When he took the oath of office from Supreme Court Chief Justice John Roberts on Jan. 20, 2021, President Biden swore that he would faithfully execute the office of the presidency and preserve, protect, and defend the Constitution — a set of duties paramount among which is the execution of federal law without fear or favor toward any party.
A draft Supreme Court opinion is not a classified or national-security document. But legal analysts said the leak of one — such as occurred this week, when Politico obtained and published a draft opinion by Associate Justice Samuel Alito in Dobbs v. Jackson Women's Health, signaling the imminent reversal of Roe v. Wade, the 1973 ruling that legalized abortion — could constitute a violation of any number of federal statutes.
In ordering an investigation of the Alito leak by the marshal for the court, Roberts called the publication of the draft "a singular and egregious breach" of security and "an affront to the Court" meant to "undermine the integrity of operations."
The Biden White House, however, seems unconcerned with all that. Asked point blank on Wednesday if the president condemns the Alito leak, White House press secretary Jen Psaki said: "I don't think we have a particular view on that other than to say that we certainly note the unprecedented nature of it.
"Obviously it's up to the Department of Justice to determine what, if any, action they will take. But our focus is on not losing sight from what the content is in the draft and what is at risk here [for abortion rights]."
Asked later if the president thinks the leaker of the Alito draft "should be punished," Psaki characterized such concerns as off the mark. "What is most important to people across the country here," she said, "is not the leak and the story of the leak. It is the fact that women's healthcare is at risk for millions of people across this country."
The White House posture marks a sharp departure from the substance and tone of the president himself when video surfaced last fall showing mounted Border Patrol agents using reins to control horses amid a crowd of undocumented migrants crossing the border at Del Rio, Texas.
"It was horrible," Biden thundered in remarks with reporters in the State Dining Room on Sept. 24. "To see people treated like they did: horses nearly running them over and people being strapped. It's outrageous. I promise you, those people [the agents] will pay. An investigation is underway now, and there will be consequences. There will be consequences. It's an embarrassment. But beyond an embarrassment, it's dangerous; it's wrong. It sends the wrong message around the world. It sends the wrong message at home. It's simply not who we are."
As it happened, the inspector general for the Customs and Border Protection agency declined to investigate the agents. (They still face an internal probe by CBP's Office of Professional Responsibility which could result in disciplinary action against the agents, including possible termination.)
The White House has yet to explain the divergent approaches: the use of the presidential bully pulpit for harsh, prejudicial remarks against law enforcement officers operating in a chaotic environment as contrasted with the muted response to the unprecedented leak of the most sensitive document currently in the possession of the Supreme Court.
The difference suggests that Biden regards the legal rights of illegal aliens as worthier of protection than those of Alito and the judicial branch of the federal government.
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