Jonathan F. Mitchell

Jonathan F. Mitchell
Jonathan F. Mitchell
Solicitor General of Texas
	In office; December 10, 2010 – January 5, 2015
Attorney General	Greg Abbott
Preceded by	James C. Ho
Succeeded by	Scott A. Keller
Personal details
Born	Jonathan Franklin Mitchell; September 2, 1976 (age 48); Upland, Pennsylvania, U.S.
Education	Wheaton College (BA); University of Chicago (JD)

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]

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]

Mitchell also represented former president Donald Trump when Colorado tried to exclude him from the 2024 presidential ballot.^[10]

Early life and education

Mitchell was born and raised in Pennsylvania and is the oldest of seven brothers.^[11] He graduated from Wheaton College in 1998 with a B.A., summa cum laude.^[12] He then graduated from the University of Chicago Law School, where he was an articles editor for the University of Chicago Law Review.^[13] He graduated in 2001 with a Juris Doctor with high honors and Order of the Coif membership.^[14]

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.^[15]

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]^[15]^[16]

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]^[17]

ACUS nomination

In 2017, President Donald J. Trump nominated Mitchell to chair the Administrative Conference of the United States (ACUS).^[15] Mitchell’s nomination was voted out of committee, but never received a vote on the Senate floor.^[18]

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.^[19]^[20]

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.^[21]^[22]

On February 8, 2024, Mitchell represented former president Donald J. Trump before the Supreme Court in Trump v. Anderson,^[23] 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.^[10] 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.^[24]^[25]

Other Legal Activities

On July 2, 2024, Mitchell sued Northwestern University over its alleged use of race and sex preferences in faculty hiring.^[26] In this lawsuit, Mitchell is representing an organization called Faculty, Alumni, and Students Opposed to Racial Preferences (or FASORP),^[27] which litigates against race and sex preferences and opposes practices that subordinate academic merit to diversity considerations. The complaint accuses Northwestern University of violating numerous federal anti-discrimination statutes, including Title VI,^[28] Title IX,^[29] and 42 U.S.C. § 1981.^[30]

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.^[31] 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.^[32]

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.^[33]^[34] 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.^[35] 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.^[36] 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.^[37]^[38]

Publications

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. F. 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.
Why Was Roe v. Wade Wrong?, in Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023).

References

^ ^a ^b ^c ^d ^e ^f ^g ^h "United States Senate Committee on the Judiciary: Questionnaire for Non-Judicial Nominees: Jonathan Franklin Mitchell" (PDF). Senate Judiciary Committee. May 31, 2018.
^ Orden, Erica (February 7, 2024). "Meet the lawyers arguing the Trump ballot case at the Supreme Court". Politico. Retrieved March 19, 2024.
^ Baio, Ariana (February 9, 2024). "Who is Jonathan Mitchell? The conservative lawyer arguing for Trump at Supreme Court". Retrieved March 12, 2024.
^ Cruse, Don (December 10, 2010). "Texas' new Solicitor General: Jonathan Mitchell". The Supreme Court of Texas Blog. Retrieved 17 October 2017.
^ ^a ^b "Jonathan F. Mitchell". Oyez Project. Retrieved February 29, 2024.
^ 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.
^ ^a ^b Gershman, Jacob (September 4, 2021). "Behind Texas Abortion Law, an Attorney's Unusual Enforcement Idea". The Wall Street Journal. Retrieved September 5, 2021.
^ ^a ^b 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]}
^ ^a ^b ^c "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.
^ ^a ^b Gerstein, Josh (February 9, 2024). "A very un-Trumpy performance delivers for Trump at Supreme Court". Politico. Retrieved February 9, 2024.
^ 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.
^ 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.
^ "The University of Chicago Law Review Volume 68 Masthead" (PDF). Retrieved March 28, 2022.
^ "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. 6 September 2017.
^ ^a ^b ^c "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. This article incorporates text from this source, which is in the public domain.
^ 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.
^ "Jonathan Mitchell". Retrieved July 21, 2022.
^ "PN931 — Jonathan F. Mitchell — Administrative Conference of the United States". 4 January 2019. Retrieved June 19, 2022.
^ "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.
^ Gersen, Jeannie Suk, The Conservative Who Wants to Bring Down the Supreme Court, The New Yorker, January 5, 2023
^ Liptak, Adam (May 23, 2022). "A Conservative Lawyer's New Target After Abortion: Affirmative Action". The New York Times. Retrieved June 19, 2022.
^ "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.
^ "Trump v. Anderson". Oyez Project. Retrieved March 25, 2024.
^ Mangan, Dan (March 4, 2024). "Supreme Court puts Trump back on Colorado Republican primary ballot". CNBC. Retrieved March 4, 2024.
^ 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.
^ "Complaint in FASORP v. Northwestern University, No. 1:24-cv-05558 (N.D. Ill.)" (PDF). July 2, 2024. Retrieved July 7, 2024.
^ "Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP)". Retrieved July 7, 2024.
^ Title VI of the Civil Rights Act of 1964
^ Title IX of the Education Amendments of 1972
^ 42 U.S.C. § 1981
^ Tavernise, Sabrina (2021-07-09). "Citizens, Not the State, Will Enforce New Abortion Law in Texas". The New York Times. Retrieved 2021-11-09.
^ 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.
^ 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.
^ "Whole Woman's Health v. Jackson, No. 21-463" (PDF). supremecourt.gov. December 10, 2021. Retrieved December 26, 2021.
^ Milhiser, Ian (September 2, 2021). "The staggering implications of the Supreme Court's Texas anti-abortion ruling". Vox. Retrieved June 18, 2022.
^ Severino, Roger (September 2, 2021). "Texas's Absolutely Genius Victory for Life". National Review. Retrieved November 9, 2021.
^ Vander Ploeg, Luke (May 25, 2022). "Oklahoma Governor Signs Bill That Bans Most Abortions". New York Times. Retrieved May 25, 2022.
^ Paulsen, Stephen (July 30, 2022). "The legal loophole that helped end abortion rights". Courthouse News Service. Retrieved August 7, 2022.

