The Volokh Conspiracy
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The New Yorker Profiles "The Conservative Who Wants to Bring Down the Supreme Court."
Jonathan Mitchell failed in his effort to become a legal academic, so he put his theories into practice instead.
The New Yorker has published a profile of Jonathan Mitchell, author of Texas' SB 8 abortion law. The article, written by Jeannie Suk-Gersen, is revealing and paints a very fair portrait of the now-infamous legal thinker and litigator. It is definitely worth a read.
A few portions of the article discuss Mitchell's efforts to become a tenured law professor, and they are quite interesting.
Adam Mortara, who describes himself as Mitchell's "best intellectual buddy and law friend," was his classmate at Chicago, where, Mortara recalled, Mitchell's dream was to join the faculty. In their third year, they both took Federal Courts with David Strauss, a leading proponent of "living constitutionalism," the idea that constitutional meaning evolves along with changing social values. Led by Scalia, conservatives had for decades railed against living constitutionalism as an undisciplined approach that allowed unelected judges to impose their preferences on the populace under the guise of constitutional interpretation. But both Mitchell and Mortara told me that they consider Strauss one of their deepest influences. Strauss showed through his rigorous scholarship that originalism did not constrain judges to the extent that it claimed to, nor was it even the original method for interpreting the Constitution. Mitchell would later suggest in print that some of Scalia's opinions "were too quick to find an original meaning in cases where the historical evidence is at best conflicting or unclear." Rather than heartily embrace originalism, as many conservatives did, the duo gravitated toward suspicion of strong judicial review under any method.
As the article notes, Mitchell was briefly a tenure-track professor at George Mason (before it had become the Scalia Law School), but left to serve as the Texas Solicitor General. When he sought to return to academia, however, he had a difficult time.
Mitchell went on the academic job market again but received very little interest. (Strauss, his former professor, said, "I think it's mostly that his scholarship was so doctrinal and kind of narrow-feeling. I think in some places it's undoubtedly because of the politics.") Meanwhile, Trump's 2016 win meant a new Republican Administration was forming, which led him to pursue a job in the White House or the Justice Department. After working on the Trump transition team as a volunteer attorney reviewing draft executive orders, he was promised a senior position in the Office of Legal Counsel. But that, too, did not pan out. "I was vetoed by somebody for some reason. I don't know what or why," Mitchell said. He was then nominated to lead the Administrative Conference of the U.S., a little-known independent agency, but, after Democrats objected to him as too partisan, the nomination languished, with no Senate vote.
Mitchell said, "I needed to figure out something else to do." In 2018, just as a conservative majority solidified on the Supreme Court, he launched a solo law practice that has been active in dozens of suits involving conservative causes. As Goldsmith put it, "Suddenly he starts doing these strange cases. I thought they were strange cases. He didn't have a ton of trial-court litigation experience. But then suddenly he's filing all manner of amazingly consequential, imaginative lawsuits"—some of them on behalf of extreme cultural conservatives.
In one case, Mitchell prevailed in federal district court on behalf of Christian employers seeking a religious exemption from Title VII, the employment-discrimination law, in order to hire and fire according to their religious beliefs about homosexuality and transgender status. In another case, he successfully argued, on behalf of a Christian corporation owned by the G.O.P. donor Steven Hotze, that the Affordable Care Act's requirement that insurance providers cover H.I.V.-prevention drugs violates the company's religious freedom. He has offered to defend Sanctuary Cities for the Unborn ordinances at no cost to the cities. (Mitchell didn't deny that interested groups or individuals have funded his work, but he refused to name them.)
Mitchell said that some of the matters he handles are ones that the big law firms "would never touch with a ten-foot pole" for fear of offending liberals. His attitude has been, "Fine, I will bring those cases." And, "if big law firms were doing this stuff, I wouldn't have any clients," he said. "In a way, I think I found a niche." Mortara noted the irony that, if law schools whose left-wing faculties are displeased with Mitchell had given him a job years ago, he would have been busy trying to get tenure. "And then none of these things would have happened."
And then there is this discussion of Mitchell and one of his former mentors, Professor David Strauss.
Last spring, Mitchell and Mortara were walking on the University of Chicago campus after a Federalist Society event. They bumped into Strauss, their Federal Courts professor, who had been kind to them and for whom they have great esteem and affection. But, as they walked away from the chance meeting, the two shared the feeling that their teacher had seemed unhappy to see them. "It was hurtful . . . and eye-opening," Mortara said. "You're fine when you're just a yappy little dog that can't bite. But, if you grow up to be a big dog that can actually do stuff, then you're probably going to be put down." Mitchell wanted to think that Strauss was just tired or having a bad day.
Strauss told me that what happened was a slight delay in recognizing the two former students, the kind that occurs "when you see people you know perfectly well, but totally unexpectedly." But, he acknowledged, "maybe I did give off some kind of negativity, even though I didn't mean to be anything other than cordial." In truth, he told me, "I feel betrayed by Jonathan." Strauss had recommended him on the job market and "spent some time telling liberals at various schools that, while Jonathan had conservative instincts, he was absolutely a straight shooter, plenty of intellectual integrity, not at all a hack," he said. But S.B. 8 reminded Strauss of what Jim Crow states did before the federal civil-rights statutes were enacted: states could not discriminate on the basis of race, but private individuals could, "so of course all the discrimination got laundered through private action."
Strauss told me, "I'm disappointed that one of the best students I've ever had, whom I very much like personally, has used his enormous talents on behalf of right-wing litigation campaigns—not just S.B. 8—that I think are harmful to the law, and to the country." I asked Strauss how he would have felt if a former student had crafted the same tool as S.B. 8 in order to undermine gun rights. He paused for a long time, and then said, "I would think, as I do with Jonathan, that's a smart person, you're doing a smart thing. I'd think you shouldn't have done it."
The whole article is worth a read.
