Leo refused to comment on his personal views about the Bostock case, but defended Gorsuch’s conservative credentials. “Everything that Neil Gorsuch had written prior to Bostock strongly suggested that he was very committed to textualism,” he told me. Some conservatives may find Gorsuch’s approach overly literal, he said, but that’s just a matter for conservatives to debate. “Sometimes, originalists and textualists just misapply those doctrines,” he added. “That may make someone wrong. It doesn’t necessarily make them unprincipled. And there’s a difference.”
Bostock was just the beginning of bruising conservative defeats during this term. In June Medical Services v. Russo, the Court’s first big case on abortion since Trump was elected, Roberts cast the deciding vote to strike down a Louisiana law that regulated abortion providers. This was a “disaster,” Hawley tweeted. “It is a big-time wake up call to religious conservatives. We must make our voices heard. And time for [a] hard look at vetting & selection process.” This week, the senator told The Washington Post that he would only support Supreme Court nominees who had previously publicly stated that Roe v. Wade was wrongly decided.
As the term produced one defeat after another—on abortion, LGBTQ rights, immigration, and tribal affairs, conservative justices leading the way each time—the sniping from conservative commentators grew more pronounced. If these are the conclusions a majority-conservative Court comes to, they asked, is the conservative legal machine really as effective as Leo and his allies have claimed?
“There’s certainly going to be some areas that people are going to be disappointed with,” Leo said. But “if you look at where the Supreme Court is today, versus where it was 25, or 30, or 40 years ago, there’s no way that I would trade today’s Court.” Leo, who is in his 50s, has been an influential player in Republican judicial appointments for more than two decades. “We’re having a conversation about whether an application of originalism or textualism could be … botched, as opposed to whether originalism and textualism are abandoned altogether in favor of a more activist kind of overreach,” he said.
Leo defended the Trump administration’s vetting, which he says has been inclusive of religious conservatives. Historically, judicial vetting has been a “narrow, secretive, less transparent, less accountable process” with “scant records and very little broad public involvement in the debate about the selection,” he said. Trump made it clear who he was considering and gave all players in Washington plenty of time to determine whether his choices passed ideological muster. “I don’t know any religious conservative who, when aware of this history, would want to revert to the kinds of selection and vetting processes we had in the past,” Leo said.