Judicial power should not be a license to harass  

For new lawyers, clerking for a federal judge is a dream job. These prestigious positions offer a behind-the-scenes view of the judicial process, where senior members of their profession mentor young law clerks. Given the power and prominence of federal judges, clerkships are often a stepping stone to top government jobs and major law firms.  

But for many female law clerks, that dream turns into a nightmare. A recent NPR investigation revealed widespread harassment, bullying and discrimination in federal courts — particularly against women, pregnant clerks and those with disabilities. Worse, a culture of fear silences victims, as they risk retaliation for exposing a judge’s misconduct.  

This is not a new problem. In 2017, a federal judge retired after reports that he had repeatedly shown pornography to female clerks and asked inappropriate questions about their sex lives. In response, Congress held hearings, and Chief Justice John Roberts appointed a judicial working group. 

The result? Weak, toothless reforms. Today, a full 10 percent of federal court websites don’t even provide information on how to report workplace misconduct.  

So here we are again. Last summer, a federal judge in Alaska resigned over allegations of sexual assault and an improper relationship. The NPR report makes clear this was no isolated incident — it described a toxic workplace culture that enables harassment and bullying at the highest levels of our legal system. 

Aliza Shatzman, a former law clerk who founded the Legal Accountability Project, describes the federal courts as “the most dangerous white-collar workplace in America.”

Three structural features of our legal system protect predatory judges from consequences.

First, the U.S. Constitution grants more than 1,400 federal judges lifetime tenure, meaning they can only be removed through impeachment. With almost total job security, many judges feel no pressure to act responsibly.  

Second, unlike private employers, federal courts are exempt from workplace harassment laws. A corporate executive who harasses an employee or tolerates an abusive workplace can be sued, but a federal judge cannot. This loophole shields abusive judges from legal accountability.  

Third, federal judges oversee themselves and fiercely resist any attempt at external oversight. The Supreme Court’s recent ethics “reform” after revelations of undisclosed luxury trips and gifts was a symbolic gesture. If justices won’t hold themselves accountable for financial ethics, why would they take workplace misconduct seriously?  

To be clear, judges need independence to protect the rights of unpopular or underrepresented individuals. But independence should not mean impunity.  

If a private company tolerated the same level of harassment as the federal courts, it would be sued into bankruptcy. Employees would take legal action against harassers, while shareholders would hold executives accountable for allowing toxic work environments. 

In 2019, for example, McDonald’s fired its CEO and clawed back over $100 million after a Delaware court exposed rampant workplace sexual misconduct under his leadership.  

Yet in federal courts, accountability is nonexistent. That must change.  

We must take at least three steps to fix this broken system. First, Congress must amend federal law to let court employees sue judges for harassment and workplace misconduct. There is no reason why life-tenured judges should play by different rules than private employers.

Second, any responsible company facing these reports of workplace misconduct would hire an outside law firm to uncover the full scope of the problem. The federal courts must do the same. If Chief Justice Roberts refuses, Congress must commission an independent investigation.  

Third, judges who harassed employees should be impeached. But accountability must go further — senior judges who ignored or tolerated the harassment should face consequences, too. That includes the judiciary’s CEO, Roberts.  

Federal courts should be a model of justice, not a breeding ground for workplace abuse. We must end this culture of unaccountability — no judge should be above the law.

Paul E. McGreal is the James L. Koley Endowed Professor of Constitutional Law at Creighton University School of Law. He has 30 years of experience writing, speaking and teaching at the unique intersection of constitutional law and corporate compliance and ethics programs that address workplace misconduct.