Harassment, Accountability, and the Erosion of Judicial Legitimacy

Then-Supreme Court Justice nominee Brett Kavanaugh is sworn in before the Senate Judiciary Committee in Washington, D.C., September 2018.

Brett Kavanaugh’s confirmation to the Supreme Court further weakened the public’s eroding sense of faith in the court’s legitimacy, a facet essential to its functioning as an institution. Kavanaugh’s vigorous denials of sexual assault allegations stemming from his youth, combined with aggressive efforts—by him and his powerful supporters—to discredit his accuser, mirrored how the judiciary has swept its own sexual harassment challenges under the rug.

However, Kavanaugh’s confirmation went beyond simply exposing issues of sexual harassment; it opened the floodgates by drawing attention to a wider array of discriminatory practices and ethical quandaries. Today, for instance, the judiciary is under scrutiny for its alarming lack of diversity, its inability to hold judges accountable for misconduct, and the elitism reflected in its hiring practices. Because the Supreme Court’s legitimacy hinges on the public’s faith, it is critical that the judiciary address these issues to restore the sense that it is an impartial institution.

The impact of sexual harassment in the judiciary

In October 1991, Anita Hill testified in front of the Senate Judiciary Committee that she was sexually harassed by now-Supreme Court Justice Clarence Thomas, her superior during her time at the Equal Employment Opportunity Commission. After three grueling days of nationally televised hearings during which the all-male Judiciary Committee tore apart Hill’s character, Justice Thomas was narrowly confirmed to the Supreme Court. Twenty-seven years later, history seemed to be repeating itself when Dr. Christine Blasey Ford testified in front of the Senate Judiciary Committee that she was sexually assaulted by now-Supreme Court Justice Brett Kavanaugh. Despite the enormous controversy associated with its decision, the Senate confirmed Kavanaugh by a razor-thin majority.

Not only did Kavanaugh’s confirmation cast doubt on just how far the women’s equality movement has advanced since Justice Thomas’s confirmation, it also reinforced the toxic power dynamics that govern the nation’s political system and damaged the legitimacy of the Supreme Court by threatening its image of nonpartisanship. Kavanaugh’s confirmation led to an increase in crisis calls from survivors and casted doubt on how sensitive the judiciary would be to issues of sexual harassment, while also raising serious questions about potential bias on the Supreme Court and the influence of politics and ideology on the rule of law. Ultimately, the confirmation process was a reminder of the broader failure of the judiciary to police itself, undermining its integrity as an independent institution.

Survivors of sexual assault have been deeply affected by the aftermath of Kavanaugh’s confirmation to the Supreme Court, and the effects are ongoing. For instance, the Rape, Abuse & Incest National Network experienced a 338 percent increase in its hotline traffic during the weekend following Dr. Ford’s testimony. For many, the hearings evoked memories of past pain and trauma. Dr. Ford’s testimony particularly affected survivors, many of whom were forced to relive their own experiences of sexual assault. Experts such as psychology professor Dr. Jennifer Freyd note that the entire confirmation process could have lasting impacts on the psychology of sexual assault survivors, as it invalidated their experiences and further tainted their image of the court, thus contributing to the broader deterioration of public faith in the judiciary.

Perhaps one of the most significant direct impacts of Kavanaugh’s confirmation was the rightward shift it had on the ideological balance of the Supreme Court and the concerns it raised about ideology trumping the rule of law. Since his confirmation, hopeful anti-abortion legislators in numerous states have passed laws that effectively ban abortion outright or limit the procedure at specific points in pregnancy; placed unreasonable restrictions on health professionals and institutions; and generally restricted women’s decision-making powers. Kavanaugh’s confirmation incentivized conservative legislators across the country to pass laws restricting abortion. In fact, many legislators are passing these laws in hopes that they will be challenged and end up before the newly constituted—and more conservative—Supreme Court, giving it the chance to undermine abortion rights at the federal level.

