Strict Scrutiny - Sounds Legit
Episode Date: September 20, 2021Leah is joined by Jeannie Suk Gersen and Deeva Shah to discuss an important case, Roe v. United States, about the procedures for addressing workplace misconduct in the federal courts. Follow us on I...nstagram, Twitter, Threads, and Bluesky
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Mr. Chief Justice, may it please the court.
It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.
She spoke, not elegantly, but with unmistakable clarity.
She said, I ask no favor for my sex.
All I ask of our brethren is that they take their feet off our necks.
Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture
that surrounds it. I'm one of your hosts, Leah Littman, and today I am joined by two very special
guests for a very special episode. We have today with us Jeannie Suk Gerson, professor of law at
Harvard, and specifically the John H. Watson Jr. Professor of Law at Harvard and a contributing writer to The New Yorker,
as well as Deva Shah, an associate at Kecker Van Ness in San Francisco.
Welcome to the podcast, Jeannie and Deva.
Thank you.
Thanks so much for having us.
So today, Jeannie and Deva are here to discuss a case that is pending in the U.S. Court of
Appeals for the Fourth Circuit that is on a topic that we've addressed before on the podcast,
namely sexual misconduct in the federal courts and the current procedures to address and
remedy misconduct within the federal court system. Jeannie is one of the lawyers for the plaintiff
in the case, and Deva is counsel to some of the amici in the case. So we're going to discuss the
case, the various issues that it raises, as well as some related developments on the law regarding misconduct in the federal courts. So maybe we should just dive in to the case itself. Would
one of you mind just sharing with our listeners the basic facts that gave rise to the case?
The name, by the way, is Jane Roe versus United States. Sure, I'd be happy to do that. So Jane
Roe was a federal public defender, an assistant federal public
defender in North Carolina. And her supervisor, the first assistant of that office, began to
sexually harass her and behaving inappropriately, showing excessive interest in her sexually.
And when she went to try to seek help from the federal defender,
the head of the office, about his inappropriate behavior, and she told him that she was leaving
work early to avoid him and that she didn't feel safe and was having trouble doing her job because
he was interfering. The defender essentially told her to work it out with the first assistant. And at that point, she was really upset
and she decided that she would file a complaint using the federal judiciary's procedures.
And when she did that, she went through months and months of trying to get her claim heard.
And she was subject to an extremely unfair procedure in what was called the EDR process in the Fourth Circuit.
The EDR plan is the policy that the federal courts have.
And essentially, the EDR plan has a basic guarantee that employees will have recourse for discrimination on the basis of protected categories, including sex.
It prohibits harassment on the basis of sex, among other protected categories. So that's the
substantive guarantee that is in the EDR plan. And then the EDR plan lays out certain procedures
that are going to be in effect if someone files a complaint. And those procedures in this case,
some of them weren't followed. Some of them were followed, but the actual procedures were
inherently unfair. The complaint in federal court was on two bases. It was about equal protection,
basically sex discrimination. What she was claiming was that what happened at the federal defender's office was that she was discriminated against, sexually harassed, and also that deliberate indifference to sexual harassment on the part of the defender, the federal defender, and the judiciary officials who ran and investigated and adjudicated her
complaint, that that violated equal protection. And then also the claim was that she had been
put through an extremely unfair process, both inherently unfair in the process as written
and also as implemented. So part of why these procedures and this case are of interest is that the EDR process that
you mentioned is the process that is available not only to federal defenders, but also other
employees of the federal judiciary, including staff as well as law clerks.
And so the procedures that you are arguing and Jane Roe are arguing
were inherently unfair as well as implemented in an unfair way are those that are available
for clerks and other employees to also complain about misconduct in the federal courts.
