What the Leaked Draft Opinion Means For the Conservative Legal Movement

WASHINGTON — In May 1987, Attorney General Edwin Meese III traveled to St. Louis and spoke before a group of clergy members opposed to abortion. Denouncing Roe v. Wade, the Supreme Court’s 1973 ruling on abortion rights, he told them that he saw reason to hope that “in our lifetimes” it would be thrown on “the ash heap of legal history.”

Thirty-five years later, a leaked draft opinion suggests that the Supreme Court’s conservative majority is poised to overturn Roe, permitting states to outlaw abortion. Liberals may be aghast, but for the conservative legal movement, of which Mr. Meese was a key early figure, a long-sought moment of triumph appears to be at hand.

“This will feel like a tremendous vindication for the conservative legal movement,” said Mary Ziegler, a Harvard Law School visiting professor and the author of several books about the anti-abortion movement and legal politics. “The movement goes beyond Roe v. Wade, but overruling it has become the preoccupation for the movement and the test of its success.”

If the Supreme Court does issue a final opinion that looks much like the leaked draft, one question the moment will raise is what the conservative bloc does next with its control over the judiciary. Already, for example, the court has decided to hear a case in its next term that will give it an opportunity to curtail race-based affirmative action in college admissions.

The libertarian faction within the movement wants to curb the power of the administrative state that grew up in the New Deal, limiting the authority of regulatory agencies. The cultural conservative faction is focused on religious freedom and the scope and limits of the rights of Americans who are lesbian, gay, bisexual or transgender — including lingering discontent with a 2015 ruling declaring a constitutional right to same-sex marriage.

Senator Elizabeth Warren of Massachusetts was among the Democratic lawmakers who expressed concern that the draft opinion would pave the way for other precedents to be overturned, citing the case that bars states from blocking same-sex couples from getting married, among others.

“It’s appalling because it doesn’t just chip a little piece off Roe v. Wade,” Ms. Warren said. “It takes a pickax to it and in doing so, it opens up the risk of losing a whole stack of other rights that we’ve come to depend on.”

But there is broad agreement that no issue has fueled the movement like abortion rights. Ed Whelan, a Justice Department lawyer in the George W. Bush administration and a conservative legal commentator, said a long-sought victory could signal a turning point.

“If Roe is the glue that held together the conservative legal movement, what happens when it is no longer playing that role?” Mr. Whelan said. “What other priorities will unify the movement? I am not sure what the answer to that question is.”

The conservative legal movement grew out of backlash to a series of liberal victories in Supreme Court rulings across a range of issues in the 1960s and 1970s. Conservative legal thinkers like the future appeals court judge Robert H. Bork began arguing that judges were usurping the role of legislators by interpreting the Constitution as a document whose meaning could evolve over time, and should instead strictly interpret it based on its text and original meaning.

Liberals countered that this approach was a cover for advancing conservatives’ own policy preferences. But the conservative legal movement began to take on political heft as the elite legal thinkers merged their mission with cultural and religious conservative voters who wanted abortion to be illegal and were outraged by Roe v. Wade.

“The legal conservative movement happened for reasons that were significantly separate from abortion, but the thing that gives them power in the Republican Party is their connection to this large, highly mobilized coalition partner” — rank-and-file religious conservatives, said Steven M. Teles, a Johns Hopkins University political science professor and the author of “The Rise of the Conservative Legal Movement: The Battle for Control of the Law.”

The movement took root in the 1980s. The Federalist Society — a network for legal conservatives — was founded on law school campuses and soon spread to chapters for working lawyers. And legal conservatives flooded into the Reagan administration working for figures like Mr. Meese, whose Justice Department became a sort of think tank for developing ideas like an originalist approach to the Constitution.

The Reagan administration began trying to vet judicial candidates more along ideological grounds than under previous Republican presidencies, nominating several starkly conservative jurists. That culminated in the battle over the failed Supreme Court nomination of Judge Bork — an outspoken critic of Roe v. Wade whom Democrats and some Republicans in the Senate saw as too extreme.

During their 12 years in power, the Reagan and George H.W. Bush administrations had five opportunities to appoint justices to the nine-member Supreme Court, raising the possibility that they could have installed a majority willing to overturn Roe a generation ago. But in a 1992 decision, Planned Parenthood v. Casey, the court instead reaffirmed a constitutional right to abortion.

The majority in that case included Reagan appointees like Sandra Day O’Connor and Anthony M. Kennedy and the Bush appointee David H. Souter. They turned out not to be strictly conservative in the mold of others appointed around the same time like Justices Antonin Scalia and Clarence Thomas, both of whom wanted to overturn Roe.

Calvin TerBeek, a University of Chicago political science graduate student who unearthed a copy of Mr. Meese’s 1987 speech in St. Louis for his dissertation, said the fallout from that case prompted the conservative legal movement to demand greater ideological vetting.

“O’Connor, Kennedy and Souter were Republicans first, rather than conservatives first,” Mr. TerBeek said. “That is why the conservative legal movement — especially places like the Federalist Society — have put such a premium on better predicting what a justice is going to do once they get on the court.”

Another milestone came in 2005, when the conservative legal movement helped scuttle Mr. Bush’s attempt to put Harriet Miers, his White House counsel and an associate from his days in Texas, on the Supreme Court. Conservatives balked because she lacked a paper trail showing engagement on issues important to the movement. The White House withdrew her and instead selected Samuel A. Alito Jr. — the author of the leaked draft opinion.

During Barack Obama’s presidency, the Federalist Society continued to mature, effectively credentialing a growing pool of movement conservatives awaiting the next Republican administration. Then in 2016, judicial appointments took on tremendous urgency when Justice Scalia died during a presidential campaign and Senate Republicans refused to give a hearing to Mr. Obama’s nominee to fill the vacancy, Judge Merrick B. Garland, who is now the Biden administration’s attorney general.

Meanwhile, Donald J. Trump was upending the Republican Party by trouncing establishment figures in its primary. A New Yorker on his third marriage who once described himself as “very pro-choice,” Mr. Trump was viewed with deep suspicion by many religious-minded conservatives. But he made a deal with the conservative legal movement to shore up Republican turnout.

To allay concerns that he would pick idiosyncratic judicial nominees, like celebrity lawyers he saw on television, Mr. Trump promised to make Supreme Court nominations from a list he released of conservative judges. The list was devised by his top legal adviser and future White House counsel, Donald F. McGahn II — a longtime Federalist Society member — working with advisers like Leonard Leo, then the group’s executive vice president.

Court-focused voters helped deliver Mr. Trump’s narrow Electoral College victory over Hillary Clinton, exit polls showed. And aided by the abolition of the filibuster rule in the Senate for judicial nominations, Mr. Trump fulfilled his end of the deal, putting forward a series of movement conservative nominees, including three justices — Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett. All appear to have given preliminary approval to overturning Roe, fulfilling the vision Mr. Meese, who is now 90, put before the clergy members in 1987.

“I think that releasing that list of names made it clear that Trump and his team actually understood what the conservative legal movement was doing,” said Carrie Severino, the president of the Judicial Crisis Network, which advocates on behalf of confirming conservative judges.

“The judgment of a lot of conservatives — that this next president will have a big impact on the direction of the courts via their nominees — has been vindicated by seeing that these justices are outstanding and committed to the original understanding of the Constitution,” she went on. “You can’t have a starker contrast with the sort of person Hillary Clinton would have been putting on the court — we wouldn’t be having this conversation today.”

Emily Cochrane contributed reporting.

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