Was Judicial Misconduct Glossed Over in Roberts’ Report?

Supreme Court Chief Justice John Roberts underplayed instances of judicial misconduct in his year-end report on the Federal Judiciary, critics said.

Roberts appeared to suggest that instances of documented misconduct really aren’t that big of an issue for the over 30,000 members of the federal judiciary, wrote Kelsey Reichmann, in Courthouse News Service. 

Rather than embracing calls for reform from Congress, Roberts instead uses his year-end platform to detail focuses on how the judiciary can police itself. In support of that idea, Reichmann writes that he leans on recommendations from 2018 that the Judicial Conference already adopted.

In other words, Roberts wants to focus on self-policing even though others say internal reforms are not enough when it comes to workplace misconduct — backdropped by the fact that reports paint a picture of abusers in the federal judiciary that get promoted, while their victims are left with emotional and professional turmoil, Reichmann details.  

What’s more, Roberts’ recommendations regarding judiciary sexual harassment in the workplace are not only deemed insufficient by Courthouse News, but many fear his comments could discourage other victims of abuse from coming forward. 

This is important, considering a study from the Equal Employment Opportunity Commission in 2016 found that 70 percent of employees don’t report workplace harassment and that 75 percent of those who do report experience retaliation. 

As a case example, Reichmann details Oliva Warren’s testimony from February 2020 before the House Judiciary Committee, where she detailed the sexual harassment she suffered while clerking for the late Ninth Circuit Judge Stephen Reinhardt. 

Warren wrote for the Harvard Law Review last year, saying “Deciding whether to tell Congress and the American public what Judge Reinhardt said about me and my body and my sex life was exactly the kind of choice I spent three years and some $200,000 learning to avoid at all costs.”

But, when the systemic barriers to reporting became too much, and the harassment and misconduct by the judges grew, Warren said in her 2020 congressional testimony that she was willing to out the judges and have her professional career shattered if it meant doing the right thing.

In Warren’s testimony, she expressed how she was met with countless obstacles while attempting to report the harassment through the internal Office of Judicial Integrity, and was left with no other choice than to go public. Following her testimony, more than 70 of Reinhardt’s former clerks — some of whom also experienced harassment — came forward to support her.

“In the year-end report this year in 2021 Roberts outlines the recommendations the working group made and says we implemented all of those, but the point of Olivia’s testimony is that those are insufficient because she was still unable to get clear guidance, despite going through every avenue that was available to her about how to confidentially report the harassment she was subjected to,” Ally Coll, president and co-founder of the Purple Campaign, a nonprofit organization on a mission to end sexual harassment in the workplace, explains to Courthouse News. 

Warren’s experience in facing obstacles when reporting abuse was not a one-off occurrence, as other documented cases show a unanimous experience. 

“We still live in a world where people who speak up about harassment and discrimination are often treated as problems or whistleblowers, and I think that’s especially true in a work environment like the federal judiciary that really prizes confidentiality and has a very clear power structure and hierarchy and with roles — especially with clerkships,” Coll said. 

In his year-end report, Roberts said the judiciary acknowledged that employees need multiple channels to report misconduct, and that there needs to be a prohibition on retaliation for reporting harassment. 

With that being said, Roberts’ self-policing method is ineffective, but others suggest Congress could step in by passing the Judiciary Accountability Act, which draws on reforms Congress itself implemented to stop workplace harassment within its ranks.

Reichmann details that this type of legislation would “would provide clear legal protection for whistleblowers, create more comprehensive channels for reporting harassment, and provide more resources for employees,” Courthouse News reports. 

“I don’t have the answers to fix this problem: I am not an expert in building harassment-free workplaces, and thus I cannot, should not, and will not be prescriptive — despite this Essay’s publication in a law review,” Warren concludes in her Harvard Law Review writing.

“Instead, I intend for my experience to be an invitation and an invocation for those who have not spent all of their chips through congressional testimony in their first year of legal practice to consider the power still in their hands.”

Additional Reading: FBI Officials Avoid Discipline in Sex-Harassment Cases