AILSA CHANG, HOST:
These could be the last remaining days of a constitutional right to an abortion in the U.S. As soon as this week, the Supreme Court could rule on Dobbs v. Jackson Women's Health Organization. A leaked draft opinion in that case showed a majority of the court agreeing to overturn Roe v. Wade. So how did we get to this moment, and who brought us here? Well, you could say it's former President Trump. He did nominate three of the justices who signed on to that leaked draft opinion.
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DONALD TRUMP: The justices that I'm going to appoint will be pro-life. They will have a conservative bent.
CHANG: But if you ask Senate Minority Leader Mitch McConnell, he does give some credit to Trump, but he just frames it a little differently.
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MITCH MCCONNELL: Well, I think he took good advice. Honestly, he was not familiar with this issue at all.
CHANG: Remember; it was Mitch McConnell who blocked Merrick Garland, former President Obama's nominee to the Supreme Court in 2016. That held a seat open for one of Trump's nominees. And McConnell told NPR that he mainly credits Trump's White House lawyers for sending Trump great recommendations.
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MCCONNELL: People of like mind who came out of the Federalist Society network around the country. And so it was like a farm team of potential judges.
CHANG: The Federalist Society - it's a conservative legal organization with enormous clout on the political right. And whether you're looking to give credit or blame at this moment in Supreme Court history, a big chunk of it has to go to the Federalist Society and to the man who cemented the group's rise to power.
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UNIDENTIFIED PERSON #1: Please join me in welcoming Leonard Leo.
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CHANG: Leonard Leo, co-chairman and former executive vice president of the Federalist Society. For decades, Leo has worked to advance the organization's legal philosophy.
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LEONARD LEO: The idea that a judge to interpret the laws as it's written should apply to the original meaning of the Constitution.
CHANG: But his work - it's not just about ideas. It's about getting people with those ideas into key positions.
RUTH MARCUS: Identifying, promoting and working zealously to get confirmed lawyers in the federal and state and attorney general's offices but mostly in the federal judiciary.
CHANG: That is Washington Post columnist and author Ruth Marcus. In her book "Supreme Ambition: Brett Kavanaugh And The Conservative Takeover," she writes about the Federalist Society and Leonard Leo.
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: CONSIDER THIS - Leonard Leo has spent decades working to build a conservative majority on the Supreme Court. The justices he helped put on the bench might soon strike down a constitutional right to abortion that has stood for nearly half a century. From NPR, I'm Ailsa Chang. It's Tuesday, June 21.
It's CONSIDER THIS FROM NPR. Now, the draft Supreme Court opinion was just that - a draft. It's almost certain to change. But even if the court does not overturn Roe v. Wade outright, it could still issue a ruling that severely curtails abortion rights in many states. And many of the justices making that ruling are on the court thanks at least in part to Leonard Leo. And to fully understand how he came to have so much sway, you need to understand the list.
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UNIDENTIFIED REPORTER #1: Donald Trump unveiled a list of 11 jurists he would consider nominating to the Supreme Court if he...
UNIDENTIFIED REPORTER #2: We're just getting this list. We're looking through it. Now, some of these are names...
UNIDENTIFIED REPORTER #3: The 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: That is Washington Post's Ruth Marcus again. 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.
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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.
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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.
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TRUMP: Well, in just a few moments, we will proudly swear in the newest member of the United States Supreme Court, Justice Brett Kavanaugh.
Justice Amy Coney Barrett.
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.
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GAYLE KING: 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.
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.
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: Because 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.
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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.
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UNIDENTIFIED PERSON #2: As a scholarly community, we have a wide range of political views.
UNIDENTIFIED PERSON #3: We are united, however, in our judgment about Amy.
UNIDENTIFIED PERSON #4: 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 White House 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 which 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 are 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 billions 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.
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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.
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CHANG: It's CONSIDER THIS FROM NPR. I'm Ailsa Chang.
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