Brooke Gladstone: I'm Brooke Gladstone. We continue our year in review with the current state of the nation's courts, especially its highest one. Since our nearly non-functional Congress has done much to hamstring the executive branch that leaves the third branch, the judiciary, with the job of safeguarding our democracy. Here are a few headlines from the last 12 months.

Speaker 39: The US Supreme Court today dealt a major blow to affirmative action in higher education, striking down race-conscious admissions programs at Harvard University and the University of North Carolina.

Speaker 40: The court's six justice conservative majority said the schools discriminated against white and Asian American applicants by using race-conscious policies that benefited students from underrepresented backgrounds.

Speaker 41: The Supreme Court by a six to three vote has ruled that the Environmental Protection Agency does not have broad authority to try to set national energy policy. This decision is not only something that will restrict the EPA's authority going forward but also may have implications for other federal agencies.

Speaker 42: Tonight the Supreme Court dealing a major defeat to President Biden striking down his plan to erase more than $400 billion in federal student loan debt.

Speaker 43: The other big ruling that we got this morning the question whether businesses can refuse service to LGBTQ customers because doing so would violate the business owners' First Amendment rights. The Supreme Court rules for a Christian web designer who objected to making wedding websites for same-sex couples.

Speaker 44: That designer has not started her wedding website business yet but says that her Christian faith prevents her from doing work that celebrates same-sex marriage.

Speaker 45: Today in genuinely shocking news, the conservative majority Supreme Court ruled 5:4 in favor of Black voters in a congressional redistricting case in Alabama. It definitely tells you something about the standing of the court when there is shock that they didn't further gut American voting rights.

Brooke Gladstone: While not on the official docket ethical standards for the High Court were certainly on trial by public opinion.

Speaker 46: Well, we've got another eyebrow-raising revelation tonight about Supreme Court Justice Clarence Thomas and his financial dealings with a billionaire buddy.

Speaker 47: For years, Justice Clarence Thomas has secretly accepted luxury gifts from a GOP megadonor Harlan Crow.

Speaker 48: He took these trips to places like New Zealand, Indonesia, on private yachts, private jets.

Speaker 49: Including a $500,000 trip to Indonesia one year.

Speaker 50: Many of these trips went undisclosed on Thomas's ethics filing despite that being required by law.

Speaker 51: Supreme Court Justice Samuel Alito is facing scrutiny over a new report claiming he accepted a lavish vacation from a conservative billionaire with frequent business before the court.

Speaker 52: With public trust in the Supreme Court wavering, Democrats on the Senate Judiciary Committee are moving forward with a bill that would overhaul the High Court's transparency requirements. The bill would require the court to adopt an ethics code as well as impose more rigorous rules for disclosure of gifts, travel, and income.

Speaker 53: On Monday, the Supreme Court stunned Washington by announcing it's adopting a new code of conduct.

Speaker 54: This new code does very little and it provides no new mechanisms for holding justices accountable.

Brooke Gladstone: On the docket in the year ahead is access to abortion drugs, voting rights in South Carolina, the regulation of social media, the gun rights of domestic abusers and more moves to rein in the so-called administrative state by weakening federal agencies. All issues with huge implications and long tails made all the more unsettling because the fantasy of a High Court impervious to partisanship was blasted years ago.

In 2023, we learned that one canny conservative idealogue has definitely played a very long game to place his candidates in key positions across the nation's judiciary, not just on the High Court, but in appellate courts and state courts and state agencies too. His name is Leonard Leo of the Federalist Society, once regarded as Trump's unofficial justice picker, but Leo's long been placing people, sometimes with bare-knuckle threats, as solicitors or attorneys general wherever he can, pulling the law of the land from a perceived leftward tilt to the far right.

Listeners may recall our series with ProPublica about the impact of this relatively low-profile figure, but not so low profile to some, as reporter Ilya Marritz evinced with a telling anecdote from Mike Black, who was working in the office of the Montana Attorney General, when he walked into the office of a co-worker and noticed a bookshelf of notable bobbleheads

Mike Black: There was Scalia for sure and I think probably Alito, there were like, four or five. Then there was this one younger-looking guy, and I said, "Well, who the heck is this?" and he goes, "Well, that's Leonard Leo."

Ilya Marritz: Black looks at his colleague, a man named Lawrence VanDyke, the Montana Solicitor General, he looks at the bobblehead doll, a miniature of someone he used to know.

Mike Black: I think I laughed. I went to law school with Leonard and I can't believe that there's a bobblehead doll of him. It was clear that Lawrence was enamored with Leonard, and it's been borne out that literally was a patron of Lawrence VanDyke. At the time, I just thought it was funny.

Ilya Marritz: Leonard Leo was on that shelf of bobbleheads alongside Supreme Court justices. It's a visible manifestation of the work he's done to shape the court, but if that's all he did, he wouldn't be as influential as he is today because the justices would only be hearing those cases that happened to get to them. Leo has done something maybe more impressive. He's built a system that makes it much more likely that the right cases get to the High Court. The cases he and his ideological brethren believe are most likely to nudge the law in the direction they think it should go.

Brooke Gladstone: Entangled in this story is ProPublica's widely reported exposé of the deep personal and highly remunerative friendship between Clarence Thomas and billionaire Republican donor and Federalist Society backer, Harlan Crow.

Corey Robin: The way corruption often happens is that you have men of wealth and men of power, who are part of a fraternity.

Brooke Gladstone: I spoke with Corey Robin, author of The Enigma of Clarence Thomas, after the ProPublica revelations.

