Reporter 1: The Court has ruled that states can decide whether abortion should be legal or illegal.
Speaker 1: Roe v. Wade is history.
Brooke Gladstone: The conservative majority on today's Supreme Court has been redefining Americans' constitutional rights in one decision after another, and one largely unknown man has played an outsized role in making it so.
Ginni Thomas: Leonard Leo has single-handedly changed the face of the judiciary.
Brooke Gladstone: This is On The Media. I'm Brooke Gladstone. This week, an investigation into the man who spent decades working toward a conservative takeover of America's courts. Because this is about way more than just the US Supreme Court.
Amanda Hollis-Brusky: The Right's revolution in the United States didn't happen just because you magically got five justices on the Court who agreed with you.
Brooke Gladstone: It's all coming up after this. From WNYC in New York, this is On The Media. I'm Brooke Gladstone.
Marshal of the Court: Oyez, Oyez, Oyez.
Brooke Gladstone: Next week on the first Monday in October, the Supreme Court will be open for business.
Marshal of the Court: God save the United States and this Honorable Court.
Brooke Gladstone: Whatever the Court decides in the upcoming term, the body led by Chief Justice John Roberts has already radically changed American life.
Reporter 2: We begin tonight with the Supreme Court striking down affirmative action and reshaping college admissions.
Reporter 3: The Court's conservative majority has struck down President Joe Biden's plan to forgive $400 billion in student debt.
Reporter 4: The justices ruled in the family's favor, weakening the water pollution law.
Reporter 5: The Supreme Court's conservative majority ruled that a Christian graphic artist who wants to design wedding websites can refuse to work with same-sex couples.
Reporter 1: In a 6-3 decision written by Justice Samuel Alito, the Court has ruled that states can decide whether abortion should be legal or illegal.
Speaker 1: Roe v. Wade is history.
Brooke Gladstone: And now a quick recap of how we got here. The Court's current 6-3 conservative majority that helped deliver those rulings was the product of long-term planning, tens if not hundreds of millions of dollars, and luck. The full story runs far deeper than that, and a lot of it can be traced back to one man who's marshaled a vast effort to change who serves on the Court, what cases they hear, and how they rule.
Stephen Minnis: Although Mr. Leo may not be a household name, his influence on America is almost unbelievable.
Brooke Gladstone: In May of 2023, Leonard Leo was the commencement speaker at a small Catholic college in Kansas. Benedictine College President Stephen Minnis rhapsodized about Leo's behind-the-scenes role in confirming all six conservatives currently on the US Supreme Court.
Stephen Minnis: But more importantly than the wins, it is those Justices, Thomas, Alito, Gorsuch, Kavanaugh, Barrett, who he helped to get into place, that were able last year to accomplish what the pro-life movement had been working and praying for nearly 50 years to finally, unequivocally, overturn Roe v. Wade.
Brooke Gladstone: If you have heard his name before, it's likely as the man behind the list of potential Supreme Court nominees presented to Donald Trump during his 2016 campaign for president. In 2018 during the confirmation battle over Brett Kavanaugh, Justice Clarence Thomas joked about Leo's influence.
Justice Clarence Thomas: Now, Leonard, since you're the number three most powerful person in the world, we have to--
Leonard Leo: Right. God help us. God help us.
Brooke Gladstone: Thomas didn't share who he thinks are the top two. Leo and Thomas were speaking at a conference hosted by the Federalist Society, an outfit founded in 1982 that promotes conservative readings of the law. Leo is now co-chair of the board. He's also helmed or been involved with over a dozen political nonprofits, runs a business, and has advised Presidents George W. Bush and Donald Trump. About a year ago, Leo won a prestigious award from a major Catholic group. His faith has informed his political philosophy, his conservative movement is ascendant, but Leo sounded besieged.
Leonard Leo: Catholicism faces vile and immoral current-day barbarians, secularists, and bigots. These barbarians can be known by their signs. They vandalized and burnt our churches after the Supreme Court overturned Roe v. Wade. From coast to coast, they are conducting a coordinated and large-scale campaign to drive us from the communities they want to dominate.
Brooke Gladstone: Now, as reported by ProPublica in March, Leo has designs on much more than the makeup of the Supreme Court. Here's Leo in a promotional video unearthed by ProPublica.
Leonard Leo: I spent close to 30 years, if not more, helping to build the conservative legal movement. And at some point or another, I just said to myself, "Well, if this can work for law, why can't it work for lots of other areas of American culture and American life where things are really messed up right now?"
Brooke Gladstone: And as was also reported by ProPublica, Leo has the money to turn words into action.
Reporter 6: In a stunning exposé, ProPublica and The Lever have revealed how Barre Seid, a 90-year-old conservative industrialist from Chicago, has given his fortune to a nonprofit run by Leonard Leo.
Brooke Gladstone: $1.6 billion. The broad outlines of what Leo has accomplished so far are now known, but the details are harder to see. The extent to which his influence has reached throughout the legal system and into the states, how he planted the seeds decades ago, how he exercised bare-knuckled power when needed, even once threatening that a sitting governor could face the "fury of the conservative movement." There are a lot of moving parts to this story.
