The Supreme Court is lighting its reputation on fire
BREAKING: The Court's "independent" validator has secretly been paid more than $1 million by the Court
When the Supreme Court released its leak investigation report last week, two things were obvious within minutes:
The Supreme Court justices themselves were exempted from the scrutiny applied to Supreme Court staff.
The Court’s use of Michael Chertoff to vouch for the quality of its investigation was laughable.
The very next day the Marshal of the Supreme Court had to issue a statement acknowledging that, unlike other Court employees, the justices were not asked to sign affidavits as part of the leak investigation. It’s a short statement (just 65 words) but long enough to create yet another credibility problem for the Court. The Marshall wrote:
I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.
Two problems here.
First, it makes clear the Justices were not subject to the same investigative techniques as their employees, undermining the investigation and creating a two-tiered system of justice that has repeatedly led to rancor within the Court. The New York Times reported last weekend:
As staff members were grilled, some grew concerned about the fairness of the inquiry, worried that the nine most powerful people at the court were not being questioned rigorously like everyone else.
Instead of putting the matter to rest, Friday’s statement heightened concerns about a double standard for justices.
“They weren’t subjected to the same level of scrutiny,” said one court worker on Friday, speaking on the condition of anonymity because of the court’s confidentiality rules. “It’s hard to imagine any of them suffering meaningful consequences even if they were implicated in the leak.”
And second, the statement isn’t honest. It implies that the decision about whether to ask a Court employee to sign an affidavit was based on whether there were “credible leads” that “implicated” the employee. But that isn’t true. The report itself says 82 Court employees were asked to sign affidavits. Surely the Court did not have credible leads implicating all 82 employees. And so the decision to exempt the Supreme Court Justices from affidavits was not based on a lack of leads implicating them; it was made simply because of who they are.
It is deeply inappropriate that the Supreme Court not only exempted the justices from the scrutiny it applied to junior staff, but also tried to obscure this fact in its report and then issued a misleading statement about its reason for doing so.
Yesterday, Take Back The Court Action Fund1 sent a letter to the House and Senate Judiciary Committees containing 18 questions about the Court’s handling of the leak investigation and urging Congress to “immediately launch an investigation and hold hearings on whether the justices received special treatment during the investigation into the Dobbs leak.”2
The existence of so many glaring questions about the Court’s investigation of itself puts a spotlight on Michael Chertoff. When the Court released its report last week, it included a statement from Chertoff vouching for the thoroughness of the investigation. The Court explained:
Recently, this Court consulted Michael Chertoff. Mr. Chertoff is a former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the Dis- trict of New Jersey. We invited Mr. Chertoff to assess the Marshal’s investigation. He has advised that the Marshal “undertook a thorough investigation” and, “[a]t this time, I cannot identify any additional useful investigative measures” not already undertaken or underway. State- ment from Michael Chertoff 1 (2023). A copy of Mr. Chertoff’s statement is attached.
As I noted last week: This is hilarious for two reasons: First, in order to legitimize a sham investigation, the Court solicited the endorsement from a man who served as lead counsel on Al D’Amato’s Whitewater fishing expedition in the 1990s. And second, Chertoff’s inability to “identify any additional useful investigative measures” does not exactly inspire confidence in Chertoff himself, given the apparent exclusion of the justices from investigation.
And hey, what do you know, here’s CNN today:
The Supreme Court did not disclose its longstanding financial ties with former Homeland Security Secretary Michael Chertoff even as it touted him as an expert who independently validated its investigation into who leaked the draft opinion overturning Roe v. Wade.
CNN has learned from sources familiar with the arrangements that the court in recent years has privately contracted with The Chertoff Group for security assessments, some broadly covering justices’ safety and some specifically related to Covid-19 protocols at the court itself.
The estimated payments to Chertoff’s risk assessment firm, for consultations that extended over several months and involved a review of the justices’ homes, reached at least $1 million. The exact amount of money paid could not be determined. Supreme Court contracts are not covered by federal public disclosure rules and elude tracking on public databases.
So Chertoff, a longtime Republican insider who has secretly been paid at least $1 million by the Supreme Court, is the “independent” expert the Court turned to in order to vouch for an investigation in which the Court gave its Justices special treatment. Yikes.
Take Back The Court Action Fund president Sarah Lipton-Lubet responded to the explosive news:
Chertoff claims that he couldn’t find ‘any additional useful investigative measures’ to identify the Dobbs leaker. We identified more than a dozen questions worth asking — but then again, we don’t have secret contracts with the Court. I guess Chertoff had at least a million reasons not to ask any of those questions. This kind of rot is at the core of this Court, and yet they wonder why the public no longer trusts them.”
But it isn’t just the public that is losing faith in the Court. The New York Times reported last weekend that the Court’s conduct is reducing confidence in the Court within the Supreme Court itself:
The investigation was an attempt by Chief Justice John G. Roberts Jr. to right the institution and its image after a grievous breach and slide in public trust. Instead, it may have lowered confidence inside the court and out.
It’s amazing how bad John Roberts is at this. All of the controversy of the past week — questions about whether and why the Justices were given special treatment in the leak investigation, the choice to use Michael Chertoff as “independent” validator — should have been easily foreseen. I, and others, raised them within minutes of beginning to read the Court’s investigation report. It’s amazing the Court itself didn’t understand how rotten this all looks — and is.3
The silver lining in the Supreme Court’s constant rake-stepping is that public trust in the Court should be low. For a long time, the Court has benefited from undeserved public confidence, insulating it from calls for reform and allowing it to behave in deeply undemocratic ways and without transparency or even a code of ethics. The dominant school of thought among political, media, and academic elites is that the erosion of trust in the Court in recent years is a bad thing. But, as I explained two years ago, a decline in public trust in the Court is preferable to continued trust in a Court that is untrustworthy:
There aren’t many things more important than trust in the Supreme Court, but one of them is the trustworthiness of the Supreme Court. Distrust of institutions can be dangerous. But continued faith in institutions that do not deserve it, and that have been captured by narrow, anti-democratic political factions that use those institutions to impose minority rule—that is how democracies die. That is how people fail to act in time to prevent a slide into authoritarianism.
Our Supreme Court is a deeply unethical and untrustworthy affront to democracy, but at least we can count on it to help make that clear.
Disclosure/endorsement: I am a consultant & advisor to TBTCAF.
Among the questions are several relating to a letter an anti-abortion activist sent Chief Justice Roberts last year, in which the activist indicated that Justice Alito had previously leaked the outcome of the 2014 Burwell v. Hobby Lobby decision — a letter that raises obvious questions about whether the leak investigators examined Justice Alito’s calendars and records for evidence of contact with anti-abortion activists. That sure seems like reason enough to apply to Justice Alito the level of scrutiny applied to 82 Supreme Court employees.
Certainly Justice Kavanaugh, a veteran of the Starr investigation, has some experience with investigations that are rightly perceived as partisan shams.