The Election Described As A Guy You Never Heard Of
Jonathan Mitchell, the Avatar of Awful, is trying to ruin everything
I maintain that’s it’s perfectly fine to hate some people.
Do so based on their actions. Actions that cause harm to others, especially when they either know better or are in a position to know better. If they cease those actions, apologize, and make real efforts to repair the damage they caused, then you should stop hating them. You may never give them the time of day again, but you should drop the enmity and the wishing they would soon die horribly in a fire.
Which brings me to Jonathan Mitchell, Esq. He represents the worlds we get to choose in November. Not that voting for Harris is utopia materialized, give me a break. But for now, we’re talking about grand sweeps of vision, the longue durée, cultural and legal and societal shifts. What world do you want to live in going forward? One where people like this proliferate and decide what the rules are, who matters, who doesn’t? Or something somewhat resembling decency and sanity, where we try not to gang up on each other in a kind of frenzied blood sport under color of law.
His greatest hits are a litany of evil:
In the Before Times, when women had some residual control of their own bodies but Texas didn’t like that, Mitchell cooked up the bounty hunting enforcement mechanism behind SB 8.
See, back when bodily autonomy was a (sort of) protected right under Supreme Court precedent, the government couldn’t punish anyone for seeking an abortion. Jonathan Mitchell dredged up a deep cut from slavery times and enabled private citizens to bring civil suits against anyone they believed aided or abetted abortions, with a hefty payout if they won their suits—a bounty.
If the individual citizens sue to enforce a Texas law, well, then it’s not the government punishing people for exercising their rights under the federal Constitution, see? When asked to halt the bill, SCOTUS declined, allowing it to go into effect (because the bought-and-paid-for hacks in robes there pretty much knew they were going to kill Roe v. Wade anyhow, so why not?).
Mitchell set up a system where Texans could spy and rat on the private reproductive, medical lives of their neighbors, based on personal religious prejudices for profit, as a way to circumvent the US Constitution, and SCOTUS let him.
Mitchell represented Trump in Trump v. Anderson, the case where Colorado’s Supreme Court kicked Trump off the presidential ballot because he was an insurrectionist, as established in court there. Mitchell won, unanimously, although the decision stinks nine ways to Sunday.
Mitchell was the attorney who argued Braidwood Management v Becerra, a Fifth Circuit decision which, so far (the feds are petitioning SCOTUS to overrule), invalidates the Affordable Care Act’s preventive care coverage recommendations on the grounds that the members of the task force that made the recommendations were unconstitutionally appointed.
(This is much like the argument that got Jack Smith’s Mar-A-Lago stolen classified documents case dismissed by noted, unqualified, Trump stooge Judge Aileen Cannon: Smith wasn’t constitutionally appointed, so everything he’s done is void. Thank SCOTUS’s Trump immunity decision for that gem, specifically Clarence Thomas’ concurring opinion, which gave her the color-by-numbers instructions on what to do.)
In Braidwood, religious prudes don’t want to have to cover contraception or PrEP (pre-exposure prophylaxis, which is something like 99 percent effective in preventing sexual transmission of HIV and 74 percent effective in preventing IV drug use transmission). If Mitchell’s argument prevails, then all the recommendations for what preventive care the ACA covers could be in jeopardy, as far as I can tell, because the recommenders were improperly appointed. Don’t you love the law?
Not only did Mitchell write an amicus brief in the Dobbs case that overturned Roe (arguing, of course, that it should be overturned), but he further insisted that Obergefell should be tossed as well. Obergefell is the decision that legalized gay marriage. He argued that the Loving decision (which legalized interracial marriage) could be salvaged on separate legal grounds, and this all sounds very much like Clarence Thomas’ permission structure in calling for all of the above to come to pass. So, thanks for all that.
He’s submitted briefs against Harvard and is suing Northwestern alleging racial preference practices running afoul of affirmative action decisions, something else SCOTUS has killed, so another feather in this asshole’s cap.