That's why we teamed up with ProPublica to produce an investigative series we're calling We Don't Talk About Leonard. ProPublica's Andrea Bernstein, Andy Kroll, and Ilya Marritz will be our guides. Andrea and Ilya were co-hosts of the podcasts Will Be Wild and Trump, Inc., and are both former WNYC colleagues. Andy Kroll is an investigative reporter for ProPublica, and author of a book about the murder of Seth Rich called A Death on W Street. The first episode is reported by Andrea and Andy.
Andrea Bernstein: To get to Northeast Harbor, Maine, you drive down from the mainland across a bridge and onto an island shaped a bit like a lobster claw, then south to a small cove with a long dock jutting out. It's summer. Day is turning to evening, but the sun is still high, glinting off blue-green water. The smell of lupine wafts down to the rocky shore. It's June 23rd of 2023. Andy and I have come down here to meet Alison Schaefer.
Andy Kroll: Check, one, two.
Andrea Bernstein: Okay, we're good.
Andrea Bernstein: Schaefer, who's a summer resident here, wants to tell us about something unusual she saw a year ago this very evening when she was walking her dog on the dock.
Alison Schaefer: The sun was setting, it was warm out, it was nice out, and we came down and walked past this fleet house and onto the dock and down to the floats so we could look around and see what was going on on the ocean, which is not generally very much.
Andrea Bernstein: Something caught her eye.
Alison Schaefer: One of those small little RIBs. It's like an inflatable boat- they're inflatable boats, but they're very solid and they go really fast. They're planing hulls, so they kind of bounce over the waves.
Andrea Bernstein: A 29-foot Response Boat with a bright trim and very clear lettering: US Coast Guard.
Alison Schaefer: First of all, there are not ever Coast Guard boats here, ever.
Andrea Bernstein: Also, it had its engines on.
Alison Schaefer: Which struck me as odd because it seemed like such an emergency stance, like they'd have to respond to something, stat.
Andy Kroll: Someone else saw the boat that evening. Another summer resident, a financial consultant named Francis Weld. He saw federal agents patrolling, he told us, with guns slung kind of perpendicular to their bodies. Standing on the dock a year later, Schaefer points across the water to a wide green lawn leading up to an 11-bedroom Tudor-style mansion. It's Leonard Leo's house.
Alison Schaefer: It happened to be the night that Leonard Leo was having a party, and he had a big white tent, quite fancy structured tents like people have for weddings. You could hear the party, the clinking glasses, low hum of conversation, that kind of thing.
Andrea Bernstein: On the patio, there's a rowboat filled with ice and sparkling water and Pol Roger Reserve champagne. Each guest is handed a freshly poured glass. A sommelier has selected three more wines to go with dinner. He was the former food and beverage director for the Trump Hotel in Washington, DC.
All around the party, at the end of the dock, by the champagne boat, in the house, there's security wearing dark suits, earpieces. US Marshals are protecting high-profile members of the judiciary, and at this party, there are some two dozen federal and state judges from across the country, the US Marshals Service told us. There's a former White House counsel C. Boyden Gray, leading conservative academics, and the leadership of George Mason University's Antonin Scalia Law School. It's an intellectual hub for training conservative lawyers and judges and advancing a free market, anti-regulation agenda.
Andy Kroll: Unlike the judges in attendance who preside over their courtrooms like personal fiefdoms, Leo has never served a day on the bench. Unlike the other lawyers, he's never argued a case in court. He's never held elected office, or a senior White House appointment, or run a law school. On paper, he's less important than almost all of his guests, but at this event, someone who was there told us, "A lot of people are trying to talk to Leonard Leo." He's a squat man with owlish glasses and an elegant suit.
The judges have come to Maine for a week-long conference about conservative legal and economic principles, sponsored by the Antonin Scalia Law School. It was Leo who secured permission from the Scalia family to name the school after the late Supreme Court Justice, and it was Leo who raised the tens of millions of dollars that helped bring the school to newfound prominence.
Andrea Bernstein: Some of the most influential and controversial federal and state judges are in Maine for the Scalia Law conference, and many of them do owe or could owe career advancement to Leonard Leo. There's Third Circuit Judge Thomas Hardiman, whose name was on Leo's list of potential Supreme Court nominees for President Trump. He's been described as a Second Amendment extremist. There are Trump appointees, Federalist Society members whose names were vetted by close Leo allies in the White House. Two members of the Fifth Circuit Court of Appeals, Kyle Duncan and Cory Wilson, both fiercely anti-abortion. Wendy Berger, the Florida federal judge who would uphold Governor Ron DeSantis' so-called Don't Say Gay law. Also there, North Carolina State Supreme Court Justice Phil Berger, Jr. No relation. On the night of the party, he's in the minority on that state's highest court, but a group funded by Leo is spending big money to change that. They'll succeed, and in January of 2023, swing North Carolina's Supreme Court to the Right.
After the champagne pouring, there's dinner, but the guests keep asking for champagne. The vibe was, "Let me show you the best of the best for my friends," a person who was there told us. When the guests sit down, there are menus with raised seals dusted with gold. Leo makes remarks, so does Henry Butler, the former Dean of Scalia Law School. They express mutual admiration. Their accomplishments couldn't have happened without each other. The mood is jubilant.
