The big news that kicked off this week was that the Supreme Court set Thursday to hear oral arguments over whether or not Donald Trump should be kicked off the ballot per the 14th Amendment, which bars those who have "engaged in insurrection or rebellion" against the government from holding office. What got a lot less attention was the announcement of which lawyer would argue on Trump's behalf: former Texas solicitor general Jonathan Mitchell. Reproductive rights activists sure sat up and took notice of the mention of Mitchell. He is one of the most odious men in the entire anti-abortion world, which is quite an achievement, considering the misogyny that fuels that movement.
Mitchell earned this "worst of the worst" title by being the architect behind the Texas "bounty hunter" law, which adds a level of creative sadism to abortion bans that would make the villain in the "Saw" movies envious. There have been so many vicious abortion bans passed since the Supreme Court overturned Roe v. Wade in 2022 that readers could be forgiven for forgetting how ugly the Texas law is. To recap: Beyond just banning abortion, the Mitchell-penned law offers a $10,000 bounty to any person who sues someone who "aids and abets" an abortion.
It empowers every two-bit bully imaginable to stick their noses into other people's business. A nosy Karen who thinks her neighbor's daughter is a "slut?" She can sue that neighbor for taking her daughter to the abortion appointment. An angry incel can punish a more romantically successful classmate by suing him for paying for a girlfriend's abortion. Local church busybodies who find out a community member donated to an abortion fund can now sue for "aiding and abetting." And, as most feminists immediately predicted, abusive husbands and boyfriends can sue the friends of their victim, for helping with an abortion that helped a victim escape her destructive relationship.
One of Mitchell's first big cases under the law looks exactly like what feminists predicted. Marcus Silva did not want his ex-wife to leave him. Witnesses and text messages paint a vivid picture of the cruelty he repeatedly inflicted on her that made her flee, however. He reportedly got drunk at her work party and called her a "slut" and a "whore" in front of her colleagues. He allegedly monitored her phone against her will and would follow her around the house, screaming invective. He reportedly threatened to release sexually explicit photos of her if she didn't return to do his laundry. According to court documents, Silva told his ex-wife to have sex with him or "you’re just gonna have your f*cking life destroyed in every f*cking way that you can imagine to where you want to blow your f*cking brains out."
In order to escape, Silva's ex-wife aborted a pregnancy. According to her and two friends, Silva found out about the abortion beforehand but did not say anything to stop her. Instead, they allege, he waited until she had the abortion — and then to punish her for leaving him, sued her friends under the Mitchell-penned law. He then told his ex-wife, according to the countersuit, that he would stop legally harassing her friends if she returned to him.
Mitchell didn't just write the law that Silva is allegedly using to blackmail his ex-wife. He's also representing Silva in a lawsuit to bankrupt two women whose only sin was helping a friend leave a toxic marriage.
Terrorizing women who leave bad marriages may be Mitchell's passion, but far from his only far-right interest. As Lisa Needham at Balls and Strikes wrote in April, "Mitchell’s caseload reads like a list of grievances read aloud at CPAC." He has sued to destroy Obamacare and called on the Supreme Court to end "rights to homosexual behavior and same-sex marriage." He has lamented court decisions legalizing abortion and contraception on the grounds that they assumed "the right to freely engage to sexual intercourse." And no shock, Mitchell is big on book banning, representing Llano County, Texas, in a court battle over the public library removing books that feature LGBTQ characters.
What links these various issues together, besides irrational hate, is obvious: These stances are all wildly unpopular with a majority of Americans. People like having health care, free speech, and the right to a private sex life. Mitchell no doubt understands that, if he put any of his preferred policies up for a vote, his views would lose big time.
There's a lot of talk in the media, correctly, about how Trump and the MAGA movement are a threat to democracy. But why the GOP has turned fascist is often lost in the discourse. Mitchell's presence on this case before the Supreme Court shows why: They know they cannot win with free and fair elections — so they are focused on destroying democracy itself.
Make no mistake: The argument for keeping a fascist insurrectionist on the ballot is deeply anti-democratic. "Democracy is not simply voting; it includes limits on how and under what circumstances political power can be disputed and wielded so that democracy itself can survive from generation to generation," Adam Serwer of the Atlantic recently explained. "There is no rule that says democracies must give endless and unlimited grace to those who used the public trust to conspire, for all the world to see, against them," Jamelle Bouie of the New York Times wrote, in a similar column.
The response of the legal world to the briefs submitted by Mitchell and the rest of Trump's team can be summed up as such: Are you kidding? The case for keeping Trump on the ballot is admittedly weak, but even so, it's astonishing how bad and lazy Mitchell's arguments are, including a claim that the Constitution only prevents insurrectionists from "holding" office, not from running for it. The words being tossed around on law Twitter are "bizarre," a "sign of weakness," and a "massive tactical blunder."
But there's a likely reason Mitchell, who once clerked for Justice Antonin Scalia, barely bothers to argue his case: He doesn't care about the law and is betting the majority of the Supreme Court doesn't, either.
Many observers believe, for good reason, that what will determine this case is not the merits but the fact that the majority of Federalist Society-linked members are too corrupt and partisan to make the correct call. Why put forward the effort towards making a good argument, when standing on your head and yelling "MAGA forever!" would get the same result? Especially since there really aren't any good arguments for keeping Trump on the ballot?
Of course, this just underscores how much the GOP has become a fascist party. Facts don't matter. Law doesn't matter. Democracy doesn't matter. Basic public safety doesn't matter. The only thing that matters is power. Arguably, it's a fascist flex to scorch the Constitution in favor of an incoherent criminal who smells like a butt. It proves Republican power, at least at the Supreme Court, is totally disconnected from even basic common sense and decency.
It's unlikely that Mitchell is taking this case just because he wants a piece of Trump's campaign cash. He will want far-right policy wins in return. His involvement gives lie to media nonsense about how Trump is "moderating" on the issue of abortion. On the contrary, it looks like the radical anti-choice movement is offering Trump help, and they will expect him to pay them back. That will almost certainly come in the form of a national abortion ban. Yes, it will be unpopular. But neither Trump nor Mitchell will care, because the end game is putting Trump's power entirely out of the reach of the voters.