Corey Robin: They exchange words and they exchange ideas, and they gain each other's respect and trust. Thomas is a particularly important person in that fraternity because he really believes in the worthiness and the legitimacy in the standing and in the stature of those men of wealth. He wants those men of wealth to play more of a role in our society, so he takes their words very, very seriously. The problem here is that Thomas not only doesn't really hide from that, he's created an entire jurisprudence that justifies that.

Brooke Gladstone: Thus, the revelations of 2023 revealed an unbridled eagerness to turn away from what was once seen as a fundamental part of the American creed.

Corey Robin: We have a tradition of one person, one vote, and the premise of that tradition is that nobody is worth more than anybody else. That was a long and hard-fought battle, fought through questions of slavery, fought through the question of the denial of the vote to women, and so on, and we won that battle. The most grievous assault and undoing of that battle has been, I would argue, these decisions about the value of the man of money, that he is, in fact, worth more not just in the economic sphere, but in the political sphere. That has been the work of Clarence Thomas. If we hope to have any kind of a democracy, that work has to be undone.

Brooke Gladstone: Why was it left to ProPublica to expose this seize on our founding principles? Dahlia Lithwick, who reports on the courts for Slate says that court reporters and academics underwent a reckoning in 2023.

Dahlia Lithwick: There's a photograph that's been disseminated again in that ProPublica reporting of Harlan Crow, Clarence Thomas, Leonard Leo, Marcoleta, all people who are involved in this enterprise of making sure that these millions of dollars that are sloshing around are going to get certain political outcomes at the court whether it's busting unions, circumventing voting, affirmative action, ending-- whatever it is, not connecting the dots the way that portrait connected the dots is what Senator Whitehouse says is a signal failure of the media. Nobody should be hearing this on your show for the first time.

Brooke Gladstone: When I spoke to Dahlia in June, she cited the groundbreaking work of academics Stephen Vladeck and Will Baude, who coined the term, 'The Shadow Docket.'

Dahlia Lithwick: What they were clocking that the rest of us were missing was that in recent years, the US Supreme Court were deciding more and more cases on an emergency basis. We've always had a "shadow docket." We've always had an emergency docket. It was used for executions. Suddenly, in the Trump years, cases were rocketing to the High Court. Instead of being argued in public, instead of having extensive briefing and finding of facts, the Court was deciding seismically important cases on the emergency docket, often at midnight, often with two unsigned paragraphs.

The example that I offer is SB 8, that Texas "vigilante" abortion bill that would have given folks a bounty for turning in someone who aided and abetted an abortion. Even before that term started, the Court on the shadow docket upheld that. Once the Court, in effect, blessed this vigilante law that for one tenth of the childbearing population in the United States overturned Roe v. Wade long before Dobbs did. That's how that term started.

By the way, the Court's approval ratings are the lowest they've ever been since Gallup polling began. The American public almost was ahead of the legacy media in recoiling at the notion that a court whose job is principally to show its work was not showing its work, was just throwing out the law and saying, "Here's what the new law is." When the Dobbs opinion was leaked, that was also seismic at the court.

Brooke Gladstone: Why was that so significant?

Dahlia Lithwick: We've just never had the totality of an opinion leaked to the press in advance of publication. We've never had, in my lifetime, the kind of backbiting amongst the justices that immediately followed Justice Alito saying, "Now our lives are in danger.", Justice Thomas saying, "Stuff like this would never have happened under Chief Justice Rehnquist. He was a much better chief." Just palpable mistrust within the institution and the incandescently stupid probe into who leaked the opinion, which could not have been handled worse.

We had the law clerks subject to deep scrutiny and penalties of criminal sanctions, and the Justices were taken to tea and asked polite questions and offered macaroons to have that result in a statement that, "We did our best, but we can't find the leaker," was just catastrophically bad for the Court's legitimacy. I cannot believe, and this is maybe the most important thing I can say, that a court that by designs has neither the power of the purse nor the sword.

The only power it has is the public's willingness to suspend disbelief and say, "This is not a partisan political institution. This institution is different." For the court to be so far down the road of, "Hey, we're a partisan political institution, but there's more, we'll do more partisan political things." It's actually heartbreaking.

Brooke Gladstone: I asked Dahlia if she had any regrets as a journalist on this speed.

Dahlia Lithwick: Look, I've been doing this for 23 years. I genuinely believed that my job was akin to science reporting, translating complicated doctrines so people can understand it. I have no regrets about years spent doing that. When people say to me, "Wait a minute, you mean we knew that Harlan Crow was giving Thomas gifts and Thomas was not disclosing them since 2011, and you didn't write about that?" I do have regrets.

The fact that Ginni Thomas was intimately involved, not just in texting Mark Meadows about the 2020 election, but in getting in touch with state officials, urging them to set aside election results. We know all this, and I didn't sound the alarm that there is a machine at work that is simmering right under the part of the court that I did cover. We are now sitting atop of this mess of ethics violations in a moment where John Roberts gave a speech in which he more or less was the human shruggy emoji just like, "Nothing to see here. We're fixing it."

Then, by the way, adds that the most heartbreaking moment for him as Chief Justice was the decision to put fencing up around the building last year as though the greatest suffering post-Dobbs was the suffering of the Justices themselves. The level of complete self-delusion in a statement like that is breathtaking. The idea that I didn't think that part of my job was discomforting the comfortable or holding powerful people to account or powerful systems to account and that it wasn't my job to follow the money, it wasn't my job to figure that out, yes, I have regrets.

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Micah Loewinger: Coming up, 2023 was one of the deadliest years for journalists.

Brooke Gladstone: This is On the Media.