So maybe if you wouldn't mind, could we go into a little bit more depth about what exactly the
procedures were, why they are inherently unfair. And then we can also talk
a little bit about how they might have been implemented unfairly in this case. But I think
our listeners would be curious to know, like, what exactly is the process available to employees of
the federal courts to complain about workplace misconduct? You know, you've already mentioned
that one of the aspects of unfairness was simply that the person, one of the people that Jane Roe complained about, would adjudicate her complaint. That doesn't seem like a neutral
decision maker. But what other aspects of the process were there that implicate this due process
claim? We have to first understand the broad context, which is that in general, there are,
of course, 30,000 employees of the federal judiciary, right? It's not just
law clerks. It's federal defenders and all of the employees who work in the federal judiciary
in all kinds of different roles, including administrative roles and many, many different
kinds of employees. And they are all covered by the EDR plan. The other thing is that this takes place in a broader context in which other employees of the federal government, as well as private sector, are covered by Title VII and other those federal statutes in which Congress made discrimination
on the basis of sex and other categories unlawful. So essentially, you've got a whole class of tens
of thousands of employees who are not covered by these federal employment discrimination statutes.
So that's the first sort of thing that we need to
understand before we see why it's so important to have an internal procedure within the judiciary
that actually effectively addresses discrimination. So Congress asked the Judicial Conference
in 1995 to make recommendations about how employees of the
judicial branch would be provided the kinds of protections that federal statutes would provide
against discrimination. And the Judicial Conference has repeatedly said, we don't need
legislation for protection against discrimination. We already provide our employees
with protection against discrimination. That is sufficient. And they have invoked things like
judicial independence to say that Congress should not pass laws to protect employees against
discrimination in the workplace if they work in the judiciary. So that's the state of affairs.
And so the model EDR plan that came about in all the different courts was in response to the idea
that Congress was not going to legislate or was being held off from legislating on the theory
that the judiciary can take care of itself and address discrimination effectively on its own. And then in this case,
in the EDR plan that was in effect during the Jane Rose employment at the Federal Public Defender
Office, in that plan, there were two kind of avenues that one could pursue if one experienced
discrimination. And those two avenues, you could pursue them either or,
or at the same time. One is through investigation and discipline based on the claim of wrongful
conduct. So in that scenario, one would file a claim and then the chief judge of the court,
and along with the unit executive, and in this
case, the unit executive would have been the federal defender, precisely the person that she
had filed a claim about, right, that he had engaged in deliberate indifference, discrimination,
and retaliation. That was her claim. But the procedure is set up so that the chief judge
and or the unit executive is supposed to ensure that the allegations are appropriately investigated and that they would be the one to find that there was wrongful conduct actually committed and that there should a procedure called the dispute resolution procedure.
And that's not about discipline. That's about kind of getting to some resolution
about the violation of somebody's rights. And so there was a very particular way it was set up,
which is that there were several mandatory stages before a person could actually request a hearing.
So the complainant has to go through something
called counseling, where the counseling means that the circuit executive who was serving as
the EDR coordinator would be serving as the counselor. And the request would be to have
some kind of early resolution of the matter so that you could resolve it before any hearing
even had to happen.
And then after the counseling, let's say that didn't really solve it, the complainant then has to go through a mediation where she has to mediate with the employing office. So in the
Jane Roe case, it would have been Jane Roe mediating with the federal defender office
in order to, again, discuss an alternative dispute resolution before you get to a hearing
and so the hearing wouldn't have to happen.
So the idea was they would mediate to some kind of voluntary satisfactory resolution.
And then if that didn't work out, if mediation failed to reach a resolution, then the complainant
only then could she request a hearing before
a presiding judicial officer. And in this case, that would have been the chief judge or
his designee. So am I to understand that the person doing the counseling, as well as the person
hosting the mediation, would be an individual against whom Jane Roe had filed a complaint
or a representative of that office? So the person who would be overseeing the investigation
under this EDR plan, in this particular case, that person was the federal defender.
And he was also the person who was designated under the EDR plan to oversee the investigation.
