*This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"
by Nancy Gertner, ACS Board Member and 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.”