We're Building A Better Tri-State Together
Play Live Radio
Next Up:
0:00
0:00
Available On Air Stations

One man's outsized role in shaping the Supreme Court

AILSA CHANG, HOST:

It was May 2 when the American public got a glimpse of how the Supreme Court could rule on a very consequential case.

(SOUNDBITE OF MONTAGE)

UNIDENTIFIED REPORTER #1: Now, according to a breaking new report from Politico, the U.S. Supreme Court has, in fact, voted to overturn Roe v. Wade.

UNIDENTIFIED REPORTER #2: The Supreme Court has voted to overturn abortion rights.

UNIDENTIFIED REPORTER #3: The leaked opinion on abortion drove people to the steps of the Supreme Court in outrage and joy.

CHANG: Whether or not the Supreme Court actually does overturn Roe v. Wade, this moment the country finds itself in, staring quite possibly at the last remaining days of a constitutional right to abortion - this is the culmination of a decades-long effort by conservative activists around the country. And one man in particular has played an outsized role in that effort.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #1: Please join me in welcoming Leonard Leo.

(APPLAUSE)

CHANG: Leonard Leo - he leads the Federalist Society. It's a conservative legal organization. And through this group, Leo has spent the majority of his adult life working towards one central goal - getting conservatives appointed to the most powerful courts in this country, including the Supreme Court.

RUTH MARCUS: He, more than any other single person outside of government, is responsible for the transformation of the federal judiciary and the Supreme Court into the conservative-dominated institution that it is today.

CHANG: That's Washington Post columnist and author Ruth Marcus. She writes about the Federalist Society and Leonard Leo in her book, "Supreme Ambition: Brett Kavanaugh And The Conservative Takeover." Now, to fully understand how we got to this moment and how Leonard Leo grew to have so much personal influence over who now sits on the nation's highest court, you first need to understand the list.

(SOUNDBITE OF MONTAGE)

UNIDENTIFIED REPORTER #4: Donald Trump unveiled a list of 11 jurists he would consider nominating to the Supreme Court if he were...

UNIDENTIFIED REPORTER #5: We're just getting this list. We're looking through it.

UNIDENTIFIED REPORTER #6: The Trump list came something of a surprise today, but it is clear someone had been working on it for quite a while.

CHANG: By May 2016, Donald Trump had become the presumptive Republican presidential nominee, but he still needed to win over skeptical conservatives. And so he released a list of people he would nominate to the Supreme Court.

How much of a role - a personal, direct role - did Leonard Leo play in creating this list?

MARCUS: He wrote it.

CHANG: This list began with 11 names but continued to expand throughout Trump's campaign and his term in office. All of the people on this list had, at one time or another, questioned abortion rights. And just 10 days into his administration, Trump plucked the name Neil Gorsuch from this very list to fill Justice Antonin Scalia's seat.

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD TRUMP: Today, I am keeping another promise to the American people by nominating Judge Neil Gorsuch of the United States Supreme Court to be of the United States Supreme Court.

CHANG: Leo snapped into action, selling Gorsuch's nomination, as he did on this Catholic television network, EWTN.

(SOUNDBITE OF ARCHIVED RECORDING)

LEONARD LEO: Our Constitution is premised on the idea that liberty, human life - those are inextricably intertwined with. The structural protections of our Constitution, the separation of powers, federalism, limits on government power - This is what Neil Gorsuch's judicial career has been all about.

CHANG: And it didn't end with Gorsuch.

(SOUNDBITE OF MONTAGE)

TRUMP: Well, in just a few moments, we will proudly swear in the newest member of the United States Supreme Court, Justice Brett Kavanaugh.

(CHEERING, APPLAUSE)

TRUMP: ...Supreme Court, Justice Amy Coney Barrett.

(CHEERING, APPLAUSE)

CHANG: All three of Trump's Supreme Court nominees - Gorsuch in 2017, Kavanaugh in 2018, and Barrett in the waning days of the 2020 presidential campaign - all of them had been on the list at one point or another. And all of them sided with Justice Samuel Alito in that leaked draft opinion overturning Roe v. Wade, according to Politico. Leo helped pave the road for each of their confirmations, as he did for Kavanaugh here on CBS...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #2: Should we be worried about Roe v. Wade going away?

LEO: I don't think people should be worried about Roe v. Wade or any other particular case. I think they should be worried about having judges who are really going to interpret the law as it's written.

CHANG: ...And on NPR.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

LEO: Here's the bottom line - the conservative legal movement doesn't believe in an outcome-driven approach to judicial decision-making.

NOEL KING: It doesn't?

LEO: No, it doesn't. I mean, there may be people who, in their personal lives, oppose or favor abortion, oppose or favor gun rights. But at the end of the day, it's very dangerous to have a court that's outcome-driven. What you...

