by Nancy Gertner, Senior Lecturer on Law, Harvard Law School

I want to stop focusing on the United States Supreme Court as if it is the site of all decisional law, or even all constitutional law. It is not. It takes fewer and fewer of the cases in which cert is sought; even fewer cases that are otherwise important are not in the mix at all.

I do not want to ignore the lower federal courts – district and appellate – as progressives have done, except insofar as these are routes to the Supreme Court. I want to imagine a system in which the lower federal courts are in fact common law courts, considering new constitutional issues on the merits, prefiguring arguments that may one day make it to the Supreme Court – or not—either way shaping the way justice is actually delivered.

That is not the system we have. As I have written since leaving the bench, the lower federal courts for a variety of reasons, are schooled in what I have called “duck, avoid and evade.” They have resorted to a host of doctrines that narrow access to justice; they have created a set of procedural trip wires to avoid dealing with substantive issues on the merits; they have reduced civil rights cases, police misconduct litigation, to name a few, to kabuki rituals in which the plaintiffs regularly lose long before trial. This was not judicial restraint, as the concept is understood; this was avoiding substantive principled decision making of any kind. And when they engage on the merits, too often, rather than trying out new constitutional concepts, and new applications, they rigorously enforce the old. (I wrote about this in an article entitled “Opinions I Should Have Written.” Richard Re described a similar phenomenon as “Reversing From Below.”) Many lower court judges try to predict the direction of the Supreme Court, which for the past twenty years has become more conservative.  The Walmart decision for example, was used by some district courts to justify the dismissal of numbers of employment discrimination class actions, interpreting the decision far more expansively than was necessary. It was almost as if they were applying not just what the Court said, but what it implied, predicting the rightward direction in which it was moving. And these tendencies cut across the appointing president, the party affiliation, etc. There are obvious exceptions, but the trends are there. It is a version of what Robert Cover wrote about in Justice Accused, describing the Northern anti-slavery judges who enforced the Fugitive Slave Act with a rigor that was not required by the law. He called it “judicial can’t.”

After the Trump election, I was pessimistic about the role of the Court and especially the lower courts as a backstop to abuses of power of all sorts, not merely the president, but customs officials, police, etc.  And I was pessimistic even as the need for robust judicial review was even more urgent. This was so not simply because of the failure of checks and balances in the usual sense – one party control of Congress and the presidency. It was so because of the undermining of other checks—an independent civil service, a relatively independent Department of Justice, etc.

But I was wrong. I began to believe that to some degree – I do not want to overstate this — what I have come to describe as “judging in a time of Trump” has a different resonance. It was one thing to duck, avoid and evade when you believe that the system is largely working. It is another to do so when you think there are dangers of real constitutional overreach. An analogy in the pre-Trump world: Title VII decisions over the past twenty years have narrowed the statute’s reach to cases of intentional discrimination. The unstated premise was that the market was working fairly; the we were post-race, post gender. The law’s job was to identify the aberrant individuals who did not get the anti-discrimination message. After this electoral campaign, the accounts of overt racism and sexism, it is – or should be – more and more difficult to accept that premise. I would hope – predict is too strong a word – that the law would reflect those changes.

I want to think about bolstering judicial decision making at the level of the lower federal courts, attacking the duck, avoid and evade doctrines not simply in the academic literature, but in court, making it clear that this is not commendable judicial restraint, but the undermining of access to justice. I want to use empirical tools to identify the judges who literally dismiss all civil rights cases, who have never seen an excessive force case pass muster. I want to have an input in judicial training. My “baby judge’ classes were devoted to case management, not opinion writing.

And with respect to the academic literature – including this conference – I want academics to stop speaking in tongues, to make their insights more available to judges and practitioners, to write for a larger audience. I wrote a decision, Centola v. Potter, in which I held that since discrimination was, at core, about stereotyping men (she is not a “real woman” because she is too mannish; he is not a “real man” because he is effeminate) it surely should include discrimination on the basis of sexual preference.  The idea was not original with me. It derived from an article years before written by Professor Sylvia Law of New York University, whom I knew well, whose work I had followed. (The Seventh Circuit has recently taken a similar position; I do not remotely claim credit. There was a mobilization of amicus voices in that case; the EEOC had weighed in as had others. And there was a public mobilization as well which clearly affects the context in which cases are heard.) I have tried to straddle an academic career with a career in practice, but we have to make the enterprise easier.

To be sure, this administration will be able to fill a substantial number of judicial vacancies, but the selection process is far simpler for the lower federal courts than the Supreme Court, far less politicized in many – not all – jurisdictions. And, in any event, as I mentioned, “duck, avoid and evade” characterized judicial appointees of all stripes. Progressive legal doctrine will make a difference, but that needs to be translated at all levels. I want to think about how to accomplish that.