Andy Kroll: It's late June of 2022, and there's a lot for this crowd to celebrate. The Supreme Court has just handed conservatives a string of victories on guns and religion. And six weeks before the party--
Chris Hayes: A highly, indeed, as far as I can tell, utterly unprecedented leak from the Supreme Court.
Andy Kroll: A draft opinion by Justice Samuel Alito overturning the 50-year constitutional right to an abortion. It called Roe v. Wade "egregiously wrong from the start."
Andrea Bernstein: Inside the mansion, Leonard Leo and the judges and lawyers and the Scalia Law School leaders keep partying. There's a cheese course and a tasting of American rare whiskeys chilled with cold stones. One guest gets so tipsy, he needs help getting up a flight of stairs. The affair ends well into the night, much later than expected.
Judges Wilson, Duncan, Wendy Berger, and Justice Phil Berger, Jr. did not respond to requests for comment for this story. The sommelier hung up on us when we asked about the party. A spokesperson for George Mason University's Scalia School of Law confirmed the facts but declined to comment. When we shared our reporting with Leo, he didn't dispute it.
The morning after the party, June 24th, 2022, Americans learn that it's official, the US Supreme Court has overturned Roe v. Wade. When Leonard Leo steps out for his regular walk, it's into a world he has remade, and he's not done.
Brooke Gladstone: Coming up, Andrea and Andy go out and search of some biographical details to help paint a fuller picture of who Leonard Leo is today.
Snehal Shah: When you're that age, you want to be a baseball player or a policeman. Nobody says they want to be lawyers at 10 years old, but he did. [chuckles]
Brooke Gladstone: This is On The Media.
Brooke Gladstone: This is On The Media. I'm Brooke Gladstone. Welcome back to our series, We Don't Talk About Leonard. One of the reasons for that name is that so many people who have worked with Leonard Leo do not want to speak with ProPublica's Ilya Marritz, Andy Kroll, or Andrea Bernstein.
Andrea Bernstein: We reached out to hundreds and hundreds of people who had experiences with Leonard Leo, and so many just did not get back to us or wouldn't go on the record. At one point, deep into our reporting, we realized that requests to independent people seemed to be going straight to Leo's PR man.
Andy Kroll: Source after source told me that the reason we were having trouble finding people to talk about Leo is because Leo is funding basically everything. "Everything?" I remember asking in one conversation. "Not literally everything, of course, but you give a guy a billion and a half dollars, and he can bankroll an entire movement."
Andrea Bernstein: To give you a sense of how tightly Leo controls his PR, we put questions to three different groups that are part of this story: the Federalist Society, the Judicial Crisis Network, and Leo himself. They all have the same PR firm, which Leo is a part owner of. The Federalist Society and JCN did not respond.
Andy Kroll: We did find some people to talk to: childhood friends, colleagues, political associates, current and former judges, and attorneys general, some of whom you'll hear from in this series. We spoke to over 100 people who knew Leo on a personal level, worked with him, got funding from him, or studied his rise. Most didn't want us to use their names because they were worried about their careers suffering, or about losing access to donors in Leo's orbit.
Andrea Bernstein: When we asked Leo about this, he said in a statement, "I would assume many people didn't want to speak because they surmised, rightly or wrongly, that you would not be producing a balanced and objective story." We did not interview Leonard Leo. After months of discussions, Leo agreed to speak on the condition we not ask questions about his financial activities or relationships with Supreme Court justices. We declined.
Then we sent him a long and detailed list of questions and a second list of factual assertions. Leo did not correct the vast majority of them; where he did, we made adjustments. He also gave some comments. Leo says he's just trying to keep up with the strategy and spending on the Left. He told us, "To the extent that I have been successful at raising funds, it has been because the ideas I have tried to advance are compelling, and because I have always placed a premium on driving results through highly effective talent pipelines and infrastructure."
He said of his relationship with Supreme Court justices, "The justices who have served on the US Supreme Court since I first started working in Washington in the late 1980s, liberals and conservatives alike, are the most independent and resolute public officials I've known. I've never believed that the relationships or interactions they have outside the Court affects how they do their work."
Andy Kroll: We put this story together based on all of the on-the-record and background interviews we did, plus court records, tax filings, and documents we got from Freedom of Information Act requests. Now on with the story.
Andrea Bernstein: Leonard Anthony Leo was born on Long Island in 1965. His father, who was a baker, died when Leonard was young. His mother remarried an engineer and moved the family to Central New Jersey. This has been described to me as a place with an identity problem, where you weren't sure if your baseball team is the Yankees or the Phillies. I went to see Leo's childhood home. It's modest, one-story on a suburban street where the houses are close together. Leo attended Monroe Township High School, a public school.
Andrea Bernstein: Hi, how are you?
Andrea Bernstein: You can still find the 1983 yearbook at the town library. [whispers] Okay, I've got the '83 yearbook. I'm opening it up. The girls have big hair. Some of the boys have mustaches. They're dressed in t-shirts or polos. But there, smiling out from the top of the class page in a shirt and tie and gray blazer, is Leonard Leo. He is senior class president, National Honor Society vice president. His nickname is Moneybags Kid. He says it's, "Because I developed a number of fundraisers that resulted in a significant amount of money for our senior prom and senior trip, with money left over to donate to the high school."
