The moment of mourning in Washington was as fraught as it was sad. The 2016 election to replace Obama was well underway, and the future of the Supreme Court suddenly became a live issue. Just hours after the funeral, Donald Trump clinched the South Carolina primary, cementing his place as the Republican front-runner for president. If he won the nomination, he would almost certainly face off against Hillary Clinton, the longtime enemy of the antiabortion movement. In an extraordinary break of congressional norms, Mitch McConnell, the Republican Senate leader, had already decided to take no action on the open seat, refusing to hold hearings and effectively blocking Obama from filling the spot with one of his nominees. The next Supreme Court justice, vowed McConnell, would be chosen by whichever candidate—likely Clinton or Trump—won the election.
Before Scalia died, the court was tilted toward justices who generally leaned toward a constitutional right to abortion by a 5–4 split. To Leonard Leo, the outcome of the election could herald the continuation of America’s decay, or it could be the seed of the court’s rebirth. If Clinton won, her Supreme Court nominee would presumably secure an abortion-rights majority—a wall of support for Roe that would be difficult to overcome for at least a generation. If America picked a Republican president, conservatives could maintain the current divide and maybe, over the course of his term, get another seat or two that could flip the court more starkly in their favor.
As Marjorie Dannenfelser watched Trump’s poll numbers rise, she began to worry. Somehow this reality television star had transformed from a laughingstock to a candidate who dominated polls, cable news coverage, and the debate stage, dwarfing all her preferred options. She and other antiabortion leaders did not know Trump well. But what they did know, they did not like.
His position on abortion had shifted repeatedly over the years. In 1989, long before he seriously entered politics, he hosted a dinner at his Plaza Hotel honoring a former president of NARAL. He ultimately didn’t attend, saying his family received death threats. Four years later, his then girlfriend, Marla Maples, had an unplanned pregnancy that resulted in his youngest daughter, Tiffany. “I’m not the kind of guy who has babies out of wedlock and doesn’t get married and give the baby a name,” he told Vanity Fair the night before his second wedding, to Marla, and two months after Tiffany was born. “And for me, I’m not a believer in abortion.”
In 1999, as he flirted with a presidential run, Trump declared himself “very pro-choice,” adding that he would not support a ban on the procedure in the later weeks of pregnancy. In 2011, Trump publicly reversed his position. “Just very briefly, I’m pro-life,” he told attendees at the Conservative Political Action Conference, the annual gathering for the conservative movement.
At the time, Trump framed his change of heart in language familiar to religious Christian voters: a conversion story, marketed to the evangelical masses. When the topic of abortion came up, he often told a story of unnamed friends who planned to end a pregnancy. “He ends up having the baby and the baby is the apple of his eye. It’s the greatest thing that’s ever happened to him,” Trump said in an interview with the Christian Broadcasting Network, two months after his CPAC speech. “And you know, here’s a baby that wasn’t going to be let into life. And I heard this, and some other stories, and I am pro-life.”
But by the time he ran in 2015, Trump rarely talked about abortion. Instead, his campaign was dominated by one shocking moment after the next. He told voters he intended to bar Muslims from the country and deport undocumented immigrants, and he boasted that he could shoot someone on Fifth Avenue in New York City without losing voters’ support. When he did mention abortion, Trump often contradicted Dannenfelser’s desired talking points, like when he praised Planned Parenthood after David Daleiden’s videos were made public, telling CNN that “they do some things properly and good, good for women.” Trump, a twice-divorced casino owner, who framed his Playboy cover and boasted about a threesome, did not share their Christian values, the antiabortion leaders believed. Nor did he seem interested in publicly adopting their socially conservative mores or promoting their antiabortion cause. He was operating from his own playbook, one shaped not by their movement or even the Republican Party but by the rough-and-tumble politics that shaped his rise in liberal New York City.
With his every stumble, every inflammatory statement, Dannenfelser, leaders of the antiabortion movement, and establishment Republicans hoped Trump’s candidacy might be finished. Their skepticism only deepened after Trump floated his sister Maryanne Trump Barry, a federal judge in New Jersey, as a “phenomenal” Supreme Court nominee. Trump said he was joking, but for conservatives who remembered her decision in 2000 that called banning late-term abortions “unconstitutionally and incurably vague,” the remark was enough to confirm what they already believed: Trump wasn’t an ally. He didn’t seem interested in improving, either. When Penny Nance, president of Concerned Women for America, tried to organize an abortion briefing for Trump, his campaign was uninterested.