To sum up, Jonathan Mitchell is a Class-A bag of severed dicks.
Mitchell’s been doing most of his work in the Fifth Circuit Court of Appeals, the country’s most notoriously wingnut rightwing clownshow. These bozos are the origin for a truckload of cases that the Supreme Court hears each term. On the plus side, a lot of the Fifth Circuit decisions get overturned or otherwise shot down. On the minus side are three things:
Once in a while SCOTUS tells the Fifth Circuit, “No, kids, you can’t let Zackey Rahimi keep his AR-15 despite his domestic violence protective order and his involvement in, like, five shootings, just because we let Clarence Thomas make up nonsense to justify gun anarchy in our Bruen decision. We still have to think about how we look to sane people on occasion, because soccer moms vote, and this makes us look bad.” But when SCOTUS yanks the Fifth Circuit’s chain like this, the Supreme Court gets to look at least a little less unhinged than they really are, a smidge more “moderate” because the Circuit they are wagging their finger at is truly batshit in comparison.
Every time the Fifth Circuit sends a case to SCOTUS, tons of legal briefs and articles are written by the right-wing lawfare machine to give more and more faux-intellectual coverage and ammo to people like Alito and Thomas to do what they most dream of doing. So win, lose or draw, the Fifth Circuit generates huge opportunities for SCOTUS opinions (majorities, concurrences, dissents) from those loons that will be cited in cases down the road, giving them the appearance of a pedigree in legal thought, even though they are certifiably nutso.
Sometimes, SCOTUS agrees with and upholds the Fifth Circuit. This is almost always very, very bad news.
So why do I hate Jonathan Mitchell today?
Because of Little v Llano County.
Llano County is in Texas, northwest of Austin and north of San Antonio. In August 2021, busybody weirdos there asked the Llano County library commissioner to remove 17 books from the library because they were “pornographic” or “obscene.”
What so shocked the sensibilities of Llano Countians (pop. 21,243)?
In the Night Kitchen, by Maurice Sendak
1971 Caldecott Honor Book
Notable Children's Books of 1940—1970 (ALA)
Best Books of 1970 (SLJ)
Outstanding Children's Books of 1970 (NYT)
Best Illustrated Children's Books of 1970 (NYT)
Children's Books of 1970 (Library of Congress)
Carey-Thomas Award 1971—Honor Citation
Brooklyn Art Books for Children 1973, 1975
Caste: The Origins of Our Discontents, by Isabel Wilkerson
2020 Los Angeles Times Book Prize for Current Interest
2020 Goodreads Choice Award for History & Biography
2020 National Book Award nonfiction longlist nominee
2020 Kirkus Prize nonfiction nominee and finalist
2021 PEN/Jean Stein Book Award longlist nominee
2021 PEN/John Kenneth Galbraith Award nonfiction nominee and finalist
It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health, by Robie H. Harris
American Literature Association Notable Children's Book in 1995
Booklist Editor's Choice in 1994
Boston Globe–Horn Book Honor Book in 1995
The New York Times Best Book of the Year in 1995
School Library Journal Best Books in 1994
Wilson Library Bulletin Favorite Reads in 1994
They Called Themselves the K.K.K: The Birth of an American Terrorist Group, by Susan Campbell Bartoletti
ALA Notable
Booklist Top of the List Winner for 2010, Best YA Books of All Time, and Editor’s Choice for 2010
CCBC Choices 2011
Chicago Public Library Best of the Best
Horn Book Magazine 2010 Fanfare List
Junior Library Guild Selection
Kirkus Best Books for Teens 2010
Notable Book for a Global Society, International Reading Association
Orbis Pictus Recommended Title, National Council of Teachers of English
Publisher’s Weekly Best Children’s Book of the Year 2010
School Library Journal Best Children’s Book of the Year 2010
Washington Post Best Children’s Book of 2010
YALSA Excellence in Nonfiction Finalist Honor winner
Being Jazz: My Life as a (Transgender) Teen, by Jazz Jennings
2017 Rainbow Book List (annual bibliography of quality books with significant and authentic LGBQTIA+ content, which are recommended for people from birth through eighteen years of age)
Larry the Farting Leprechaun, by Jane Bexley
My Butt is So Noisy! by Dawn McMillan
…which just looks frickin hilarious.