So yes, that and then in the dispute resolution, the head of the employing office, of course,
was the federal defender. And that federal defender would have been the person who was
in charge of coming up with some kind of resolution. So he's mediating himself and Jane Roe and also
counseling Jane Roe about him and his office, just to put this in the most simplistic terms.
Yeah. Well, he is the one, according to the EDR plan, he's the one who's representing
the employing office to try to come up with some resolution about
the accusation against him. And in the investigation, he's the one overseeing the
investigation and possibly imposing discipline on the person.
So just to extend this hypothetical, this would be like if, for example, during the
confirmation hearings for Justice Kavanaugh, we all decided that Justice Kavanaugh would arrive at a satisfactory resolution about defender was allowed to appoint the investigator.
And then later on, he disciplined the first assistant, the person who was accused of sexually harassing Jane Roe.
Now, two people were accused by Jane Roe.
One was the first assistant for sexual harassment. And Jane Roe also accused the defender of violating the EDR plan by being deliberately
indifferent and discriminating against her and also engaging in retaliation.
So he was an accused person and he ended up appointing the investigator and also disciplining
the first assistant.
This sounds legit.
Yeah. Ultimately, the defender was
disciplined for wrongful conduct after Jane Roe had already been forced to leave her job.
And the first, the defender was disciplined by the chief judge, but it was still the defender
who disciplined the first assistant, meaning that he was a decision maker in this case.
What I'll add here is much of what Jeannie has said about the process hasn't actually changed between 2013 and 2019.
And I think I want to acknowledge that the judiciary has made some changes to the processes and procedures.
So it's not as if nothing has changed and there are some clarifications,
but just in terms of sort of the broader picture that Jeannie painted here of the two options,
now there are three options. But the first is that you can seek informal advice about your
rights from either the EDR coordinator or a circuit director or the Office of Judicial
Integrity. And we can discuss a little bit
afterwards whether that's actually an option that many people have found fulfilling or not,
or one that they think has given them the advice to actually move forward with reporting.
And then the second option is that you can request an assisted resolution, which is
similar to this mediation and counseling process. And during that, there will be a preliminary
investigation and then potentially a mediation should the parties choose to move forward with
that. And then there's the third option of filing a formal complaint, which is where you eventually
get to a hearing. But as Jeannie mentioned, there are still steps, there are mandatory steps.
Sometimes mediation is required or investigation through assisted resolution is still required before you can get to the formal complaint and the hearing
process. And the circuit office or representative of the circuit office is still involved in those
preliminary steps. That's right. The circuit office is generally in charge of those preliminary steps. Although there are districts and circuits
that both have EDR plans, you can file within your district or within the circuit, depending
on the circumstances of your case. I believe that most public defenders, for example, go to their
circuit office to report, but I'm not sure that for every judiciary employee that they must go to either, you know,
it's dependent on your role. And I believe for law clerks, especially if you're a district court
law clerk, you can go to the circuit for advice in that first part, that informal advice, but then
you still may need to report within your district if your district's model EDR plan is at issue
and it's not the same as the circuit's model EDR plan. There issue and it's not the same as the circuits model EDR plan.
There are some pretty significant flaws, so I'll just really quickly name them, but I
think we can get into the specifics as we talk more about the facts.
First is just that the process is fairly opaque.
People don't necessarily know exactly what happens when you file this formal complaint, what kind of discovery is
available, and how to deal with those issues. If you can take depositions, if you can ask for sort
of the things we all take for granted in civil litigation. And the hearing is also not something
that is guaranteed. The second is just, I think there's a lack of meaningful confidentiality.
There's still the risk of retaliation. The third, which we've talked about, is that there's a lack of meaningful confidentiality. There's still the risk of retaliation.
The third, which we've talked about, is that there's no real indicia of impartiality between who's investigating, who is decision making in the process, who's talking about what remedies are available.