As the nominating contests approached, things were starting to feel desperate. Their only real shot at halting his rise was in Iowa, the first stop in the primary calendar. So in January, just days before Iowans would caucus to decide their preferred candidate, the super PAC for Senator Ted Cruz, which Kellyanne Conway was running, released an attack ad focused on Trump’s 1999 statement declaring himself “pro-choice.” Dannenfelser organized ten antiabortion leaders to sign an open letter urging Iowa caucus-goers to pick “anyone but” Trump. The next president would be responsible for potentially four Supreme Court justices, the women argued, and Trump’s vision so far “does not bode well” for overturning Roe.
“America will only be a great nation when we have leaders of strong character who will defend both unborn children and the dignity of women,” they wrote. “We cannot trust Donald Trump to do either.”
A moment of hope came when Cruz won Iowa by six thousand votes, powered by support from evangelical Christians, who were a significant portion of the state’s primary electorate. But Trump surged back in New Hampshire, bolstered by voters who felt anxious about the changing country and betrayed by the Republican establishment on issues like immigration. Then he won South Carolina, where more than seven out of ten Republican primary voters were evangelical. Turnout for Republican primaries was higher than at any time since Reagan’s run in 1980, an increase that could be attributed largely to evangelical voters. The leaders of the antiabortion movement had made clear that Trump was not the best champion of their cause. A large portion of their voters supported him anyway.
Trump understood something about these voters that Dannenfelser and her allies had missed. Like Dannenfelser, Trump believed the Republican autopsy of their losses in 2012 underestimated the power of an energized conservative base. “Does the GOP have a death wish?” he had said when the report was released, railing against the call for immigration reform included in the document. Unlike Dannenfelser, Trump believed the best way to channel the anger of the party’s base was through a new kind of culture war. His vision was not based in traditional opposition to abortion rights and gay marriage but in a broader, angrier populism that was superheated by anti-immigrant rhetoric, a hatred of elite urban liberals, and a racial backlash to Obama.
Trump channeled broader evangelical anxieties about conservative white Christianity’s declining numbers in a changing nation. Christians, these conservative white evangelicals believed, could soon become a persecuted minority, drowned out by what they saw as the forces of secularism, a diversifying nation, and an elite class—Hollywood, media, academics, and even Wall Street—that had turned against them. In just a matter of years, support for same-sex marriage had gone from a fringe position to one widely supported across the country. They watched several high-profile examples of people who shared their views—Christian wedding cake bakers, Hobby Lobby, Catholic nuns, county clerks—being required by the government to follow nondiscrimination laws, or to certify same-sex marriages or provide contraception coverage under the new health care law, things they said violated their beliefs.
But just as these conservative Christians believed they had been, Trump was rejected and dismissed by the Republican Party establishment. In an irreligious Manhattan businessman, many of them somehow saw themselves. And he promised them a restoration.
Trump made these voters a pledge bigger than conservative vows to ban abortion, stop same-sex marriage, or end racial preferences like affirmative action. “Christianity will have power,” he declared before the caucuses to evangelicals gathered at a Christian college in the conservative northwest corner of Iowa. “If I’m there, you’re going to have plenty of power. You don’t need anybody else.”
For much of his primary campaign, Trump had largely circumvented the traditional social conservative leaders of the movement—people like Leo and Dannenfelser. Instead, he relied on the more populist elements of evangelical Christianity. The televangelists and Pentecostal preachers with large followings online or on television, who did not have the strong political apparatus that the social conservatives did, made his case directly to primary voters. But now he appeared headed to the nomination and a difficult general election contest. To unify the party after a divisive primary, Trump would need the support of those conservative power brokers. And behind the scenes, some of his top aides had already been working out a deal to bind Trump to the conservative legal establishment, and with it, the antiabortion cause.
The day Scalia died, Don McGahn, a longtime Federalist Society member who was representing Trump’s campaign, called Leo. The ninth Republican debate was in just a few hours, and Trump would certainly be asked about the sudden Supreme Court vacancy. Were there any judges, people who were “downright edgy,” that he should be sure to mention as possible replacements, McGahn asked. Standing on the stage that night, Trump gave the public its first glimpse of his type of Supreme Court. He named two judges whom Leo had suggested—Diane Sykes and Bill Pryor, a favorite of conservatives for his views on Roe, or as he once put it, “the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children.”