The number of abortion laws passed in state legislative sessions has skyrocketed in 2019, and these laws are significantly different from those passed before Kavanaugh’s nomination, signaling a considerable shift in tactics at the state level. They are going further than ever before to challenge Roe v. Wade, the Supreme Court’s ruling establishing federal protections for abortion. For instance, Georgia, Kentucky, Louisiana, Missouri, Ohio, and Mississippi have all instituted bills that ban abortion as early as six weeks, before most women even know that they are pregnant. Alabama has passed an even more restrictive ban on all abortions except those medically necessary to prevent serious health risks to women; the ban does not even make any exceptions for cases of incest or sexual assault. This restrictive abortion legislation is setting the stage for pivotal courtroom battles that could profoundly reshape abortion access in America. Given that the majority of Americans believe in upholding Roe v. Wade, this is further undermining the public’s faith in the judiciary’s legitimacy.

Part of a broader ethics issue

In the wake of Judge Alex Kozinski’s retirement, Chief Justice John Roberts ordered an investigation of sexual harassment in the courts to see how the judicial branch has dealt with such allegations. Kavanaugh’s confirmation only further opened the floodgates to allegations of sexual misconduct hidden within the judiciary. However, uncovering issues of sexual harassment only begins to shed light on the pattern of unaccountability that exists within the judiciary.

For instance, there currently is not an effective way to hold judges accountable for their actions. If federal judges are being investigated by their institution or their peers, they can easily put an end to the inquiry by retiring from their judgeship, as did former 9th U.S. Circuit Court of Appeals Judge Alex Kozinski. When the Judicial Council of the 2nd Circuit received a sexual harassment allegation against the judge, it dismissed the complaint just eight weeks after it had been filed because Kozinski stepped down from his position—despite a growing number of women who came forward with accusations. In another example, Maryanne Trump Barry, President Donald Trump’s older sister, was able to avoid further investigation into her participation in fraudulent tax schemes that violated judicial conduct rules by retiring from her federal appellate judgeship. Ultimately, because panels of judges nationwide have concluded that they lack the authority to continue investigating a judge who has stepped down from the bench, both Barry and Kozinski are able to collect an annual pension of approximately $220,000 for the rest of their lives.

Additionally, while the rest of the federal judiciary is bound by the Code of Conduct for United States Judges—a code that provides guidance on issues of judicial integrity, diligence, and impartiality—the Supreme Court is not. However, all nine justices are capable of committing various ethical oversights. For instance, in the past, justices have left assets off of their annual financial disclosure reports, spoken at partisan events, and ruled on cases despite obvious conflicts of interest. In 2014, the Supreme Court heard ABC v. Aereo, and Time Warner filed an amicus brief arguing that the court should rule in favor of the broadcaster. Chief Justice Roberts would not recuse himself from the case, despite owning as much as $500,000 in Time Warner stock at the time. In 2017, Justice Neil Gorsuch, a Trump nominee, attended a luncheon and gave the keynote address at the Trump International Hotel, whose revenue goes in part to President Trump. Just last year, Justices Stephen Breyer and Samuel Alito, who may own up to $300,000 in United Technologies shares, refused to recuse themselves in a certiorari case involving Rockwell Collins, a company recently acquired by United Technologies Corporation. The list of ethical oversights goes on and includes justices across the ideological spectrum. In the absence of a written code for the Supreme Court, the public is left in the dark about how to address and resolve judicial ethics violations, further compromising the public’s faith in the court’s legitimacy and fundamental integrity.

Conclusion

In order to counter the diminishing perception of its legitimacy, the judiciary must address issues of sexual harassment in the workplace and repair its reputation of impartiality. Effectively tackling sexual harassment requires expanding and mandating training for all judicial actors—including judges, clerks, and judicial staff—as well as establishing a confidential system that allows individuals to report sexual harassment anonymously. Prioritizing increased diversity of judges, establishing mandatory reporting mechanisms for judicial staff and judges who learn about issues of sexual harassment, and strengthening judicial ethics requirements and enforcement mechanisms in order to hold judges accountable for their misconduct are all also critical to improving the situation. Ultimately, enhancing public confidence in the judicial branch and redeeming judicial legitimacy is an ongoing process, but taking the necessary steps to combat the lack of accountability is imperative to the successful function of America’s courts.

Nina Reddy is an intern for Legal Progress at the Center for American Progress.