The secretary of the class is Sally Schroeder, now Sally Leo. Leonard Leo shows up many times in these pages, but the picture catching my eye is the one illustrating Most Likely to Succeed. It's Leonard Leo and Sally Schroeder sitting at a table in front of a pile of cash. They're holding more in their hands, fanned out like cards. Superimposed in a lens of each of their eyeglasses, dollar signs.
Snehal Shah: I rarely, if ever, saw him in like casual wear. He was always well-dressed, especially at that age.
Andrea Bernstein: This is Snehal Shah, an engineer now, who says Leo was his best friend. From when they met in fourth grade, Shah says Leo wanted to be a lawyer.
Snehal Shah: When you're that age, you want to be a baseball player or a policeman or a fireman. Nobody says they want to be lawyers at 9 or 10 years old, but he did. [chuckles] If you're different at that age, you're going to get bullied a little bit. He was a smart kid. I was a smart kid too. I got bullied. Growing up, in elementary school, junior high, high school, he was probably more of an outcast than someone who was popular.
Andrea Bernstein: When Leo first ran for student government, Shah says, he lost, but then he learned from his mistakes. He won people over.
Snehal Shah: I think he did a better job of not letting the snobbishness come out.
Andrea Bernstein: Shah says he doesn't remember details of their discussions about politics, but--
Snehal Shah: He was always passionate about being anti-abortion. He was very steadfast in that belief.
Andy Kroll: After high school, Leo enrolls at Cornell, where he gets a bachelor's degree and a law degree in just six years, graduating in 1989. I spoke with a half-dozen of his classmates, and here's what I learned. Leonard Leo wore bow ties and a suit to class. No one else did. Many of them consider themselves liberal, but not Leo. Leo told us that as an undergrad, there was a professor in the Department of Government, Jeremy Rabkin, who shaped his views. Rabkin was a rare conservative voice on campus.
Prof. Jeremy Rabkin: The law schools are overwhelmingly tilted to the Left, certainly in the area of constitutional law.
Andy Kroll: This is Rabkin speaking at an event hosted by the conservative Claremont Institute. He points out that the overwhelming majority of justices on the US Supreme Court were appointed by Republicans.
Prof. Jeremy Rabkin: I don't think I'm communicating anything new to anyone in this audience, but let's just remind ourselves. A lot of these appointments were disappointing.
Andy Kroll: Rabkin says, you can't just have a Republican-elected official name a judge and then assume that judge will make the right, that is, sufficiently conservative decisions.
Prof. Jeremy Rabkin: Who was Sandra Day O'Connor? Sandra Day O'Connor was, to put it politely, nobody. There was no reason why people should have trusted that Ronald Reagan's first nominee to the Supreme Court was somebody that conservatives would be happy about.
Andy Kroll: Rabkin made this speech years after Leo graduated, but even back in the '80s, he was criticizing judges who in his view imposed Left-wing policies dressed up as judicial rulings. Rabkin declined to be interviewed for this story.
Andrea Bernstein: When Leo starts law school, there's a new national organization getting off the ground, the Federalist Society. Leo founds a chapter at Cornell. During this period, President Reagan nominates Robert Bork to the US Supreme Court.
Senator Ted Kennedy: In Robert Bork's America, there is no room at the inn for Blacks and no place in the Constitution for women; and in our America, there should be no seat on the Supreme Court for Robert Bork.
Andrea Bernstein: When the Senate kills his nomination, Borked becomes a verb.
Andy Kroll: One of Leo's classmates told me about watching a 1988 presidential debate with Leo. This classmate is complaining about the media's unfair treatment of Jesse Jackson, and Leo says, "Now you know how I feel with the people on my side."
Andrea Bernstein: After graduation in 1989, Leo marries Sally. They move to Washington, where Leo gets a clerkship on the US Court of Appeals. Clarence Thomas is one of the judges. They become lifelong friends.
Leonard Leo: Good afternoon. My name is Leonard Leo, and I am National Lawyers Division director of--
Andrea Bernstein: In this tape from the 1990s, Leo looks like the Jonah Hill character in Moneyball; very young, a full, dark head of hair. He keeps pushing his glasses up his nose.
Leonard Leo: I met Justice Thomas in September 1990 as a law clerk on the DC Circuit. Curious as it may seem, one of the first things I noticed upon entering his office was a small statue of St. Jude, who for centuries has been known to many as the patron saint of seemingly hopeless causes.
Andrea Bernstein: This is where Leo becomes a backstage producer in the play that you've already seen. He joins the White House team working on Thomas' nomination to the US Supreme Court. Leo's job is gathering research. Soon, that team is at an all-out fight to discredit Professor Anita Hill's allegations of sexual harassment.
Justice Clarence Thomas: From my standpoint as a Black American, as far as I'm concerned, it is a high-tech lynching for uppity Blacks.
Senate Speaker: The yeas are 52 and the nays are 48. The nomination of Clarence Thomas of Georgia to be Associate Justice of the United States Supreme Court is hereby confirmed.