Shortly after the funeral, McGahn called Leo again, with an audacious proposal. Trump would release a public list of potential Supreme Court nominees and commit to appointing one of them should he win. The idea marked a startling break with political and legal norms. Previous presidential candidates had been purposely vague about their favorites—fearing the names could be leveraged against them in the campaign or, if they won, by interest groups during their administration. Even President George W. Bush, a champion of the antiabortion cause, spoke about a judicial litmus test for judges on Roe only in the most coded terms. When asked about judicial selection at the second presidential debate in 2004, he cited Dred Scott, the 1857 decision that ruled slaves remained the property of their owners, as an example of a bad ruling. The mention of such an old case baffled many viewers. But the antiabortion movement heard his meaning: Bush would never appoint a Supreme Court justice who supported Roe—a decision they often compared to the Dred Scott case.
Trump would adopt a far more transparent approach. In March, a month after Scalia’s funeral, Trump attended a lunch at the Washington office of McGahn’s corporate law firm, Jones Day, with two dozen prominent conservative lawmakers and lobbyists, people like Senators Tom Cotton and Jeff Sessions. McGahn told Leo to come to the meeting, and arrive prepared. In a private moment with Trump and McGahn after the larger discussion, Leo pulled out a list of names. It would take a few months to iron out the details, as various factions of the party fought over who would make it onto Trump’s list of potential nominees. In May, his campaign released the first version of his list: eleven judges, including Pryor and others hostile to abortion rights. A second list would follow four months later that included Neil Gorsuch. They omitted another favorite, Brett Kavanaugh, a former lawyer in the Bush White House and circuit court judge in Washington, DC, who was suggested by allies at the Heritage Foundation and had long coveted a Supreme Court seat. He was too much of a Washington insider, and Trump was running on a “drain the swamp” message. If Trump won, Leo figured they could always supplement the list later.
Trump would later describe his picks as “pro-life judges,” a term Leo repeatedly argued against in private conversations. “You’re not nominating pro-life judges, you’re nominating pro-constitutional judges,” he said. The issues were broader than just abortion rights, Leo explained, and besides, judges were supposed to impartially rule on legal principle—not their preconceived political or religious beliefs. Trump didn’t listen.
Regardless of how the judges were described, the roster of names signaled to conservatives that Trump would make promises no one else would. He was willing to go further than any other Republican candidate in modern history. Many conservative rank-and-file voters were already with Trump. But the list, as it would soon come to be known, would work as intended, providing the ultimate guarantee to conservative politicians and other elites—many of whom were Federalist Society members themselves. It “reassured a whole lot of Republicans,” Mitch McConnell would explain years later at a Federalist Society event in Kentucky with McGahn, “that, okay, maybe he was doing fundraisers for [Democratic Senator Chuck] Schumer four years ago, but looks like he may be okay on something that’s really important to us.”
But the list wasn’t enough to reassure Dannenfelser. While the male leaders in their movement flocked behind Trump, many of the women were horrified that Trump made headlines on abortion for all the wrong reasons. Just days after his meeting at Jones Day, Trump said women who have abortions should face “some form of punishment.” It was Todd Akin all over again, gutting the credibility of female activists like Dannenfelser who had spent years trying to frame their movement and party as pro-woman. Conway, in an interview with The New Yorker, called it “a great example of him just undoing decades of work.” Dannenfelser took a more tactical approach, and publicly excused Trump’s comment—just as she once stood by Akin. “As a convert to the pro-life movement, Mr. Trump sees the reality of the horror of abortion—the destruction of an innocent human life—which is legal in our country up until the moment of birth,” she said. “But let us be clear: Punishment is solely for the abortionist who profits off of the destruction of one life and the grave wounding of another.”
Democrats, too, noticed the list. Already, they were enraged by the fact that McConnell and Senate Republicans refused to move forward with Garland. Now, the list marked another democratic norm being shattered by a man whose candidacy seemed to break every unwritten rule of politics and Washington.
But on some level, abortion-rights advocates did not believe the list of names really mattered. They felt confident that their own presidential candidate could not lose.