Mitchell's  'mission is to undermine the Court itself as the final authority on the meaning of the Constitution'

scheme to shield the statute from judicial review
nullifying SC ruling

Liberal legislatures, for example, may wish to defy unfavorable precedents on guns, campaign finance, free speech, and voting rights. Mitchell, for one, would support them if, in his view, the Court is deviating from the Constitution’s text.

Citizens United, from 2010, which held that campaign-finance restrictions violated corporations’ First Amendment rights

Shelby County v. Holder, from 2013, which declared a key provision of the Voting Rights Act unconstitutional.

Mitchell is crusading to cut down the judiciary’s power and urging progressives to do so, too.

 “I was a textualist from the moment I arrived at law school,” he explained, referring to the method of interpretation that Scalia advocated, in which “the text is the law, and it is the text that must be observed.”

"living constitutionalism,” the idea that constitutional meaning evolves along with changing social values.

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

ensconced in a library carrel

The conventional idea that courts can “strike down,” “invalidate,” or “block” statutes was, he wrote, simply wrong. A court can “opine” that a statute is unconstitutional and tell an official not to enforce it, but the statute nonetheless “remains a law until it is repealed by the legislature that enacted it.”

Title VII, the employment-discrimination law

Started solo law practice 2008
solo law practice that has been active in dozens of suits involving conservative causes

Legal scholars were not only concerned about evasion of the judiciary; they also warned that S.B. 8 amounted to state-sanctioned vigilantism. By allowing anyone with knowledge of an abortion to sue anyone who had helped in the process, from a doctor to a rideshare driver, S.B. 8 created vast networks of potential wrongdoers and informants. Writing in the Times, the law professors Jon Michaels and David Noll warned that such laws “are manufacturing and subsidizing a community of grievance activists,” and inviting guerrilla investigative tactics and even violence.

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.”

1803 Marbury v. Madison
Chief Justice John Marshall proclaimed, “It is emphatically the province and duty of the judicial department to say what the law is.” There, the Supreme Court, for the first time, declared an act of Congress unconstitutional and “entirely void.” Because the Court implied that its own authority to interpret the Constitution is superior to that of the other branches, the case is the fountainhead of judicial supremacy. One could view it as a power grab that we have mostly accepted for more than two hundred years.

Mitchell said he found it telling that Roberts and Sotomayor treated judicial supremacy as “axiomatic” rather than as “a choice that must be defended.” 

Thomas Jefferson—who was President when Marbury was decided—believed that “each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution.” Jefferson’s view, which scholars have called departmentalism, countered judicial supremacy with the claim that the power to determine whether acts violate the Constitution is enjoyed by each branch in its own sphere of action.

In his first Inaugural Address, Lincoln further worried that, if policy on “vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.”

Cooper v. Aaron [in which the Court rebuked Southern resistance to federal desegregation orders], is considered the high-water mark of judicial supremacy. The Court’s assertion that its interpretation of the Constitution “is the supreme law of the land” and binding on the states implied that to disobey a majority of Justices was to violate the Constitution itself.

The Warren Court’s decisions in the nineteen-sixties expanded voting rights, gave poor criminal defendants access to lawyers, and bolstered privacy protections, spurring a recognition that a strong Court could enable liberals to achieve their goals.

Alexander Bickel, of Yale Law School, used the term “the countermajoritarian difficulty” to explain the problem of the unelected Court undermining decisions of elected officials. 

Roe v. Wade, in 1973, which disallowed states from restricting abortion before viability, entrenched two opposed partisan perceptions of the Court, as legitimately protecting an important legal right or lawlessly usurping an important democratic decision.

To [Larry] Kramer, the Court’s pronouncements were not the final word on the Constitution but, rather, one branch’s interpretation, subject ultimately to a higher authority—the people. 

his fellow liberal constitutional scholars’ “easy assumption” of judicial supremacy, which he likened to treating judges as “philosopher kings.” He said, “Liberals hold on to it and hold on to it, and have some deep belief that in the long run this will conduce to the values that they care about.”

His [Edwin Meese's] point was similar to Lincoln’s: that a Supreme Court decision binds the parties but is not “the supreme law of the land,” not “binding on all persons and parts of the government, henceforth and forevermore.”

[Sotomayor] called him out as echoing “the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullif[y]’ any federal law with which they disagreed.”

'Mitchell’s iconoclastic attitude to the Court is layered with idealized reverence…'

Mitchell admires and finds some common ground with an intellectual vanguard that is opposing judicial supremacy from the left. [eg]…progressive constitutional scholar Nikolas Bowie, a professor at Harvard Law School, who has lamented the ease with which the Court can use judicial review to override popular will. 

[Bowie] co-authoring a book called “Supremacy: How Rule by the Court Replaced Government by the People,” 

Under Article III of the Constitution, Congress may legislate to strip the Court of jurisdiction to hear certain appeals. It could prevent the Court from hearing cases about abortion, guns, or religion, for example. It could also prevent the Court from declaring laws unconstitutional without Congress’s approval.

constitutionalism”—the idea that “there needs to be some higher law that is more difficult to change than the rest of the legal order”

Like other critics of judicial supremacy, Mitchell believes that Congress, rather than the Court, should have final say on constitutional meaning, even if it means rights might shift along with electoral outcomes—and the Court, where possible, should decide matters based on congressional statutes rather than judicial doctrines on constitutional rights.

Roe forbade states from banning abortion until viability