So far, there is no indication that Biden knew he possessed classified material. When one of these documents came to light, he instructed his lawyers to cooperate fully. (The same seems to be true of former Vice President Mike Pence, whose lawyers discovered and turned over “a small number” of classified documents to authorities.) All papers have been turned over to the Justice Department; Biden did not try to hide them or investigators. After weeks of negotiations, Biden invited the FBI to search his residence from head to toe.
Chief Justice John G. Roberts Jr. approached the court’s document problems differently. After the Dobbs opinion was leaked, none other than Judge Clarence Thomas stated: “If you lose that trust, especially in the institution I’m in, it fundamentally changes the institution.” With an ethical breach this serious, you’d think Roberts would have left no stone unturned and left no doubt as to the judges’ own innocence.
To make matters worse, the New York Times subsequently reported allegations that Judge Samuel A. Alito Jr. had leaked a previous case, Burwell v Hobby Lobby Stores Inc.to right-wing groups.
Roberts did not ask the Justice Department for help. He did not call the Capitol Hill or DC police. Instead, he took the case to the Supreme Marshal, a full-time appointed judge, and to dispel any suspicion of institutional bias, he enlisted Michael Chertoff, a Republican, to evaluate the Marshal’s work. Chertoff, however, is hardly a neutral observer. He served on the United States Court of Appeals for the 3rd Circuit with Alito and served as Secretary of Homeland Security in the George W. Bush administration. Ultimately, Chertoff issued a limited statement that he could not identify any additional investigative steps the marshal could take. He did not comment on whether the marshal was the best choice for the investigation.
The marshal’s report, which Roberts approved, was initially vague about whether the judges themselves had been interviewed and whether their computers and other electronic equipment had been assessed. After a backlash, the marshal clarified: “The judges actively participated in this iterative process, asking questions and answering mine. I followed all credible leads, none of which pertained to the judges or their spouses. This sounds like she didn’t have any formal investigative conversations. In addition, she said the judges were not asked to sign statements under penalty of perjury. In short, the judges were not subjected to the kind of hostile questioning where lying might have criminal consequences.
This investigation raises a disturbing question: Did Roberts really want to find the culprit? Adding Chertoff as a fig leaf after the fact hardly helps the legitimacy of the probe. The credibility of the court, already fraying, is left in tatters.
The difference between Biden and Roberts is instructive. Biden has understood that no suspect can self-examine, that even the president must undergo close scrutiny. Biden acknowledges that he owes Americans a high degree of transparency. This is how leaders in a democracy behave.
But in recent years, the Supreme Court has become arrogant, defiant and contemptuous of the demands of democracy. Judges have appeared in partisan environments and delivered partisan diatribes. Thomas has failed to back out of cases his wife has lobbied. And the court has refused to adopt a mandatory code of ethics.
Judges act this way because they can. With a lifetime term in office and the near impossibility of impeachment by impeachment (it takes a two-thirds Senate vote), they no longer care about maintaining a semblance of neutrality. They have stretched “judicial independence” to include judicial liberty and irresponsibility.
Unless and until the court shows that it understands why it is losing credibility, offers some minimal transparency (including on challenges) and applies a strict code of ethics, the crisis of confidence in the court will only deepen.