Andrea Bernstein: Leo, galvanized by the confirmation battle, goes to work for the Federalist Society for the next 30 years.
Andy Kroll: You have the distinction of being a co-founder-
David McIntosh: Yes.
Andy Kroll: -of the Federalist Society. I almost want you to start there. Set that scene. I mean, I've never talked to one of the founders of that organization.
David McIntosh: Oh, really? Oh, okay.
Andrea Bernstein: Andy spoke to David McIntosh at the office where he now works at the Club for Growth. McIntosh says he considers Leo a good friend.
David McIntosh: We were all in law school, and Reagan had just become president. All of us thought, wouldn't it be great if we could have a conservative student group, one that's dedicated to debating what the role of the law is and role of judging?
Andrea Bernstein: The idea was this, elite law schools tilted Left. They were the in-crowd. They had a pipeline sending clerks and lawyers and justices to the US Supreme Court. In 1982, McIntosh and the others organized a conference at Yale.
David McIntosh: And everybody who came had a great time. The students did, the faculty that came [crosstalk]--
Andy Kroll: Was this in some auditorium or ballroom?
David McIntosh: It was at Yale at-- yes, classroom for part of it. I think we weren't even big enough to be in the big law school auditorium.
Andrea Bernstein: The preface to the transcript from that conference belittles professors who "dream of regulating from their cloistered offices every minute detail of our lives." FedSoc, as it becomes known, grows quickly. It hires an executive director, Gene Meyer.
David McIntosh: Gene came to us on the board and said, I want to hire Leonard Leo, here's his background. I got to know Leonard, immediately saw how talented he is.
Andrea Bernstein: That was 1991. As head of the Lawyers Division, Leo spends his first decade with the Federalist Society cultivating relationships with like-minded lawyers around the country and with people in government. McIntosh told us, Leo came to a realization; it takes political activity to nominate a justice.
David McIntosh: You've got to persuade a president that that's the type of justice he or she wants. You then have to persuade the United States Senate to confirm them. I think Leonard's talents there in organizing people who share his beliefs and having them advocate those is a key part of it.
Andrea Bernstein: When George W. Bush becomes president in 2001, Leo seizes the chance to become a bigger player. By 2003, the White House sees him as a key ally. His day job is still with the Federalist Society. One email among Bush aides points out Leo "is now helping to coordinate all outside coalition activity regarding judicial nominations." There's a book about the Federalist Society called Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. Pomona College political scientist, Amanda Hollis-Brusky, interviewed top Federalist Society leaders, including McIntosh, for the book. The title refers to the organization's mantra; ideas have consequences.
Amanda Hollis-Brusky: But more importantly, that policy is people, right? You have to connect those ideas to the right people who have access to the levers of power to make it happen. Leonard Leo is the policy-is-people guy. When Leonard Leo comes in, it becomes less about creating a sort of pipeline and a counter-elite with their own ideas and shared vision of the Constitution. It becomes about plugging that in very consciously to power.
Andrea Bernstein: Hollis-Brusky noticed something about Leo.
Amanda Hollis-Brusky: Through the course of interviews with other Federalist Society folks, it became clear that the president of the Federalist Society was more of a symbolic figurehead, whereas the real power in the organization was with the vice president, Leonard Leo.
Andrea Bernstein: One top Republican strategist told us, his key to success in Washington is that he doesn't have the typical Washington ego. He's a real cause guy, he's just in it for the cause. In this lead-from-behind role, Leo cultivates wealthy conservative donors, which makes him important to the White House, which in turn, makes him important to the donors, and the less people know about what he's doing, the more he can get done. One of the ways he organizes is by hosting powerful people, bring them together over food and wine and their commitment to conservative causes.
David McIntosh: He has very good taste-
Andrea Bernstein: Federalist Society, co-founder David McIntosh.
David McIntosh: -and opinions about food and wine, but he's solicitous of his guests and really makes you feel this sense of warmth. That he cares about you. He wants you to enjoy the same things he's enjoying and to be part of, in the moment, a larger sense of enjoying a great meal.
Andrea Bernstein: When Leo invited people to work with him, it was the same.
David McIntosh: And be part of a coalition of people that are aiming at that same goal for liberty and constitutional order. It's a collegiality that the public image doesn't show.
Andrea Bernstein: On a cold night in Washington in 2004, shortly after Bush was reelected, that collegiality suffused a private dinner at an upscale Italian restaurant. The meal came at a turning point in American political life, the founding of a little-known group that would become immensely powerful. The dinner went under the radar for years until Peter Stone of The Daily Beast and Viveca Novak of the nonpartisan group OpenSecrets figured it out.
Viveca Novak: At this dinner in 2004-
Andrea Bernstein: Viveca Novak.
Viveca Novak: -you had Leo, you had Scalia, you had Robin Arkley, you had other big donors. Scalia was obviously the headliner and the draw for the dinner.
Andrea Bernstein: It's a celebration. Robin Arkley II is a major Federalist Society donor from California. He owns a mortgage servicing company. He gets a prime seat next to Justice Scalia.
Viveca Novak: It was right around that time that JCN was started.
