Jonathan Mitchell, a Prominent Anti-Abortion Lawyer, on Restraining the Power of the Supreme Court
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Listener supported. WNYC Studios. This is the New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. This is the New Yorker Radio Hour. I'm David Remnick. In recent years, Jonathan Mitchell has become a crucial figure in the anti-abortion movement.

He was the architect of Texas's SB-8 legislation, which allows individuals to sue other people for helping to facilitate an abortion, acts like driving a patient to an appointment. The law was novel in how it protected itself from review by the Supreme Court.

And some of its opponents have called it state-sponsored vigilantism. Today's ruling by the five most conservative justices on the court, the Texas law known as SB 8, which has effectively banned almost all abortions in the state for 101 days, can remain in effect for now. SB 8 empowers private citizens, not government officials, to enforce the abortion ban by bringing private lawsuits.

Jonathan Mitchell, who conceived SBA, is now representing a man seeking millions of dollars in civil damages from friends of his ex-wife, who helped her access abortion medication. The women named in the case have countersued. But despite his conservatism and his role in anti-abortion politics, Mitchell has something in common with legal thinkers on the left, a critique of the Supreme Court and its extraordinary powers.

And he has ideas about how to chip some of that power away. Mitchell rarely gives interviews, but he agreed to speak with The New Yorker's legal correspondent, Jeanne Sook Gerson. Jeanne is a professor at Harvard Law School and clerk for Justice David Souter on the Supreme Court. Jonathan, you are perhaps best known now as the architect of SB8. Can you tell us how you got involved in crafting that legislation?

I had a longstanding relationship with Senator Brian Hughes, who was the Senate author of the Texas Heartbeat Act. And I've advised him on legislation for years, long before we started working on SB8 together. And we always talk before the beginning of a state legislative session about what he's hoping to accomplish legislatively and what some of my other clients in the state legislature want to do.

And they had decided very early on after the 2020 election that they wanted to enact something similar to a ban on abortion after fetal heartbeat, which was similar to what had been passed in other states. But all those other laws that other states had enacted had been tied up in court in response to court challenges from abortion providers. So Senator Hughes asked me if there was a way to craft a ban on abortion after six weeks of pregnancy or so.

in a way that could possibly withstand a court challenge. And I told them there was a way it could be done, but it had to be drafted very carefully, and it would have to be done in a way that would essentially take state officials out of any enforcement role. So there wouldn't be a way for abortion providers to bring a pre-enforcement challenge to the statute. This was before the Dobbs decision, when Roe was still in effect. That's right. Long before Dobbs. Long before Dobbs.

If any of you have watched The Handmaid's Tale or read the book, that's unfortunately where we're living today in Texas. We don't have safe, affordable, accessible abortion rights. Abortion providers say that there are many times in a pregnancy that women don't even know that they're pregnant at six weeks. SBA was seen by many people as...

cleverly or dangerously, depending on your point of view, evading the Supreme Court's decision in Roe v. Wade. Could you explain how SBA worked to do that? Yeah, so it's interesting you say the decision in Roe v. Wade because so much depends on what you mean by decision.

The Texas Heartbeat Act never did anything to evade the actual judgment in Roe in the sense that it did not alter or undercut the decision the Supreme Court rendered between the parties to that litigation. But it certainly undercut the opinion in Roe. And for people who believe in judicial supremacy, that's a widely held belief in our legal culture. It's also widely held in the political culture and certainly in the news media.

So just to pause for a moment, judicial supremacy is the idea that the Supreme Court is the ultimate authority on what the Constitution means. And so when the Supreme Court says something, then that is tantamount to the constitutional meaning. So...

People who respond to SB8 and view it as a dangerous or subversive tactic are typically those who believe in judicial supremacy because you're absolutely right to say that the Texas Heartbeat Act and the way it was drafted –

undercut the efficacy of the Roe against Wade opinion. But not everyone believes in judicial supremacy. Judicial supremacy is not written into the Constitution. It's a position that has been asserted by the Supreme Court, but it's not in the Constitution itself and it certainly hasn't been accepted by everyone throughout our nation's history. Many prominent individuals have rejected judicial supremacy, probably most famously as Abraham Lincoln, in response to the Dred Scott decision.

And it's almost reached the point where people treat judicial supremacy as axiomatic. Certainly, judges, I think, treat it as axiomatic. Justice Sotomayor in her dissents in the Texas Heartbeat Act litigation treated it as axiomatic. Chief Justice Roberts in his dissents, I think, also treated it as axiomatic. They treated it as something you could just take for granted and you didn't even need to acknowledge that this was a choice you were making, let alone a choice that needed to be defended.

