Bench Memos

Law & the Courts

Mistaken Attack by Andy Schlafly on Leonard Leo

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 (who also sits on the board of the think tank I head, the Ethics and Public Policy Center). So I was very surprised to read one of Andy Schlafly’s emails in support of his letter smearing various Supreme Court candidates whom his late mother Phyllis Schlafly took credit for putting on Donald Trump’s list and hailed as “top-notch.”

In that email, Andy Schlafly states: “Leonard Leo recently stated publicly that the intention is to pick someone who will merely uphold some regulations, and not overturn Roe.” Even more remarkably—and unlike in nearly all of his attacks on the Supreme Court candidates—Schlafly provided a hyperlink to an article by Bloomberg’s Greg Stohr that gives some apparent support for his proposition.

I’m pleased (but not surprised) to report that that apparent support is not real support, though this time I don’t fault Schlafly for the confusion. (Nor do I fault Stohr; misunderstandings happen.)

Here’s the text of an email (boldface added; hyperlinks substituted for URLs) that Leo sent to Stohr Wednesday evening:

It has come to my attention that a recent article of yours mischaracterizes comments that I made in my interview with you last month about President-elect Trump’s commitment to appoint Supreme Court justices who will vote to overturn Roe v. Wade. Specifically, this November 21 article of yours states:

A key outside adviser for Trump on court appointments, Federalist Society Executive Vice President Leonard Leo, suggested Friday that Trump might be envisioning a justice who upholds restrictions on abortion, rather than necessarily voting to overturn Roe.

‘There are lots of follow-on regulations to abortion involving partial-birth abortion, fetal pain and other issues that the court hasn’t fully resolved,’ Leo, who met with Trump on Thursday, said on the Bloomberg Law radio show. ‘When he talks about Roe v. Wade, that’s probably the way he’s thinking about it.’”

While I readily acknowledge that my comments were not as clear as they should have been, the full context of my remarks will show that I was not making the “suggest[ion]” that you attribute to me. Here’s a transcript of the relevant portion of your recording (roughly 2:35 to 4:50): 

“[You:] Leonard, let me ask you. Donald Trump was on 60 Minutes the other night, and he reiterated that he wants to appoint pro-life justices, justices who will vote to overturn Roe v. Wade. But at the same time he said that the one-year-old decision legalizing gay marriage is settled law. How is it possible to—I know you are somebody who doesn’t care about a bottom-line result. You care a lot about legal method and how a justice gets to a result. How is it possible that he might be able to appoint somebody who would hold both those thoughts?

“[Me:] Well first of all, I think the way Mr. Trump talks about the Court’s jurisprudence is shorthand and probably the way non-lawyers think about jurisprudence and the courts. So when he talks about the abortion issue, for example, I think what he is probably suggesting in a more casual way is that there will be abortion-related issues that have to be before the Court in the future. There are lots of follow-on regulations to abortion involving partial-birth abortion, fetal pain, and other issues that the Court hasn’t fully resolved. And so I think when he talks about Roe v. Wade, that’s probably the way he’s thinking about it.

“In terms of the Obergefell case and gay marriage, I think the marriage issue has been decided by the court last year. And in his mind, there may be other issues involving LGBT matters. But obviously the marriage issue has been decided, and it’s not as broad an area as some of the issues of abortion regulation that, to this day, still percolate through the courts.”

As you can see, in answering your question about how someone might vote to overturn Roe v. Wade but view Obergefell as settled, I pointed out how Roe (as modified by Planned Parenthood v. Casey) continues to generate lots of “abortion-related issues” for the Court. In other words, even after all these years Roe hasn’t settled things in a way that Obergefell might seem to have done.

Although my comments were not as articulate as I wish they had been (yes, I’ll plead serious sleep deprivation), I don’t think that, in the context of your question, they can be fairly construed as “suggest[ing]” that President-elect Trump “might be envisioning a justice who [merely] upholds restrictions on abortion, rather than necessarily voting to overturn Roe.” That wasn’t what your question asked about, and it wasn’t what I was addressing.

I’d be grateful if you’d modify your article to correct the mischaracterization. 

In an email later that evening, Stohr responded (emphasis added):

I thought long and hard about how to use your comments before I put them in. I agree with you that they aren’t especially clear. My thinking was that the fairest interpretation of the words that you used and I quoted was the interpretation I gave.…

But I appreciate your point about the context of my question, and I accept that it wasn’t your intention to convey what I said you suggested

(Leo and Stohr have given me permission to quote their exchange.)

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