A year after the retirement of a prominent appeals court judge accused of sexual harassment, Chief Justice John G. Roberts Jr. wrote on Monday that the federal judicial system must do more to protect law clerks and other employees from abusive conduct.
“Recent events have highlighted that the very qualities that make the position of law clerk attractive — particularly, the opportunity to work with a senior member of the legal profession in a position of mentorship and trust — can create special risks of abuse,” Chief Justice Roberts wrote in his year-end report on the state of the federal judiciary.
Judge Alex Kozinski, who had served on the United States Court of Appeals for the Ninth Circuit for more than three decades, announced his retirement in 2017 after The Washington Post reported that some 15 women had accused him of sexual harassment.
The women, many of whom had served as his law clerks, said Judge Kozinski had touched them inappropriately, made unwanted sexual comments and forced them to view sexual materials on his computer.
In announcing his retirement, Judge Kozinski suggested that he had been misunderstood. “I’ve always had a broad sense of humor and a candid way of speaking to both male and female law clerks alike,” he wrote.
Chief Justice Roberts responded to the accusations by assembling a working group to examine whether the court system’s procedures for addressing inappropriate conduct were adequate. The group published a report in June.
“Although the working group found that the judiciary compares favorably to other government and private sector workplaces, it did not give the third branch a completely clean bill of health,” Chief Justice Roberts wrote. “It 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.”
Incivility and a lack of respect were more common than overt harassment, the chief justice wrote, adding that abusive conduct often goes unreported.
Chief Justice Roberts said he endorsed the group’s recommendations, which called for clearer standards, streamlined procedures for making complaints and more training.
“The proposed revisions,” he wrote, “also make clear that the duties of confidentiality shared by judges, law clerks and court employees do not pose any obstacle to reporting or disclosing misconduct.”
Chief Justice Roberts did not mention Judge Kozinski by name in Monday’s report. In late 2017, he asked the Judicial Council of the Second Circuit, in New York, to look into the accusations against the judge.
In an order issued in February, the council said it had seen “grave allegations of inappropriate misconduct.” But it took no action against Judge Kozinski, saying it was powerless to do so in light of his resignation.
Chief Justice Roberts also said nothing on Monday about his newest colleague, Justice Brett M. Kavanaugh, who was accused of sexual misconduct as a youth during his confirmation hearings. Justice Kavanaugh denied the accusations.
Chief Justice Roberts referred complaints concerning Justice Kavanaugh’s testimony to the Judicial Council of the 10th Circuit, in Denver. The council dismissed the complaints on Dec. 18, saying that a federal law governing judicial conduct did not apply to Supreme Court justices.
As is his custom, Chief Justice Roberts began his report with a colorful historical anecdote. Justice Louis D. Brandeis, he wrote, was saved from what would have been an amusing error in an important 1928 dissent by an able law clerk.
Justice Brandeis’s dissent objected to warrantless wiretapping by the government. But it also made a more general point, the chief justice wrote, about the perils posed by new technologies.
“Brandeis had planned to give as an example the newly invented technology of television that, he would explain, enabled the government ‘to peer into the inmost recesses of the home,’” Chief Justice Roberts wrote.
Justice Brandeis’s clerk, Henry Friendly, told his boss how televisions actually worked, and the reference was deleted. The clerk would go on to become a distinguished judge on the federal appeals court in New York, and he would later hire a young John Roberts to serve as his own law clerk.