Attacking Judges for Judging
Terry H. Schwadron
Sept. 27, 2021
Just in case you may have been led to believe that the pending U.S. Supreme Court challenge from Mississippi is a singular, heartfelt moral argument over abortion, a legal brief filed in the case last week attempts to broaden the challenge to an attack on same-sex marriage and LGBTQ rights as well.
Indeed, the argument from the guy who designed the recent Texas law that has all but banned abortions in that state is a broadside against judges making any decision not specifically in black ink of the Constitution.
The author of the brief is Jonathan Mitchell, a one-time clerk to Justice Antonin Scalia, the former Texas Solicitor General and conservative attorney, who argues in the abortion case brief that not only is Roe v. Wade unconstitutional, but that the cases underscoring LGBTQ rights are “as lawless as
Roe” and should be eliminated.
So, the people who brought you anti-abortion laws now want to re-open gay rights — another settled legal precedent. Or so we have thought.
Judges Shouldn’t Judge
As MSNBC’s Jessica Levinson argues in a column this week, “After scoring an initial victory in their mission to eviscerate women’s constitutionally protected right to obtain access to an abortion, some in the conservative movement have already explicitly moved on to attacking LGBTQ rights, which suggests they’re gunning for all your constitutionally protected rights — at least those not dealing with guns.”
Levinson, a professor at Loyola Law School, also the director of its Public Service Institute at Loyola Law School, co-director of Loyola’s Journalist Law School and former president of the Los Angeles Ethics Commission, explains that Mitchell, who now runs his own one-man law firm, is dead set against both Roe and the cases governing same-sex rights because “they’re based on judges, well, judging.”
The same Jonathan Mitchell who is seeking termination of abortion as legally valid argues in his Mississippi abortion case challenge due for hearing in December that women can have no protected right to abortion because it was never written in the Constitution.
Further, in the same brief, Mitchell suggested he’s coming for Lawrence v. Texas, the 2003 decision in which the Supreme Court ruled that laws that criminalize sodomy are unconstitutional, and Obergefell v. Hodges, the 2015 ruling in which the court concluded that the Constitution protects the rights of same-sex couples to marry.
Mitchell describes these outcomes as creating “court-invented rights to homosexual behavior and same-sex marriage.” He concluded, “These ‘rights,’ like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.”
One Man, One Influence
Apparently, it was the deeply religious Mitchell who advised Texas lawmakers to devise their anti-abortion law with a legal loophole — essentially giving enforcement powers to file damaging lawsuits to ordinary people rather than to state officials. With its ideological balance recast by Donald Trump, the Supreme Court refrained from blocking a new law in Texas that all but bans abortion — a potential turning point in the long-running fight over the procedure, as The New York Times explained.
Mitchell said that people should stop complaining about the Texas law he designed to restrict abortion because if women don’t want to worry about needing an abortion, they can just stop having sex. Apparently, women should also not be raped or become victims of incest or use birth control.
Literalist Mitchell would say nothing governing such behaviors is written in the Constitution.
Likewise, the Constitution, brilliant as it may be among constitutional democracies, does not specifically grant rights to same-sex couples or lots of other issues. That’s of course why we have judges and courts to apply broad principles to specific cases. Of course, one could argue the same about guns for use by anyone other than “regulated militias,” but why insist on consistency?
The 14th Amendment guaranteeing citizen protections, cited to allow for Lawrence and Obergefell, talks of privileges and of equal rights against undue government restrictions. It doesn’t include a list of those rights and leaves it to judges to err on the side of stopping undue intrusions.
Clearly Mitchell is among those who think judges have gone too far in interpreting the Constitution.
The point for today is that what is really at stake here goes well beyond the specific time-limitations of various state abortion laws or even the methods for enforcement. Hollowing out rights is a danger to democracy, and the same thinking that created the Texas abortion law is now being aimed at LGBTQ communities. You don’t even have to squint to see equivalent concerns for transgender rights, voting rights, affirmative action, and civil rights of all kind. Just whose rights are we protecting under these theories?
Who’s the next target for these people?
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