Andy Kroll: JCN, the Judicial Confirmation Network. Like the Federalist Society, JCN is a nonprofit but it's a different kind, the kind that is allowed to be involved in partisan politics and without disclosing its donors; a big advantage for the kind of behind-the-scenes work Leo is doing. In response to our questions, Leo confirmed that he helped launch JCN.
Viveca Novak: He was hanging around with a lot of deep-pocketed donors who were involved in the Federalist Society, and he realized that these kinds of groups could be very helpful.
Andy Kroll: Groups like JCN.
Viveca Novak: What you had was kind of a daisy chain where donors were giving money to one group, the group didn't have to disclose its donors. They'd give money to another group, that group didn't have to disclose its donors.
Andy Kroll: As Novak came to learn, Leo, in his role as Federalist Society vice president, was cultivating donors for the Federalist Society and also cultivating donations that flowed to JCN.
Viveca Novak: He was certainly a broker. He was the guy who orchestrated these sorts of events; the donations, where the donation should go, how they should be spent. He's the brains behind the operation.
Andrea Bernstein: We got an email from Robin Arkley, the early JCN donor. He told us, "Nothing has been more consequential in transforming the courts and building a more impactful conservative movement than the network of talented individuals and groups fostered by Leonard Leo. The agenda of the Left can no longer take success for granted." Over the dinner where he was seated next to Scalia, Arkley wrote that Leo was "always introducing me to people I admired, like Justices Scalia and Alito, engaging with such accomplished intelligence and, most of all, compassionate Catholics, impacted how I see the world and I am thankful for it."
One more thing about Leo's role with JCN. It's informal. He's not on the board or in any of the paperwork, but you can trace his ties. Board members and contractors and donors lead back to him. Sometimes JCN hires or gives money to or gets money from groups that Leo runs or supports. In his statement to us, Leo did not dispute any of this.
Since its founding, JCN has changed its name twice. The money flows are hard to track and hard to describe, but one thing is clear, JCN is a key component of Leo's machine. In his answers to our questions, Leo confirmed that JCN has been an integral part of his efforts to build a more conservative judiciary. In 2021, nearly all of JCN's revenue came from a group that is entirely controlled by Leo. We don't have numbers for any years after that. In July of 2005, Leo and JCN have their opportunity to work on a US Supreme Court nomination.
Andy Kroll: Justice Sandra Day O'Connor resigns; President Bush nominates John Roberts.
Steve Schmidt: I was flying back from somewhere with Cheney on Air Force Two and I got called forward to the cabin, and there were these two giant duffel bags and they were filled with binders.
Andy Kroll: This is political operative Steve Schmidt. Schmidt was tasked with reading through the binders on potential Court nominees. At the time, he worked in the White House as a deputy assistant to President Bush.
Steve Schmidt: I was leading the two Supreme Court confirmations in the Bush administration for Chief Justice Roberts and Justice Alito.
Andy Kroll: He calls a meeting with key stakeholders. It's held in the Eisenhower Executive Office Building adjacent to the White House. That's where Schmidt meets Leo. At first, Leo was just one of the crowd, but then Schmidt gets a read on him.
Steve Schmidt: If you take it down to like a school committee, like the PTA committee, who's going to be the chairperson of the committee? It's going to be the person who cares the most and shows up to all the meetings. This is what Leonard Leo did.
Andy Kroll: JCN treats the confirmation battle like a political campaign with ads.
Steve Schmidt: You're making TV ads, you are trying to communicate, trying to make sure that no one is getting wobbly on you, right? I can't explain to you why this stuff works, but it does.
Andrea Bernstein: I'm just curious, though, like you're the guy in the White House, you're responsible for getting this through the Senate. Here's the Judicial Confirmation Network. That was clear to you that this was a group associated with Leo, that he was [crosstalk]--
Steve Schmidt: Yes, 100%. Leonard was the guy.
Andrea Bernstein: That's the behind-the-scenes part. Publicly, there's just a glimpse Leo was involved.
Leonard Leo: Judge Roberts did a fine job today.
Andrea Bernstein: He speaks to the press after Roberts testifies. There's Leo, hair cropped short, glasses well-fitting.
Leonard Leo: We are very happy with the way today went and--
Andrea Bernstein: The next nomination is choppier. Bush nominates his counsel. Her name is Harriet Miers. Conservatives, Leo's allies, suspect Miers is not firm enough on abortion. Leo publicly defends the President. Bush ultimately withdraws her nomination and picks a hard-Right conservative from New Jersey.
President George W. Bush: I'm pleased to announce my nomination of Judge Samuel A. Alito, Jr. as Associate Justice of the Supreme Court of the United States.
Andrea Bernstein: Democrats push back, but JCN gears up again, running pro-Alito ads, shoring up specific senators' support.
Ad Voice: You know who they are, the folks who sue towns for putting up nativity scenes and menorahs. Now these extremist groups want our senators to vote against Judge Alito for the United States Supreme Court.
Andrea Bernstein: The nomination passes the Senate 58 to 42. The Moneybags Kid had arrived.
Leonard Leo: It is a pleasure to stand before 1,500 of the most little-known and elusive of that secret society or conspiracy we call the Federalist Society.
