Jonathan F. Mitchell

In 2017, President Donald J. Trump nominated Mitchell to chair the Administrative Conference of the United States (ACUS).[8] Mitchell’s nomination was voted out of committee, but never received a vote on the Senate floor.[11]

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.[12] [13]

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.[14][15]

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.[16] 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.[17]

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.[18][19] 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.[20] 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.[21] 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.[22][23]

• 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.