And then fourth, I think we haven't really discussed this, but the remedies are so limited that even saying that the judiciary's procedures cover the same kind of misconduct, well, the remedies that are available for these kinds of violations, Title VII, ADA, none of those remedies are actually available at the point where the remedies are severely limited, I think it creates
a real disincentive to be a part of this procedure or to invoke this process even when you are faced
with misconduct. And these are the procedures that the courts themselves have developed,
which is kind of wild given the number of doctrines and other contexts in which we assume
courts are experts on process and fair procedures, and that they will know what
constitutes a fair process versus an unfair one. And when they are asked to create a process,
this is the one that they come up with. I've spent the last decade really digging deep into
the due process obligations of institutions such as universities and workplaces inside and outside
of the government that are supposed to comply with certain basic fairness requirements when
adjudicating sexual harassment complaints and sex discrimination and race discrimination
complaints. And what we've seen as a pattern is that courts in general are perfectly willing to say, you had this process.
It had certain unfair aspects that we're willing to say that this often the complainants are male students or employees who have been fired or who've been excluded from schools
after an unfair process that was adjudicating whether they did something wrong.
And so we've just seen a pretty meaningful pattern of courts being willing to say
that these institutions have obligations to institute basically fair, fundamentally fair
processes. And in the face of that, it is also just as you're saying, Leah, it's just notable,
remarkable that the courts that are in the practice of evaluating these
processes in other institutions to see if they're basically fair have come up with a
process that is so unfair and that don't meet the basic requirements that are imposed
through the due process doctrine on all kinds of other institutions that employ
people or adjudicate their rights.
And so I do think that that is one of the really important aspects of this case to be
able to say, hey, every day you hold institutions accountable for fair procedures.
So let's use those standards to take a deeper look at what you do when faced with
allegations of sexual harassment. And these are fairness requirements that people are entitled to,
whether they're the complainant or the respondent. I think that what you're saying here, Jeannie,
kind of goes to also how uniquely insulated the judiciary is as an institution.
So they're responsible for interpreting all of these laws, for interpreting whether these processes are fair.
And in every other employment context, that's who we go to. Or even outside of an employment context and talking about Title IX, for example, that's who we assume can be the arbiter of whether a process is fair.
And so it makes it particularly ironic, I think, that here the judiciary is insulating itself
from having to deal with those questions or concerns about its own processes. It's not as
if we're asking yet at least other bodies of government or someone entirely separate to weigh in on
whether these procedures or processes are fair. Jane Roe is asking the judiciary in the context
in which the judiciary deals with all of these questions for every other sector of employment,
a civil lawsuit, to determine whether the procedures are in fact fair. When you take
the fact that the judiciary isn't covered by
many of these statutes that we've discussed, that the procedures that the judiciary does have are
on their face unfair or do not allow for the sort of impartiality that is generally required.
And then you combine that, I think, with the culture of the judiciary, this idea of not
speaking up, of not calling people out on this behavior,
something that Leah and I have talked about before on this podcast. I think that it just creates
such a unique insulation that not only are you functionally immune from lawsuits if you're a
part of the judiciary, but really I'm not sure what remedy there is other than doing what others have done, such as Olivia Warren and Heidi Bond, of just stepping entirely outside of the judiciary in order to ask for help.
The EDR plan specifically and explicitly says it is the exclusive remedy for violations of rights covered by the plan and that EDR decisions shall not be judicially
reviewable. So in addition to doing all this, putting in all of these mechanisms that are
unfair, it also says you can't do anything about it in the courts. So that is an aspect that I'll be very interested to see what the DOJ is going to say about that in their brief when it's filed this fall.
Because below, what they claimed was that the EDR process was judicial review, I guess, because it's handled by the judiciary, and that the hearing process, if you ever get there, after all, clearing all the
hurdles, the mandatory hurdles, like mediation, if you were to ever get there, that would be before
a judicial officer. So therefore, this is judicial review.
If they think the mediation and counseling process is what judicial review looks like,
I both have some questions and some concerns, because I don't
think that's how judicial review should be operating. And if it does, maybe I just fundamentally
don't understand the federal courts, but we'll be curious to hear more for sure.
