Jonathan Mitchell, a Prominent Anti-Abortion Lawyer, on Restraining the Power of the Supreme Court

The New Yorker Radio Hour

WNYC Studios and The New Yorker

Politics, Arts, News, Wnyc, Books, David, Storytelling, Society & Culture, Yorker, New, Remnick

4.2 • 6.2K Ratings

🗓️ 27 June 2023

⏱️ 17 minutes

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Summary

In recent years, the attorney Jonathan Mitchell has become a crucial figure in the anti-abortion movement. Advising a Texas state senator, Mitchell developed Texas’s S.B. 8 legislation, which allows for civil lawsuits against individuals who have helped facilitate an abortion—acts like driving a patient to an appointment. The law was crafted to evade review by the Supreme Court in the period before Dobbs ended the precedent of Roe v. Wade. Opponents of the law have called it state-sponsored vigilantism. Mitchell is now representing a man seeking millions of dollars in civil damages from friends of his ex-wife—who helped her access abortion medication—in a wrongful death lawsuit. And yet, despite his conservative politics, Mitchell has something in common with some legal thinkers on the left: a critique of the Supreme Court and its extraordinary power. As an opponent of the belief in judicial supremacy, Mitchell asks, “Why should it be the Supreme Court and not Congress?” to have the last word on what the Constitution means. “Why should it be the Supreme Court and not a state legislature that might have a different view?” Mitchell rarely gives interviews, but he agreed to speak with The New Yorker’s contributor, Jeannie Suk Gersen, a professor at Harvard Law School who clerked for the former Supreme Court Justice David Souter.

Transcript

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0:00.0	This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker.
0:12.0	This is the New Yorker Radio Hour. I'm David Remnick.
0:15.7	In recent years, Jonathan Mitchell has become a crucial figure in the anti-abortion movement.
0:21.4	He was the architect of Texas's SB8 legislation,
0:25.1	which allows individuals to sue other people for helping to facilitate an abortion,
0:29.9	acts like driving a patient to an appointment.
0:32.8	The law was novel in how it protected itself from review by the Supreme Court,
0:36.8	and some of its opponents have called it state-sponsored vigilantism.
0:42.0	Today's ruling by the five most conservative justices on the court, the Texas law,
0:46.6	known as SB8, which has effectively banned almost all abortions in the state for 101 days,
0:52.4	can remain in effect for now.
0:55.0	SB8 empowers private citizens, not government officials,
0:58.0	to enforce the abortion ban by bringing private lawsuits.
1:02.0	Jonathan Mitchell, who conceived SB8,
1:05.0	is now representing a man seeking millions of dollars in civil damages
1:09.0	from friends of his ex-wife, who helped her
1:12.5	accessed abortion medication. The women named in the case have countersued. But despite his
1:19.2	conservatism and his role in anti-abortion politics, Mitchell has something in common with
1:24.3	legal thinkers on the left, a critique of the Supreme Court and its
1:28.7	extraordinary powers. And he has ideas about how to chip some of that power away. Mitchell rarely
1:34.7	gives interviews, but he agreed to speak with the New Yorker's legal correspondent Jeannie Sook Gerson.
1:40.5	Jeannie is a professor at Harvard Law School and clerk for Justice David Souter on the Supreme Court.
	...

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