Andrea Bernstein: This is Leo at a Federalist Society gala soon after Alito is confirmed. Long before the term was coined, his speech sounds like he's owning the libs.
Leonard Leo: Thanks so very much for your support and involvement. You may pick up your subpoenas on the way out.
Brooke Gladstone: Coming up. After Alito's nomination, there would be no more US Supreme Court nominees for the remainder of Bush's presidency, so Leo and the Federalist Society turn their attention to the state supreme courts.
Michael Wolf: It's not enough to own a House and own a Senate and own a governor. We've got to own the courts too. It is a power grab. There's no question about that.
Brooke Gladstone: This is On The Media.
Brooke Gladstone: This is On The Media. I'm Brooke Gladstone. You're listening to We Don't Talk About Leonard, a series made in collaboration with ProPublica. Before the break, we heard how Leonard Leo helped pull the United States Supreme Court's center of gravity to the Right, but he didn't rest on those laurels.
Amanda Hollis-Brusky: The Right's revolution in the United States didn't happen just because you magically got five justices on the Court who agreed with you.
Brooke Gladstone: Pomona College Professor Amanda Hollis-Brusky says the highest court in the land didn't come to their recent controversial rulings by chance.
Amanda Hollis-Brusky: You needed the scaffolding for these new constitutional frameworks, and you need a broader political culture that looks at these ideas and looks at these decisions and doesn't see them as totally wacky and off-the-wall.
Brooke Gladstone: One of the big ways to inject ideas into the judicial ecosystem was from the state supreme courts. Andrea Bernstein takes it from here.
Andrea Bernstein: The 2007 edition of the Federalist Society Annual Report gushes about some "very exciting developments," including the implementation of the State Courts project.
Leonard Leo: Some of you may be wondering, why are we here talking about the merits of electing judges, and why are we here talking about state supreme courts?
Andrea Bernstein: This is Leo at a Federalist Society forum from around that time.
Leonard Leo: State supreme courts and state courts are an incredibly important part of the American jurisprudential scene. In fact, one can very ably argue, I think, that state supreme courts are in many cases where the rubber really meets the road.
Andrea Bernstein: Leo travels around, making speeches and moderating forums.
Leo: Somewhere in the neighborhood of 95% to 98% of all litigation takes place in the state courts. I dare say that many of you in this room when you're practicing law may end up trying or arguing one of your most important cases, if not your most important case, before a state supreme court or in some part of the state court system.
Andrea Bernstein: The Federalist Society puts its money where its mouth is. While Leo is making these speeches, the group spends one and a half million dollars, nearly a fifth of its budget, on its state court efforts, tax returns show. The Judicial Confirmation Network is also about to get "heavily involved" in state supreme court nominations, according to its tax returns. There's one state that's particularly important, Missouri. There's a reason for that. I got someone to explain.
Michael Wolf: [chuckles] Michael Wolf, former Chief Justice of the Missouri Supreme Court.
Andrea Bernstein: He served on the Court from 1998 to 2011. Missouri has a system for selecting justices. It's called the Missouri Plan.
Michael Wolf: This proposal, that basically became the Missouri Plan, became the Missouri Plan because Missouri was the first state to do it, and it's been copied more or less in various forms in more than 30 states. It was a big deal. I think if you could beat the Missouri Plan in Missouri, you could tell the rest of the states there is no more Missouri Plan.
Andrea Bernstein: To avoid politics in judicial selection, Missouri has relied on a nonpartisan commission of lawyers, gubernatorial appointees, and the Chief Justice to screen candidates for the state's high court.
Michael Wolf: The commission screens those candidates, sends three candidates to the governor, and the governor has to appoint one of those three.
Andrea Bernstein: The system was put in place in 1940 and stayed mostly untroubled until 2007. That's when Leo and his allies get involved. They say the Missouri Plan produced judges who were too far to the Left. They won elections.
Michael Wolf: It's not enough to own a House and own a Senate and own a governor. We've got to own the courts too, so that is- it is a power grab. There's no question about that. That's the way you control the Court.
Speaker 2: Please give a warm welcome to Governor Matt Blunt, Governor state of Missouri.
Andrea Bernstein: In the summer of 2007, Missouri is a purple state with a 36-year-old centrist Republican governor, Matt Blunt. He's the scion of a Missouri political family. His future in politics is bright.
Governor Matt Blunt: I have to say, I do want to thank you for the opportunity, though, to visit with members of the Federalist Society and--
Andrea Bernstein: He ticks off decisions the Missouri Supreme Court made that he doesn't like.
Governor Matt Blunt: Just last year, the Court struck down a voter identification law. December, the Court ruled that planned parenthood could keep nearly a million dollars it had received from state coffers in clear violation of Missouri's very clear ban on abortion funding.
Andrea Bernstein: Just before Blunt makes this speech, a vacancy has come up on the state's high court. The judicial commission is getting to work screening potential justices. Leonard Leo has been speaking to Federalist Society chapters in Missouri too. He's hosting polite, ostensibly nonpartisan forums in accordance with the Federalist Society's nonprofit status. That's public.