Exactly. To me, it was a very brazen position to take below. So I'll be curious if they repeat that position in this appeal.
I'll also add that because this maybe wasn't obvious, I think, to a lot of people I had
spoken to about how the EDR procedure works. If there is any argument that this is judicial review,
it should be noted that the federal rules of civil procedure and the federal rules of evidence do not apply to any part
of the EDR process. You do not have any of the typical functionalities that would exist in
protecting the rights of an individual who is complaining, but also the rights of someone who
has been complained against. None of those sort of mechanisms that we all take for granted in civil litigation exist,
and the EDR process explicitly says, for example, that the federal rules of evidence do not apply
to these proceedings. And so if that wasn't obvious, I think now I wanted to flag that
if this is what judicial review looks like, yes, Leah, I also have many questions and concerns.
So we've been largely talking, I think, about the merits of Jane Roe's claims, namely whether she
was subjected both to unconstitutional sex discrimination and sexual harassment, as well
as the procedures that she was made to resort to deprived her of
fair process in violation of the due process clause. But echoing a theme that we have raised
on this podcast, and that has also appeared most recently in the litigation and decisions concerning
Texas SBA, the abortion bill, the courts largely avoided engaging with the merits of Jane Roe's claims in the
district court and instead decided that a set of threshold procedural rules or doctrines precluded
them from doing so. That is, instead of deciding whether Jane Roe was subject to unconstitutional
sexual harassment and whether the judiciary's EDR process was fair, they said we're not even
allowed to consider those claims because of these doctrines. So do either of you want to
talk about some of the grounds that the court raised? Or I'm happy to since, again, I've been
screaming about these things for a while now, but I'm happy to let you take the reins.
There are two kinds of defendants here,
official capacity defendants and individual capacity defendants. And Leah, you're very
familiar with all of the complicated doctrines that apply to both kinds of categories. And we
probably are not going to get too deeply into all of those internecine doctrines. However...
No, but I do want to at least explain to our listeners,
like when you sue an official in their official capacity,
you are suing them in their capacity of their job.
So for example, if you sue the federal defender
in their capacity as federal defender,
you are saying, in administering this plan,
which you had the authority to do under the EDR process, you acted unconstitutionally.
That is, it was you exercising the power of your office and power is granted to you. That was the
problem. Personal capacity suits, however, sue the person as an individual. And so the remedy
runs against them individually, not against their office. So for example, if I sue someone in their personal
capacity for damages, they have to pay me personally, not the official office or institution
of which they are a part of. Although, you know, the institution might choose to pay the damages.
Right. So when you sue someone in their official capacity, you're not asking for damages,
you're asking them to do something.
So in this case, Jane Roe was asking for injunctive relief, like prospective injunctive relief or declaratory relief.
So basically a declaration that this was an unconstitutional set of procedures and also that she wanted reinstatement or front pay in lieu of reinstatement as an equitable
remedy.
So essentially, this was not a request for compensatory damages against the official
capacity defendants.
And even so, the district court somehow said that the official capacity defendants could
not be sued like this because this was barred by sovereign
immunity. And of course, sovereign immunity is the doctrine that says the sovereign cannot be sued
except with its permission. So the idea was that these federal officials could not be sued because
of sovereign immunity. And it was really weird. I just say that was a weird thing to say,
given that it's very well established that when any government officials are accused of acting
unconstitutionally, they can in fact be sued because the doctrine of sovereign immunity
does not apply to claims for equitable relief. Damages, that's another story. But if you're
asking for equitable relief, like an injunction or declaratory relief, sovereign immunity does
not apply. And so that's the error that we are seeking to have corrected. Because the whole idea
that all of the official capacity defendants in this case,
the public defender, the Fourth Circuit, the chief judge, the judicial conference,
the Fourth Circuit Judicial Council, the parties that instituted these procedures,
that none of them can be sued for unconstitutional conduct because of sovereign immunity.