External links

Biography at Stanford Law School Archived 2017-09-15 at the Wayback Machine
Jonathan Mitchell on C-SPAN
Appearances at the U.S. Supreme Court from the Oyez Project
SSRN page for Jonathan F. Mitchell

Legal offices
Preceded by James C. Ho	Solicitor General of Texas 2010–2015	Succeeded by Scott A. Keller

[SenateQuestionnaire-1] ^ ^a ^b ^c ^d ^e ^f ^g ^h "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.

[OyezJFM-5] "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.

[Gershman-7] Gershman, Jacob (September 4, 2021). "Behind Texas Abortion Law, an Attorney's Unusual Enforcement Idea". The Wall Street Journal. Retrieved September 5, 2021.

[Marimow-8] 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]}

[21A24-9] "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.

[TrumpvAnderson-10] Gerstein, Josh (February 9, 2024). "A very un-Trumpy performance delivers for Trump at Supreme Court". Politico. Retrieved February 9, 2024.

[:0-11] 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.

[:02-12] 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.

[13] "The University of Chicago Law Review Volume 68 Masthead" (PDF). Retrieved March 28, 2022.

[chicago-14] "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. 6 September 2017.

[whitehouse-15] "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. This article incorporates text from this source, which is in the public domain.

[MitchellACUS-16] 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.

[17] "Jonathan Mitchell". Retrieved July 21, 2022.

[18] "PN931 — Jonathan F. Mitchell — Administrative Conference of the United States". 4 January 2019. Retrieved June 19, 2022.

[19] "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.

[20] Gersen, Jeannie Suk, The Conservative Who Wants to Bring Down the Supreme Court, The New Yorker, January 5, 2023

[21] Liptak, Adam (May 23, 2022). "A Conservative Lawyer's New Target After Abortion: Affirmative Action". The New York Times. Retrieved June 19, 2022.

[22] "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.

[23] "Trump v. Anderson". Oyez Project. Retrieved March 25, 2024.

[24] Mangan, Dan (March 4, 2024). "Supreme Court puts Trump back on Colorado Republican primary ballot". CNBC. Retrieved March 4, 2024.

[25] 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.

[complaint-26] "Complaint in FASORP v. Northwestern University, No. 1:24-cv-05558 (N.D. Ill.)" (PDF). July 2, 2024. Retrieved July 7, 2024.

[27] "Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP)". Retrieved July 7, 2024.

[TitleVI-28] Title VI of the Civil Rights Act of 1964

[TitleIX-29] Title IX of the Education Amendments of 1972

[USC1981-30] 42 U.S.C. § 1981

[31] Tavernise, Sabrina (2021-07-09). "Citizens, Not the State, Will Enforce New Abortion Law in Texas". The New York Times. Retrieved 2021-11-09.

[32] 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.

[Zernike-33] 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.

[21-463-34] "Whole Woman's Health v. Jackson, No. 21-463" (PDF). supremecourt.gov. December 10, 2021. Retrieved December 26, 2021.

[35] Milhiser, Ian (September 2, 2021). "The staggering implications of the Supreme Court's Texas anti-abortion ruling". Vox. Retrieved June 18, 2022.

[36] Severino, Roger (September 2, 2021). "Texas's Absolutely Genius Victory for Life". National Review. Retrieved November 9, 2021.

[37] Vander Ploeg, Luke (May 25, 2022). "Oklahoma Governor Signs Bill That Bans Most Abortions". New York Times. Retrieved May 25, 2022.

[38] Paulsen, Stephen (July 30, 2022). "The legal loophole that helped end abortion rights". Courthouse News Service. Retrieved August 7, 2022.

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Jonathan F. Mitchell

Early life and education

Career

ACUS nomination

Supreme Court practice

Other Legal Activities

Senate Bill 8

Publications

See also

References

External links

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