The lawyer behind Texas’s abortion ban says he’s primarily concerned with pushing back against the Supreme Court’s power. Could liberals use his ideas, too?
, that criminalizing gay sex was unconstitutional. In that decision, Justice Anthony Kennedy relied on the Court’s privacy precedents, including Planned Parenthood v. Casey, the 1992 case that reaffirmed the core of Roe v. Wade.
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.
After Mitchell’s authorship of S.B. 8 became known, nearly a hundred of his University of Chicago Law School contemporaries issued a, saying that he “should know better than to construct a law deliberately intended to evade federal law.” They called the effort “dangerous.” Legal scholars were not only concerned about evasion of the judiciary; they also warned that S.B. 8 amounted to state-sanctioned vigilantism.
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.
In the nineteen-thirties, Franklin Delano Roosevelt became frustrated by the Court’s decisions striking down measures to lift the country out of the Great Depression. In his renomination speech in 1936, Roosevelt denounced what he called “a new despotism” wrapped “in the robes of legal sanction.
As liberals consolidated behind judicial supremacy, the few who pushed against it were conservatives, especially in response to Roe. Thirty years after Cooper v. Aaron, in which the Court rebuked Southern resistance to federal desegregation orders, President Ronald Reagan’s Attorney General, Edwin Meese, attacked Cooper as being “at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law.
But Bowie rebuffed the idea that he and Mitchell have much in common. He told me, “I just don’t think S.B. 8 has anything to do with a critique of judicial supremacy. Rather, it’s an attempt to undermine federal law’s supremacy over the states.” Like Strauss, Bowie saw a connection between the strategy and Jim Crow states’ efforts to defy federal integration mandates.
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