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John Roberts Praises Efforts To Rid Judiciary Of Sexual Misconduct, Ignores Sexual Misconduct Of His Colleagues

Roberts's year-end report ignores the rape-y elephant in the room.

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Chief Justice John G. Roberts, Jr. (via YouTube).

Chief Justice John Roberts accidentally summed up the judiciary’s reluctance to seriously root out sexual harassment in half a paragraph of his year-end report:

[The Federal Judiciary Workplace Conduct Working Group] determined—based on input from employees, advisory groups, and court surveys—that inappropriate workplace conduct is not pervasive within the Judiciary, but it also is not limited to a few isolated instances involving law clerks. The Working Group concluded that misconduct, when it does occur, is more likely to take the form of incivility or disrespect than overt sexual harassment, and it frequently goes unreported. On the positive side, the Working Group determined that the Judiciary does have in place key foundations for combating inappropriate conduct, including committed leadership, an ethos of accountability, positive workplace policies and practices, and established training programs. But the Working Group concluded that more could be done, especially in encouraging all employees—not just law clerks—to come forward in reporting misconduct, and it set out a series of specific recommendations to improve the workplace environment.

Sexual misconduct is “not pervasive,” not “overt” (according to a bunch of people who have not proven they can identify “overt” sexual harassment when it’s happening right in front of them), and anyway it’s really the victims’ fault for not coming forward.

The working group’s report was widely panned by both Democrats and Republicans when it was released in June. And June 2018, you might remember, was a more innocent time, before Republicans put an alleged attempted rapist on the Supreme Court. Roberts’s decision to focus on it so heavily in his year-end review suggests that he doesn’t view sexual harassment in the judiciary as a big problem, but desires to look like he cares.

I find Roberts’s decision to couch allegations of judicial misconduct as “incivility” to be particularly disturbing. Incivility is the cloak under which these assholes keep their sexual harassment off of the radar. Incivility is how women are gaslighted into thinking that the treatment they are experiencing is “normal” and that they just need to “toughen up” to work under powerful people. Incivility is how Alex Kozinski got away with it for so long, and how he made so many people complicit in his behavior. “Incivility or disrespect” IS “overt sexual harassment.” Roberts should stop using the euphemism.

Roberts resolved to keep the working group in place for another year, which is an indication that underwhelming and tepid suggestions made by the working group are as far as Roberts is willing to go to protect law clerks from sexual harassment.

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I suppose that’s not surprising given that a harder stance against sexual misconduct would inevitably turn attention to Roberts’s colleagues on the highest court who have been accused of sexual misconduct. Roberts can’t well make a big deal of rooting out harassment throughout the federal judiciary when the court he sits on shields men who should be drummed out of the judiciary altogether. One of the reasons it’s so devastating to have men like Clarence Thomas and Brett Kavanaugh sit on the Supreme Court is that it gives tacit license to all the judges on the lower courts to misbehave. Sexual misconduct is so obviously not something the judiciary takes seriously, if it did, Brett Kavanaugh wouldn’t have a job.

The year-end report is usually just a chummy pat on the back to the federal judiciary, and this year is no different. Since having 22% of the Supreme Court operate under a cloud of sexual misconduct allegations counts as “not pervasive” for Roberts, he moves on from the working group to congratulate the judiciary’s response to natural disasters.

I wish to recognize the judiciary employees who again provided emergency aid, and especially those who responded to the floods in Florida and North Carolina, Super Typhoon Yutu in the Northern Mariana Islands, the Alaska earthquake that damaged the Anchorage courthouse, and the new wildfires in Northern California. The Judiciary is fortunate to have so many caring and generous judges and employees who quietly and selflessly work to support the public good.

The current conservative majority on the Supreme Court will be an enemy to those who try to combat climate change. It’s a little infuriating to hear Roberts praise the response to disasters his court will do nothing to prevent. But that’s John Roberts for you: he has no intention of helping but he certainly wishes for things to be okay.

2018 Year-End Report on the Federal Judiciary [U.S. Supreme Court]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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