Okay, so: Llano’s prudes, racists, homophobes, and transmisiacs who doubtless got their moral panics downloaded from Libs of TikTok and other bad actor influencers (this was 2021, remember) threw a hissy over library books and asked the Library Commissioner to yoink these and other titles.
Legal shit ensued. There was drama.
Flash forward to last week, when our boy, Jonathan Mitchell, told the the Fifth Circuit that the government “has no constitutional obligation to provide libraries” and that governments provide books to the public “as a matter of grace.”
Remember “drain-the-pool-politics? Ye olde “if the public swimming pool has to allow Black kids to swim, we just won’t have a public pool anymore, since there’s no requirement that the government has to provide swimming pools”? This is why we can’t have nice things when small-minded assholes are empowered by judges and the Presidents and senators who appoint them.
Mitchell is arguing that the precedent case in the Fifth Circuit, Campbell v St. Tammany Parish School Board, was “wrong and should be overruled.” What does Mitchell find so wrong and overrulable about Campbell? It held that the important consideration in cases like the Llano library is “whether the government’s ‘substantial motivation’ [in removing library books] was to deny library users access to ‘objectionable ideas.’”
Objectionable ideas like butts make funny noises and trans people exist and racism and the Klan are bad, actually.
Instead of looking at book banning in terms of, well, book banning, Jonathan Mitchell wants us to think of providing library books—and the specific books provided—as government speech, which is not required to be viewpoint neutral.
If he were to win this argument, Fifth Circuit libraries (Texas, Louisiana, Mississippi) could all become propaganda mills for the state. I mean absolutely literally.
If said Fifth Circuit ruling were to be upheld by SCOTUS, the same logic would apply to every library in the whole of the country.
Is this likely? I doubt it, but have you seen the courts these days?
The Fifth Circuit is cray-cray, yes, but even they don’t seem to be buying Mitchell’s argument so far. And even if they go for it, SCOTUS seems like a hard sell here. But again, shooting down the Fifth Circuit is part of the rope-a-dope SCOTUS likes to play to reassure folks that they retain some fealty to the Constitution as we have heretofore understood it, despite [insert horrific ruling here, or here or here.]
But this is what Jonathan Mitchell is about. This is the man’s soul. He takes the small-hearted and tiny-minded prejudices, the fears and hates in what’s hopefully a minority of a 20,000-person county in Texas, and channels his inner sophist to argue that these fuckos should not just be able to yank some books from their library, which is bad enough, but that their cause is so righteous that, “well, if you think about it, judge,” libraries themselves should just be extensions of Big Brother from sea to shining sea.
Just like he takes the religious bigotries of folks who hate PrEP (which can enable HIV-free married partners to have sex with their spouses without contracting the virus, or extend the chances an IV drug user can live long enough to turn their life around without contracting HIV), and argue it into a position that might disallow everything the Affordable Care Act covers in terms of preventive care for the 45 million or more people in that program. Screw them: they don’t get their cancer screenings because…the task force members who said cancer screenings were probably good things to cover were not properly appointed under the document written by the dudes in powdered wigs.
Just like Mitchell drew on the Fugitive Slave Act to craft SB 8 in Texas and effectively deputized every Texas busybody to police the uteruses and reproductive lives of their neighbors by placing a bounty on what’s nobody else’s goddamn business.
Jonathan Mitchell is a bipedal object lesson in how the law is weaponized (thanks to our system’s aging and degrading institutions) to turn decency and “live and let live” upside down and inside out to make more and more inroads for minority rule by the worst people alive. He exemplifies the need for solidarity no matter how comfortable and insulated and unplugged we may be from the goings on elsewhere, among “weird” populations we don’t quite understand.