That's just not at all consistent
with federal law. But as to the individual capacity defendants, which some of the official
capacity defendants are also being sued in their individual capacity, and then there's some who
are only being sued in their individual capacity, this is rather confusing. The court did actually reach some of the merits to say you haven't stated a claim.
You have failed to say nothing you've said is even remotely problematic.
It's not even plausible that this would rise to the level of a deprivation of process.
Exactly. So they have said nothing you have alleged would rise to the level of a claim under equal protection or due process.
So maybe this is how judicial review works. I'm starting, maybe I'm seeing things clearly now.
This is not a motion to dismiss where you have to assume that all of the facts alleged are true.
Yeah, I think plausibility here is just the thing that I keep coming back to, especially reading that portion of the district court's order.
We've already talked about, I think, not just the level of plausibility, but how Jane Rose due process rights.
I mean, this is not a process that is fair.
It is not a process that is fair. It is not a process that is impartial.
It is not a process that can guarantee that because the very people who are making the decisions are also frequently appointing, for example, the federal public defender.
They're making choices and now they have to go back and say, well, oh, I appointed
that person, but now I need to make sure that that person is disciplined.
That's not how the adjudicatory process and the way that we think about it today, just it's not the same process in the EDR plan.
But I'll also note that for anyone who is interested in getting into the specifics of
what Jeannie talked about with sovereign immunity issues, I think the opening brief in this
litigation, but also professors Chemerinsky and Huck have also filed
an amicus brief on the sovereign immunity issue. I would highly recommend reading both of those
because I think that for those listeners who are intrigued by how this works and sort of
the issues underlying sovereign immunity, the briefs do a fantastic job of explaining why sovereign immunity should not apply here.
So maybe this is a natural point to shift to some of the amicus briefs that have come in to support Jane Roe.
Diva, you mentioned one by federal court scholars Erwin Chemerinsky and Aziz Hook.
Erwin is, of course, the dean of law at Berkeley, and Aziz is a very well-known and well-regarded
professor at University of Chicago. I noted at the opening, Diva, that you are counsel to one
group of amici. So do you want to tell us about that amicus brief and any other kind of notable
ones to highlight? Sure. So I'll start generally with, that's one brief that we've talked about,
is the constitutional law professor professors brief on sovereign immunity.
We there is also a congressional brief from members of Congress about it sort of gets into they don't take a position on who they're supporting in the litigation.
But it does talk about how these rights and their view are available on rights that Jane Roe or other plaintiffs should already be able to access.
And that brief was filed by Constitutional Accountability Center, the organization led
by Elizabeth Wydra, who appeared on the podcast to discuss, among other things,
the MPP and CDC orders. So just FYI for our listeners.
Yes. And I'll focus first on the brief that I was a part of. And then I think maybe Jeannie or I can also talk
about the second one. So the one that Kecker Van Ness and Peters, a team of us was in charge of
writing or putting together was on behalf of current and former judiciary employees,
including federal public defenders, law clerks, and employees of the
administrative office who had experienced or witnessed harassment and discrimination based on
sex, race, sexual orientation, pregnancy status, and other bases while they were working for the
courts or defenders' offices across the country. And so some of the MEG chose to identify themselves by name, but many did not. So if you look at the brief at the appendix, you'll see that probably two thirds of the individuals who shared their stories with us and gave us permission to share those stories in the brief did not sign with their names for fear of retaliation or further harassment and discrimination, but also because it was quite
difficult for them to share their stories. And I think many are not ready to do so publicly.
I'll also note that the concerns of retaliation deterred many other potential amici from signing
the brief. So we had 26 people who signed the brief anonymously or with their name. But I would say we spoke to over 60
people about this brief, and there were dozens who expressed interest but then decided that they just
could not feel comfortable in any capacity telling their stories. And I think that that was something
that we had to deal with pretty significantly. Just to give a brief overview of what the purpose of our amicus brief,
it was just to show that harassment and discrimination still happens. Even after the
2019 plan has been put into place, some of the stories happen very recently. But to also show
the ways in which the EDR process or what's also called the FEPs process, which is somewhat similar
to EDR, but is for the
administrative offices employees, fail. And we've already talked through the sort of the four reasons
why those procedures are severely flawed. But also the goal of this brief is to just show that
self-policing does not necessarily work and that it especially does not work when the very procedures that are being used to
self-police are flawed. It starts looking more and more like self-protection instead of policing.