CHANG: In both of these interviews, Leo highlighted a core philosophy that he has said should drive judicial decision-making, and that is textualism. Here's Ruth Marcus again.

MARCUS: The thing that's important to understand about Leonard Leo is his vision of judicial conservatism, of hewing closely to the text of the Constitution - a vision of not discerning in the grand phrases of the Constitution individual rights that aren't expressly stated.

CHANG: An individual right not expressly stated in the Constitution - the right to abortion. Marcus says when it comes to Leo's opposition to abortion rights, his legal reasons go hand in hand with personal reasons rooted in his faith.

MARCUS: His Catholicism, in addition to his conservatism, is the other really animating strain. He is a man who has gone to daily mass since his oldest daughter, who was born with spina bifida, died in 2007. And he is a very, very serious Catholic.

CHANG: The likely overturning of Roe v. Wade is a result of a long game that has made Leonard Leo one of the most important gatekeepers to the federal bench for ambitious conservative lawyers.

MARCUS: He has transformed himself, and especially during Republican administrations, into the power broker, the judge-maker. People would go to people who knew him and say, can you get me in to see Leonard? Can you help me with Leonard? When Brett Kavanaugh's clerks were trying to make sure he got on Donald Trump's list to be on the Supreme Court, they made a pilgrimage to the Federalist Society to see Leonard Leo.

CHANG: Because they knew...

MARCUS: 'Cause they knew...

CHANG: ...They kind of had to kiss the ring.

MARCUS: Kiss the ring - and he's the man you have to see.

CHANG: And to wield this kind of power in Washington, you need to be able to raise money - lots of money.

MARCUS: Now confirmation proceedings have aspects of political campaigns, and that means that they cost money.

CHANG: And raising money is something Marcus says Leo is very, very good at.

MARCUS: He had a singular knack for coaxing huge checks out of billionaire donors.

CHANG: A Washington Post analysis found Leo and his allies raised $250 million between 2014 and 2017. And a chunk of that money has gone directly to campaigns to drum up support for judicial confirmations - campaigns that include commercials like these.

(SOUNDBITE OF MONTAGE)

UNIDENTIFIED PERSON #3: As a scholarly community, we have a wide range of political views.

UNIDENTIFIED PERSON #4: We are united, however, in our judgment about Amy.

UNIDENTIFIED PERSON #5: Supreme Court nominee Brett Kavanaugh has earned respect from both sides of the aisle.

CHANG: Sheldon Whitehouse is a Democrat from Rhode Island. And as a member of the Senate Judiciary Committee, he has the task of voting for or against Supreme Court nominees. He has opposed each of the Trump nominees Leo has promoted. And Whitehouse says Leo has used a complex network of donors to ensure that nominees he favors make it to the high court.

SHELDON WHITEHOUSE: In my view, it has created a captured court that makes decisions based on who they want to win and imports into what should be the high temple of the law the mischief associated with, you know, 19th century railroad commissions and other administrative bodies that get taken over by special interests.

RON BONJEAN: No. No. It's a partisan criticism of the fact that Republicans were able to confirm Supreme Court justices, and that probably does not sit well with Sheldon Whitehouse.

CHANG: OK. This is Ron Bonjean. He was a communications strategist during Neil Gorsuch's confirmation process. And like many conservatives, he takes issue with Whitehouse's characterization that conservative interests have, quote, "captured the Supreme Court."

BONJEAN: The Democrats have their own political levers and their own political organizations that they stand up and that they fund millions of dollars to try to define nominees just as well as we try to.

CHANG: And Leo himself told The Washington Post that there is nothing wrong with rich donors funneling their resources into causes they believe in.

(SOUNDBITE OF ARCHIVED RECORDING)

LEO: Let's remember that in this country, the abolitionist movement, the women's suffrage movement, the American Revolution, the early labor movement, the civil rights movement of the 1950s and 1960s were all very much fueled by very wealthy people and oftentimes wealthy people who chose to be anonymous. I think that's not a bad thing. I think that's a good thing.

CHANG: In the coming days, the U.S. Supreme Court will issue a ruling in Dobbs v. Jackson Women's Health Organization. And if that ruling overturns a federal right to abortion, three of the justices expected to join in that opinion appeared on the list that Leonard Leo personally curated.

MARCUS: This is a moment that Leonard Leo has been working towards hard and diligently and fervently because he's a true believer. The right to abortion, I know he believes is not in the Constitution. The practice of abortion, I know he sincerely believes is the taking of a human life. And if this is what you've dedicated yourself to for the last 30 or 40 years, imagine what this moment feels like to you. It's a moment that feels like victory.

CHANG: We never got to ask Leonard Leo what this moment actually feels like for him. We asked several times for an interview. He never agreed to one. But no matter how Leo feels about this moment, it will have lasting consequences for the rest of the country.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.