WASHINGTON (CN) — Just a few bad apples. No need to burn down the orchard.
In his year-end report for 2021, Supreme Court Chief Justice John Roberts suggests that misconduct really isn’t that big of an issue for the over 30,000 members of the federal judiciary.
“The Working Group recognized the seriousness of several high-profile incidents, but found that inappropriate workplace conduct is not pervasive within the Judiciary,” Roberts wrote, referring to a collective of judges and senior judicial administrators that the chief justice organized in 2017 to address allegations of serious workplace misconduct.
This assessment stands at odds, however, with reports that paint a picture of abusers who get promoted while their victims are left with emotional and professional turmoil.
In a system built on confidentiality and a well-defined power structure, advocates say reporting of harassment within the judicial branch is stymied by inadequate mechanisms that need reform.
But rather than embracing calls for reform from Congress, Roberts focuses on how the judiciary can police itself. In support of that idea, he leans on recommendations from 2018 that the Judicial Conference already adopted.
Accounts of what it is actually like to report harassment within the judiciary’s self-policing method suggest that Roberts’ workplace reforms scratch only the surface of what is needed to protect vulnerable employees from predatory supervisors.
Olivia Warren testified to this in February 2020 before the House Judiciary Committee. After Warren detailed the obstacles she encountered while attempting to report sexually harassment she suffered while clerking for the late Ninth Circuit Judge Stephen Reinhardt, more than 70 of Reinhardt’s former clerks — some who also experienced harassment — came forward to support her.
Warren attempted to report Reinhardt’s harassment through the Office of Judicial Integrity — a new entity created specifically to deal with reports of workplace misconduct — but was ultimately unsuccessful.
“There are systemic barriers to reporting harassment and misconduct by judges that are unique to the legal profession, and uniquely formidable in the context of the relationship between law clerk and judge,” Warren said in her 2020 congressional testimony. “The consequences of miscalculating the risk of possibly offending a judge are fraught with a peril that does not dissipate with time and can hang over one’s entire professional career. For a law clerk, at the precipice of his or her legal career, alienating a federal judge can spell doom for their life in the law.”
Warren wrote about her experience again in a 2021 article for the Harvard Law Review. Looking back, she said the most painful part was that the outrage sparked by her testimony only distracted from the lack of action actually taken to change the experience of those who would come after her.
“We are not safe when there continue to be no consequences for the people who determine the consequences for everyone else,” Warren wrote. “We are not safe when we live in a world where harm and consequence are articulated by such limited minds. When someone with the personal views of women that Judge Reinhardt expressed to me is heralded for writing the opinions endorsing the most expansive vision of women’s rights and roles in the world, imagine what the law would look like if written by someone who actually believed women. Imagine a system that did not deny the unimaginable, but instead named it, found a way to rectify it, found a way to move on.”
Warren’s experience in facing obstacles when reporting abuse was not a one-off occurrence. A former employee of the federal judiciary — identified as Jane Roe — came forward to report months of sexual discrimination, harassment, and retaliation she endured between 2018 and 2019. Roe felt so unsafe in her workplace that she began carrying pepper spray to work. When she reported her concerns to a senior manager, they decided to bring her and her abuser into a room together to discuss the situation and find a compromise for both parties.
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