29. ↑ Milhiser, Ian (September 2, 2021). "The staggering implications of the Supreme Court's Texas anti-abortion ruling". Vox. Retrieved June 18, 2022.
  30. ↑ Severino, Roger (September 2, 2021). "Texas's Absolutely Genius Victory for Life". National Review . Retrieved November 9, 2021.
  31. ↑ Vander Ploeg, Luke (May 25, 2022). "Oklahoma Governor Signs Bill That Bans Most Abortions". New York Times . Retrieved May 25, 2022.
  32. ↑ Paulsen, Stephen (July 30, 2022). "The legal loophole that helped end abortion rights". Courthouse News Service . Retrieved August 7, 2022.
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2010–2015		Succeeded by
Scott A. Keller
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