And I should say, I was one of the signatories to this amicus brief, just so people are aware.
And then you also mentioned another amicus brief that maybe we should highlight. One of the amicus briefs was led by three organizations and then dozens of organizations
signed on to that brief.
And the three leading organizations for the brief were the National Women's Law Center,
Purple Campaign, which is an organization focused on workplace harassment, discrimination,
and Legal Momentum. which is an organization focused on workplace harassment, discrimination and legal momentum.
And then dozens and dozens of organizations signed on.
And that brief was really focused, I think, on the equal protection piece of the case. idea that there are certain standard kind of best practices that have been developed over the
decades for how to deal with workplace discrimination. And there's some standards
understandings that are kind of conventional at this point and understood throughout various
industries and various workplaces. And that the judiciary's EDR plan and what happened here in its implementation
really, truly deviate in a meaningful way from things that we take for, in a lot of cases, to be,
you know, just basic, basic expectations for what would happen in a workplace when somebody
reports discrimination. I will add that one of the interesting issues we had as groups of Amici
was finding counsel. So I also signed on to the brief that we authored. I was interested in
sharing my story. There were many other people who were interested in sharing their stories,
either at a policy level and in talking with the group that filed the
Purple Campaign and Legal Momentum and National Women Law Center's amicus brief, and also the
that we represented. We had a lot of trouble finding counsel interested in helping with the
amicus effort. Obviously, I had spoken to my law firm about taking on this work, and that was fine.
But we were hoping that perhaps a coalition of law firms to file these briefs would help sort of punctuate the importance and sort of explain why this problem is not just one limited to the judiciary, but it's something that affects the profession.
It affects the pipeline of people. Many people
who want to be lawyers in this profession but are kept out already, people of color, women,
first-generation individuals, tend to also be the people who come into these jobs and find it
difficult to report are facing many of these issues based on racial discrimination and sexual
discrimination. We thought that there would be many people
who would be interested in helping with these efforts.
And it turned out actually that it was quite difficult
to find people who wanted to help,
not just the Amici, but also Jane Roe.
I think Jeannie obviously served as counsel,
but we heard from many people who we thought would understand
the importance of this cause that they didn't feel like taking this position against the judiciary
was going to be helpful for their other clients, that they felt they wouldn't necessarily say the
word retaliation, but they felt as if they couldn't take this position without fearing that
the judiciary in some way would look down upon that. We heard from so many people, well, our
practice is in the federal judiciary. We work in the federal courts. And instead of seeing that as
an important reason to sort of push for this change for an institution that we all practice
within and care about, it was actually quite difficult to find people to work on these briefs
and to take this project on. And so I just want to acknowledge that that's not just an issue
for these briefs, but also if you can imagine the people who actually go through these EDR
procedures are allowed to have their own counsel. We get emails frequently asking for someone to
serve as pro bono counsel. And so if you're listening to
this podcast and you're interested in helping with those efforts, there are people who want
representation in this space. But for the exact reasons that I just discussed, it's quite difficult
for them to find any representation. This is such an important point because, of course,
just we've been talking about ideas of conflict of interest and lack of
impartiality and fear of retaliation, that whole brew that comes together within the judiciary,
but it's broader. The fact that it's so hard to challenge these and even to just bring this case
is part of why this case is so important, that it's so true that I think that many firms would have
looked at this and said, I can have nothing to do with this. Our firm can have nothing to do with
this, given that we practice in front of the federal courts. That is exactly what we do. We
need the federal courts to look at us in a way that is not oppositional to the federal courts.