But what I really want to do is change the habit of thinking where people can just walk into a debate over constitutional law and act as though judicial supremacy is, of course, the way everybody thinks. And we don't even need to acknowledge that this is something that needs to be defended from the outset. Why do you want to undermine judicial supremacy? Because it's not in the Constitution. Why should it be the Supreme Court and not Congress? Why should it be the Supreme Court and not

a state legislature that might have a different view on what the Constitution means. And what was nice about the Texas Heartbeat Act was it was able to show, I think, not just the Supreme Court, but everyone, how a state can structure its laws in a way that can render a constitutional pronouncement of the Supreme Court effectively nugatory, because the state can show that it has its own view of the Constitution that differs from the Supreme Court, and

And it's crafted its laws in a way that makes it impossible for the federal judiciary to come in and superimpose its preferred interpretation of the Constitution over that of the state. Once a state shows that that can be done,

Then judicial supremacy becomes something that can be worked around by using this type of tactic. And there are other workarounds to judicial supremacy as well. It's not just what the state of Texas did with respect to the Heartbeat Act. Congress can get around judicial supremacy. So there's been a lot of talk recently, especially among progressives and people on the left, about ways to check the powers of the Supreme Court. And they propose ideas like court packing. But –

Why aren't they discussing ideas such as jurisdiction stripping, which has long been an accepted part of the constitutional arsenal? But for reasons that are beyond my comprehension, Congress has not been willing to wield this weapon or even threaten to use it as a way of checking judicial power or as a way of counteracting decisions that they think are misinterpreting the Constitution. That kind of talk, that kind of idea reminds a lot of people of

about what happened after Brown v. Board of Education when the court had declared that segregation was unconstitutional, and then Southern segregationists wanted to circumvent the Supreme Court or wanted to push back on the Supreme Court's interpretation of the 14th Amendment. And so what we saw was resistance to the Supreme Court decision, and that's what a lot of people think about

So, what do you have to say to people who are concerned about that history, and especially since I think Justice Sotomayor condemned your argument, saying that you were echoing the philosophy of John C. Calhoun, who insisted that Southern states had the right to veto or nullify federal policy that they disagreed with. What is your response to all of that? Well, Calhoun was asserting a prerogative to nullify congressional legislation.

And I am in no way asserting that type of prerogative for a state, nor would I defend it, nor do I think that is constitutional. Because Article VI of the Constitution specifically says that the Constitution is the supreme law of the land, and so are the acts of Congress that are made in pursuance thereof.

Article 6 does not say that Supreme Court opinions are the supreme law of the land. So there's a very important distinction to draw between congressional legislation on the one hand, which Calhoun was asserting a prerogative to subvert, and opinions of the Supreme Court on the other. Second point is any tool can be misused. You can use a power or a prerogative for good or for evil.

When the wrong people come to power, they may misuse that or use it for an end that is morally abhorrent or bad or it's a matter of policy. And when that happens, we should resist that. We should criticize it. But it doesn't necessarily mean that the tactic itself is illegitimate. Good tactics and lawful tactics can be used for politically nefarious ends or for morally abhorrent ends. That's true of the Supreme Court. It's true of the states. It's true of Congress. It's true of every one of our institutions of government.

When it comes to which position is ultimately correct as a matter of what the Constitution says, the Constitution is simply silent on which institution of our government gets the final word on what the Constitution means. For example –

Congress came along and passed the Civil Rights Act of 1964, which abolishes racial segregation in any institution that receives federal funds, including public schools. So Congress came along, backed up the Supreme Court, and put a stop to the resistance. Eisenhower sent troops into Arkansas to put a stop to the resistance. I have today issued an executive order directing the use of troops under federal authority

to aid in the execution of federal law at Little Rock, Arkansas. All the other branches of government stepped up, backed the Supreme Court's decision in Brown, and made sure the southern states that tried to resist were eventually squelched and the efforts failed at the end. That didn't happen with Roe v. Wade.

There were Democrats in Congress who tried to pass legislation in response to the Texas Heartbeat Act that would preempt it, the Women's Health Protection Act. It passed the House. It didn't pass the Senate. If that statute had passed, of course, the Texas Heartbeat Act would be preempted and it wouldn't be in effect today. So there are other ways to push back against states that are abusing this prerogative. In no way am I suggesting that the state of Texas has the final word on what the Constitution means.