Because when we don’t quite feel comfortable with “this whole idea” of trans people, we end up losing the public library, not to mention Leprechauns shooting rainbows out their butts, and hell, everybody needs a little of that in their lives.
And when, because it’s not “polite,” we don’t fiercely defend bodily autonomy every time it’s even adjacently referenced, we get big-dollar bounties on our neighbors’ sex and reproductive lives, which don’t get shot down by higher courts, because those traitors are are already committed to obliterating the rights of over half of us to control one’s most intimate personal possessions.
And when we sit back and defer to “religious conscientious objections” about covering contraception or health care for people because the God-Told-Me-To-Be-Bigoted contingent asserts their sacred get-out-of-the-commonweal card, we end up with legalism undermining the ACA’s coverage for all, as well as Special Counsels and insulating Donald Trump even more than our pitiful and gunshy institutions already have.
These people are bullies. They succeed only because their abuse is not widely witnessed, because their victims are not widely embraced by the rest of the community as deserving of the same rights and dignity as any of us, and because we ourselves are too goddamned afraid to lose a smidge of status in the eyes of others by seeming too…earnest or “pro-homo” or whatever…to shout the bullies down.
When the whole schoolyard stands up for the bully’s victim, arms crossed, a solid human line of “We don’t do that here, you piece of shit,” the bully gets the message that he’s outnumbered and probably set to get his ass beat if he continues. His permission structures—indifference to the suffering of others, the desire of most folks not to get involved, the conception of the world as a bunch of atomized individuals who can do very little on their own—all crumble. He gets the message or he gets an ass-whupping…and then he gets the message. And afterward, he’s usually a helluva lot happier with himself and his newfound community of friends, once he’s stopped projecting his own issues onto others, taking out his self-hatred on them, and finding that having tolerant pals who accept him as he is is way better for his psyche and healing and growth as a human than bottling shit up and trying to dominate the world.
So stand up for people. Especially if you don’t “get” their whole “thing.” The fact that they’re being targeted by the worst fucking people on the planet, the same people who are wrecking everything else for everybody, cutting a swath of burnt and salted earth across everything that makes a common good possible for regular folks should be a good cue. You don’t have to be a scholarly encyclopedia of gender theory. Just answer any question about your allyship with lines like, “Because people are people, and these fuckers are bigoted twats who want to run everybody’s lives.” First, the press won’t quote that. Second, the reporter will stifle a laugh and like you for saying it.
Stand up for books. And libraries. And the freedom to read what you want, to be who you want, to make what might turn out to be mistakes if that’s what they are. The freedom to make unpopular choices. The freedom to control your own body.
Solidarity. Standing up for others. Especially others you don’t know or don’t know very well. Others who might seem so different from you, so…Other. That’s the key, see? When you embrace those Others, Otherness goes away, and assholes like Jonathan Mitchell can’t use it as a wedge or lever or hallucinogenic poison sprinkled in the Red Bull of the yokels to get them so riled up and targeting innocents.
As Lisa Needham wrote for Balls and Strikes last year,
Had Trump not stuffed the judiciary full of conservative goons, Mitchell would be a mostly-harmless crank whose tireless enthusiasm for rolling back the rights of others would find no foothold in a legal system that wasn’t defined by reactionary grievance. But conservative dominance of the courts has created an opportunity for people like Mitchell, who is one of many conservative lawyers and law firms eager to make aggressive arguments before receptive audiences. Right now, Mitchell is at the top of his game—the smart choice for all the wrong people.
Let’s make people like Jonathan Mitchell mostly-harmless cranks again. Then we don’t have to hate them, I don’t have to write screeds like this, and we can all enjoy regular lives just being the infinitely diverse weirdos we actually are down deep—reading whatever books strike our fancies, falling in love with whomever will have us if we’re that cosmically fortunate, going to doctors to make sure we catch cancer early or get the drugs that protect us from awful diseases, deciding with those doctors and those loved ones what’s best for our lives and health and futures in matters that concern precisely nobody else.
Can I get a “So say we all”?