What a strange framing:
For Mr. Mitchell, a onetime clerk to Justice Antonin Scalia, the decision was a stinging rebuke, and he vowed that if he ever had the chance to help develop another anti-abortion law, he would ensure it survived at the Supreme Court.
Last month, he got his chance. With its ideological balance recast by President Donald J. Trump, the 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. And it was the deeply religious Mr. Mitchell, a relative unknown outside of Texas in the anti-abortion movement and the conservative legal establishment, who was the conceptual force behind the legislation.
The court’s decision did not address the law’s constitutionality, and the legislation will no doubt face more substantive challenges. But already, the audacious legislative structure that Mr. Mitchell had conceived of — built around deputizing ordinary citizens to enforce it rather than the state — has flummoxed lower courts and sent the Biden administration and other supporters of abortion rights scrambling for some way to stop it.
“Jonathan could have given up, but instead it galvanized him and directly led to the more radical concepts we see” in the new Texas law, said Adam Mortara, a conservative legal activist who is one of Mr. Mitchell’s closest friends.
Mr. Mitchell represents a new iteration of the anti-abortion campaign. Instead of focusing on stacking the courts with anti-abortion judges, trying to change public opinion or pass largely symbolic bills in state legislatures, Mr. Mitchell has spent the last seven years honing a largely below-the-radar strategy of writing laws deliberately devised to make it much more difficult for the judicial system — particularly the Supreme Court — to thwart them, according to interviews.
What has changed since Whole Woman’s Health is not that Texas’s attempts to evade constitutional scrutiny have gotten more clever. No court has been “flummoxed” by Mitchell’s Stasi Strategy. What’s happened is that 1)Anthony Kennedy retired strategically and 2)Ruth Bader Ginsburg did not, shifting the median vote of the Court from (tepidly) pro-Roe to (extremely) anti-Roe. That’s it. If Ginsburg had retired in 2013 the Texas law would not be in force. Trump’s judicial appointments are the whole ballgame here.
The unwillingness to believe that politics swamps law in Supreme Court cases with political salience is the same pathology that is causing Stephen Breyer to repeat Ginsburg’s catastrophic mistake even after it has led to Roe v. Wade being overruled by a lawless memo at midnight on a Wednesday.