All I'm saying is the Supreme Court is subject to checks and balances, just like the other institutions of government. And the state of Texas is subject to checks and balances in the same way that it can check the Supreme Court with a tactic like SB-8 and the Texas Heartbeat Act. You are now representing a client bringing a wrongful death suit in Texas. And your client is suing friends of his former wife for helping her access medication for an abortion. And he's seeking more than a million dollars in damages. Do these...

anti-abortion laws enable legal action as a form of harassment? I don't think they do. There's protections in the law against harassing lawsuits. If you file something for an illegitimate purpose, you can get sanctioned, not just the client, but also the lawyer. In this situation, I don't think it's fair to say he's trying to control his ex-wife. She's already divorced him. And he's also not seeking any type of prospective relief like an injunction. This is simply a backward-looking lawsuit over something that's already happened in the past. And he's not even suing his ex-wife. She's not a party to the case, and she can't be sued under Texas law.

The question is whether Texas law provides for legal relief for the death of an unborn child in the way that it would provide for legal relief from the death of a baby. And Texas has written its laws in a way that makes the killing of a fetus or an unborn child no different from the killing of a baby or a newborn infant. The only difference, though, is that you can't sue or prosecute the pregnant woman in

who had the abortion. You could, of course, sue a mother of a child who kills a newborn infant. So no lawsuits like this were ever brought prior to Dobbs because Roe against Wade would say this is a constitutionally protected right and they would throw the case out of court. With the overruling of Roe, these types of lawsuits will become more prevalent, not just in Texas but any other state that either bans abortion or that recognizes the unborn child as a person from the moment of conception. For example,

You may have situations where the criminal law of a state is not being enforced by a local district attorney. And we've seen many examples in red states where the abortion clinics are located in democratic-controlled cities and the district attorney in Austin or Houston or Dallas will just say, look, I'm never going to bring any criminal charges against this law.

We're going to declare our city essentially a sanctuary for abortion. We won't bring criminal charges against anybody who violates these criminal laws. So come on into our city and have at it. In those type of situations, private civil enforcement can be a way of getting around prosecutors who for political reasons just won't bring enforcement actions or criminal prosecutions.

For many people who are anti-abortion, they would like to see the Supreme Court go further than they did in Dobbs and assert a right to life, a right to fetal life, starting at conception. What do you think of that? Does the court have that power?

I don't see any textual support for that in the current version of the Constitution that we have. If they succeed in passing a constitutional amendment to create a fetal right to life, it would be a different story. But right now, if you look at the 14th Amendment and the use of the word person, I'll just give one example. The way seats are currently apportioned in the House of Representatives, it's done according to persons, excluding Indians not taxed. That's what it says in Section 2 of the 14th Amendment.

We've never counted unborn children or fetuses or embryos as persons when we allocate seats in the House of Representatives. So the settled understanding of the word person in the Constitution right now seems to be that you only are talking about people who have already been born and not those who have yet to be born. That's a major hurdle I think for anyone who's trying to push a fetal personhood argument under our current version of the 14th Amendment.

Textualism is a theory of interpretation in which you focus on the plain meaning of the words of a legal document. So Jonathan, some people think that textualism undermines decades of progress on issues like women's rights or gay rights. What do you say to that? The Supreme Court's not the only institution that can protect those rights.

And if we look at the response to Dobbs, we've seen state legislatures throughout the country take swift and decisive action to buttress access to abortion in a way that goes far beyond what Roe v. Wade ever established. And in a way, I think Dobbs galvanized some of these blue states into action.

in order to further advance the cause of abortion rights. You also see that on same-sex marriage. Many states have on their own initiative passed legislation to codify same-sex marriage into law in a way that ensures that it won't be reversed. Congress itself passed a statute just last year that guarantees the right to interstate recognition of same-sex marriage.

I think you're right, Jeannie, to point to discrete examples like Roe v. Wade and Obergefell and maybe Brown v. Board of Education where the Supreme Court has acted boldly to advance the progressive agenda. But the Supreme Court has also done a lot to hinder the progressive agenda, and the political branches have done a whole lot more in these areas than the Supreme Court has.

I do think many people on the left still believe in judicial supremacy. I don't think they should, but they do. And they probably would not want to embrace this tactic until the Supreme Court becomes so conservative that they lose faith in judicial supremacy itself. And I don't think we've reached that point yet. The attorney Jonathan Mitchell speaking with The New Yorker's Jeanne Sook Gerson. I'm David Remnick, and that's our program for today. Thanks for listening. I hope you'll join us next time.

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