One man's outsized role in shaping the Supreme Court and overturning Roe
Last Friday morning, life in America changed dramatically when the U.S. Supreme Court overturned half a century of the federal right to an abortion.
Most Americans support abortion rights, but a dedicated minority of conservative activists has been working for decades to dismantle Roe v. Wade, and one man in particular has played an outsized role in that effort: Leonard Leo.
Leo leads the conservative legal organization the Federalist Society, through which he has spent the majority of his adult life getting conservatives appointed to the most powerful courts in this country, including the Supreme Court.
"No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade than the Federalist Society's Leonard Leo," conservative writer and lawyer Ed Whelan wrote in the National Review.
To truly understand how we got to this moment and how Leo grew to have so much personal influence over who now sits on the nation's highest court, you must first know about "the list."
Former President Donald Trump was quick to take credit for the demise of Roe v. Wade on Friday.
In a statement released hours after the Supreme Court decision, he said it was only possible because he "delivered everything as promised, including nominating and getting three highly respected and strong constitutionalists confirmed to the United States Supreme Court."
Those three justices were Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — all of whom voted to overturn Roe. And all of whom were, at some point, on a much publicized list of potential SCOTUS nominees that Trump publicly shared.
A list that was personally curated by Leo.
What began with 11 names continued to grow and change throughout Trump's 2016 campaign and eventual presidency. The list helped Trump sway skeptical conservative voters who were unsure if he would represent their beliefs in office — especially anti-abortion beliefs, said Washington Post columnist Ruth Marcus, who has written about the Federalist Society and Leo in her book, Supreme Ambition: Brett Kavanaugh and the Conservative Takeover.
"It was a way of saying to conservative and evangelical voters, 'See, I'm one of you,'" she said.
It was also part of Leo and the Federalist Society's ongoing plan to change the makeup of the court.
"The Federalist Society is a one-stop shopping network for identifying, helping promote, credentialing, and supporting conservative lawyers. And in the end, turning them into conservative judicial nominees, and then conservative judges," Marcus said.
The Federalist Society's core beliefs lie in the ideas of textualism and originalism.
In a 2018 interview, Leo told NPR: "A judge should interpret the laws as it's written; should apply the original meaning of the Constitution."
According to Marcus, Leo's judicial conservatism is deeply rooted in his Catholic faith.
"It seems entirely clear that his personal religious convictions against abortion, believing that it's the taking of a human life, are entirely consistent with, and aligned with, and mutually supported by, his vision of constitutional interpretation," Marcus said.
The overturning of Roe v. Wade is the result of a long game that has made Leo one of the most important gatekeepers to the federal bench for ambitious conservative lawyers.
Marcus said conservatives seeking powerful judicial appointments have long known that Leo was "the man to see."
"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 ... to kiss the ring," she said.
That kind of influence and power in Washington rarely comes without a whole lot of money, which Leo has had a central role in raising for judicial nominees.
In recent years, confirmation proceedings have begun to resemble expensive political campaigns, often funded by a complex network of anonymous donors. And Leo is particularly skilled at drawing those kinds of donors to his cause. Marcus said Leo had "a singular knack for coaxing huge checks, some as large as eight figures, out of billionaire donors."
In an interview with The Washington Post, Leo said: "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."
A Washington Post analysis found Leo and his allies raised $250 million between 2014 and 2017 from undisclosed donors. And a chunk of that money has gone directly to campaigns to drum up support for judicial confirmations — campaigns that include commercials like this one.
Democrats like Rhode Island Sen. Sheldon Whitehouse, who sits on the Senate Judiciary Committee, strongly believe that anonymous donors should not have a role in shaping the federal judiciary.
"It has created a captured court that makes decisions based on who they want to win," Whitehouse said, likening the conservative strategy to shape the federal courts to "the mischief associated with 19th century railroad commissions and other administrative bodies that get taken over by special interests and suffer regulatory capture."
Ron Bonjean, who was a communications strategist during Neil Gorsuch's Supreme Court confirmation process, calls Whitehouse's view "a partisan criticism of the fact that Republicans are able to confirm Supreme Court justices."
"The Democrats have their own political levers and political organizations that they stand up and that they fund billions of dollars to to try to define nominees just as well as we try to," Bonjean said.
Since the Supreme Court decision came down last Friday, the clashing of emotions in this country has been palpable. We asked Leo for an interview in the weeks leading up to the decision, but he never agreed to one.
Marcus said this moment was the culmination of decades of effort.
"This is a moment that Leonard Leo has been working towards hard and diligently and fervently because he's a true believer," she said. "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."
Leo has never said his work to mold the federal judiciary was about overturning Roe v. Wade — he has maintained that it was about his commitment to upholding the U.S. Constitution. But it is clear that his dogged efforts to transform a recently liberal-leaning Supreme Court into a conservative-majority apparatus has resulted in just that.
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