The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Genius v. SCOTUS

We are living in Jonathan Mitchell's world. And the judicial supremacists can't stand it.


In 2008, I took Jonathan Mitchell's seminar on habeas corpus at George Mason. It was, without question, the hardest class of my law school career. The questions he posed in class were devastating. He had such a commanding understanding of every nuance of AEDPA. No matter which way I turned, Mitchell would flip the question. Indeed, he would anticipate every twist and turn to foreclose possible answers to his hypotheticals. At one point, the only answer I could come up with was "well, the statute is titled the "effective death penalty act," so it should be construed to make executions more effective. Mitchell smiled, and then said that wasn't a real rule of law.

I had déjà vu during the S.B. 8 arguments yesterday. Several justices were intent on finding some way, any way to permit this suit to go forward. They conjured up creative and cute approaches that would modify longstanding doctrine. Indeed, Justice Breyer seemed most sensitive to the risks of permitting the suits. But at every turn, they were stymied by Jonathan Mitchell's brainchild. Yesterday, the Justices were in the same spot as this hapless 3L. He was ahead of them at every turn.

At one point, Justice Kagan expressed her frustration. She said that "some geniuses came up with a way to evade the commands" of Ex Parte Young. She was obviously referring to Mitchell. Justice Kavanaugh added, "there's a loophole that's been exploited here." Again, Mitchell.

Of course, the difference between a 3L and a Supreme Court justice is that a 3L cannot change the law. Us mere mortals are stuck with governing precedent. But judicial creativity, bolstered by judicial supremacy, has no limits.

We are living in Jonathan Mitchell's world. And the judicial supremacists just can't stand it.