And if you're suing the federal courts,
they might think it's not a great look. And I do think it's no accident that me serving as
counsel on this case for Jane Roe, I am not at a law firm. I have a level of independence,
as many academics feel that they do. And I don't think that's an accident.
And just to spin this out one step further, if it is the case that law firms are wary to represent
people who want to make a complaint against the federal courts or sue to challenge federal court
procedures, that is also going to be a deterrent to people wanting to raise these complaints in
the first place. They will also be scared about what
the federal courts will do or how they will respond. I think they will also wonder whether
future employers will have questions about whether to hire someone who has so explicitly challenged
the federal courts. And those are the kinds of concerns that make the existing procedures so
problematic in some respects, because there's no independent, neutral third party to address these
claims or complaints. They're instead all housed within the federal courts. And that creates this
ludicrous system where, you know, as Devo was saying, you get requests from people for counsel that is difficult
to find and, you know, occasionally emails or calls from people who will want to talk about
their options. And that is not a sane way to sort through workplace misconduct complaints,
you know, to outsource them to like random people who by virtue of their public commentary seem like
friendly faces and friendly audiences,
like there needs to be an actual process that is fair and accessible to people. And that just does
not exist right now. So maybe one last question. What can people do to help if they're concerned
about, say, the lack of fair process for employees of the federal courts or concerned about this
case?
You know, how can they help?
There are multiple ways I think that people can help.
And one is just what I mentioned right now, which is there are people who are seeking
counsel.
And so if you're interested in being pro bono counsel for any of these individuals, that's
a very easy way to support someone who is going through this
procedure. But of course, I don't think that actually fixes the larger problem, which is that
having been counsel for someone in these proceedings before, that doesn't actually
fix the underlying problems of a lack of impartiality and fairness. And so I'll start
first by just saying that Congress has proposed the Judicial
Accountability Act. There are a few Congress people who have proposed that language. I would
encourage people to go and look at the Judicial Accountability Act, to call Congress people to
support the Judicial Accountability Act. I'm not saying that it will fix all of the problems that
we have talked about today. I think many of those problems also require a cultural change, but I think looking at the text of the Judicial Accountability Act and the fact that it would
give judicial branch employees the same sort of remedies and rights that are available to all
other employees in the private sector generally is really important. And it would also protect
whistleblowers by prohibiting retaliation in a much more explicit way. And so I think that's one
way to support these efforts. And another way is to think about sort of your own personal role
in how these issues continue to happen and are fostered. And so this feels a little bit biased,
but I'm going to put it a plug. Leah and I wrote an article in the Northwestern Law Review that
talks about sort of the ways in which these systems and the culture of the judiciary impacts the law profession, the ways in which we talk about, for example, clerkships, feeds into sort of questioning these systems in the way that they
exist and questioning sort of the way that the judiciary polices itself and sort of the way that
we put the judiciary on this pedestal instead of also holding the judiciary accountable in the same
ways that we hold other institutions accountable. It's just really important to redouble our
commitment to fair procedures, no matter what the context, who is the person
complaining, and what the gender of the person is, whether you're in a school or in a private
workplace, a corporation, a law firm, or working in the federal government in whatever branch.
The thing that we need to insist on is to make sure that these things are handled in a way that treat parties
fairly, that guarantee some sort of impartial forum in which people can be heard, and that
decision making is unbiased. Those are really, really fundamental and basic principles. And
it's very hard to imagine that they would be
controversial. And yet we're in a situation where certain parts of our society, the federal
judiciary being one of them, they need to do some work to figure that out. And I think that all of
us can play individual roles in making sure that whatever institutions we're in,
we look out for that and make sure that those procedures are fair.
Thank you so much, Jeannie and Deva, not only for making time to appear on the podcast,
but also for your work on this case and these issues more broadly. Thank you to our producer,
Melody Rowell. Thanks to Eddie Cooper for making our music. And thanks to all of you for listening.