Privately, Leo is a lot more direct, partisan, and fierce. We know this because there are emails between Leo and Governor Blunt and Blunt's Chief of Staff, Ed Martin. The email records were obtained by the Associated Press as part of a 2008 legal settlement with the Missouri Governor's Office. Putting the pieces together years later, we found a revealing story about Leo's gloves-off approach, one that's never fully been told.
The panel is getting ready to give three names of possible state supreme court justices to Governor Blunt. Two are Democrats, out of the question. The third, Patricia Breckenridge, is a Republican, but Leo and his allies are alarmed. They don't think she's conservative enough. They collect research, they say, indicates she might not be unequivocally opposed to abortion, that she's too soft on crime.
Leo lobbies the Governor through his chief of staff Ed Martin. Leo shop sends negative research about Breckenridge to Martin who forwards it to the Governor. There are discussions about "framing up Breckenridge." Martin makes a request, could Leo send an email to Blunt, one that would appear "unsolicited"? Leo soon writes the Governor. "I was shocked to see the slate tendered by the commission the other day." Leo adds, "It would be very appropriate for you to carefully scrutinize the candidates, and if they fail to pass those tests, to return the names."
Scott Eckersley: The idea was if all three choices were equally distasteful, that there'd be a willingness to reject the panel, but it was kind of just this long shot.
Andrea Bernstein: Scott Eckersley was working as deputy counsel in the Governor's Office at the time. Leo and Federalist Society leaders pushed the idea, Eckersley and others told me, to discredit Breckenridge and spike her candidacy, then use that as leverage to upend the Missouri Plan. That's what Leo was pushing for.
Scott Eckersley: I think it was clear that they wanted to sell the Governor on rejecting the panel, which would've been a pretty out-of-character move for a pretty vanilla, run-of-the-mill type traditional Republican governor, which was what he was.
Andrea Bernstein: Word gets back to Leo, Blunt isn't going to reject Breckenridge. Leo let's loose. He writes to Martin, "If this is true and if this happens, there will be fury from the conservative base, the likes of which you and the Governor have never seen." Leo adds, "We on the outside need to decide who's on our team and treat them accordingly. On a personal note, you need to be very, very careful right now about sugarcoating the state of play. Your long-term reputation is on the line."
Martin writes a long response ending with, "I have no idea who your source is, and we have not made a decision." Leo ups the ante. He says that Governor Blunt will most certainly lose reelection "if he turns his back on this issue and thereby, turns his back on conservatives, and he will have zero juice on the national scene if he ends up picking a judge who is a disgrace." Leo does not get his way. He loses.
A person familiar with Blunt's thinking told me, Blunt felt if he didn't pick the best judge of the three, the commission would pick the worst judge of the three. This person said Blunt didn't feel threatened. Blunt approves Breckenridge. "I am sorry to let you down," Martin writes Leo. "You are a man who I admire so much and feel grateful to know." Leo responds, "Your boss is a coward, and conservatives have neither the time nor the patience for the likes of him." He adds, "It is shortsighted cowardice and leaves a big problem for many future generations of Missourians." A few months later, Governor Matt Blunt announces he will not run for reelection. He leaves politics.
Martin did not respond to ProPublica's request for an interview.
After their failure with Breckenridge, Leo, the Federalist Society, and the Judicial Crisis Network don't give up. JCN spends hundreds of thousands of dollars to convince the Missouri legislature to upend the Missouri Plan. They fail, but they'd be back. They'd learn from their mistakes. They'd come to spend tens of millions of dollars to boost their chosen judges and attorneys general all across the country, and they'd start winning, with profound implications for democracy.
That's next week in part two of our series, We Don't Talk About Leonard.
Brooke Gladstone: We Don't Talk About Leonard is made in collaboration with ProPublica. This series is reported by Andrea Bernstein, Andy Kroll, and Ilya Marritz, and edited by OTM executive producer Katya Rogers and ProPublica's Jesse Eisinger. Molly Rosen is the lead producer, with help from Shaan Merchant. Jennifer Munson is our technical director. Jared Paul wrote and recorded all the original music. Our fact-checkers are Andrea Marks and Hannah Murphy Winter. Our legal team is Ivan Zimmerman, Lauren Cooperman, Jeremy Kutner, and Sarah Matthews.
Andrea Bernstein: We'd like to say some thank yous to people who helped us report this story, but whose names you won't hear in the show. ProPublica's Eric Umansky, Jeremy Kohler, Megan O'Matz, Lynn Dombek, Doris Burke, Alex Mierjeski, Mariam Elba, Ken Schwencke, Ruth Talbot, Nick Lanese, Justin Elliott, Josh Kaplan, and Brett Murphy. Missouri journalists Tony Messinger, Jo Mannies and David Lieb. And Tom Carter, C. Boyden Gray, Robert McGuire, John Malcolm, Adam White, Lisa Graves, and Evan Vorpahl of True North Research. And Nick Surgey and the team at Documented. And the many, many current and former justices, judges, elected officials, Trump administration appointees, and others who spoke to us confidentially for fear of the consequences to their careers or livelihoods if we used their names in We Don't Talk About Leonard. Tracy Weber is the managing editor, and Steve Engelberg is the editor-in-chief of ProPublica.
Thanks for listening. I'm Andrea Bernstein.
Brooke Gladstone: I'm Brooke Gladstone.
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