Judging The Justice System In The Age Of Trump: Nancy Gertner – Original Jurisdiction | David Lat

Report on the Intersection of Judicial Practice and Sustainable Development Goals: An Analysis of Judge Nancy Gertner’s Career

An examination of the career of former U.S. District Judge Nancy Gertner (Ret.) provides a significant case study on the role of the legal profession in advancing the United Nations Sustainable Development Goals (SDGs). Her work as a litigator and a federal judge demonstrates a consistent engagement with the principles underlying SDG 5 (Gender Equality), SDG 10 (Reduced Inequalities), and SDG 16 (Peace, Justice and Strong Institutions).

Advancing Gender Equality (SDG 5)

Judge Gertner’s career is a testament to the challenges and triumphs related to achieving gender equality and empowering all women and girls within historically male-dominated institutions like the legal field.

Confronting Systemic Barriers

Her early career was marked by direct confrontation with discriminatory practices, a key barrier to achieving SDG 5.

• Faced familial opposition to pursuing higher education, a privilege reserved for male family members.
• Encountered widespread sexism in the legal hiring market of the 1970s, with firms explicitly stating a woman could not succeed as a litigator.
• Was part of a cohort at Yale Law School with only 20 women, highlighting the institutional gender imbalance in elite legal education at the time.

Legal Advocacy for Women’s Rights

As a practitioner, Judge Gertner’s caseload directly contributed to the advancement of women’s legal rights and protections.

1. Pioneering Legal Defenses: She litigated one of the first cases utilizing the “battered woman syndrome” as a defense to murder, a critical development in recognizing the impact of domestic violence within the justice system.
2. Combating Discrimination: She maintained a robust employment-discrimination practice, handling cases of sexual harassment and racial discrimination, thereby working to ensure women’s full and effective participation and equal opportunities in the workplace.
3. Representation in High-Stakes Cases: Her representation of Susan Saxe was predicated on the client’s desire to be represented by a woman, symbolizing a demand for female presence and voice in the highest levels of legal defense.

Upholding Peace, Justice and Strong Institutions (SDG 16)

Judge Gertner’s entire professional life has been dedicated to the mechanics of the justice system, reflecting a deep engagement with the targets of SDG 16, which aims to promote just, peaceful, and inclusive societies.

Promoting the Rule of Law and Access to Justice

Her work before and during her time on the bench focused on ensuring the legal system was both accessible and fair.

• Her early practice at a small civil-rights firm involved representing clients in draft, civil rights, and criminal cases, ensuring legal access for individuals challenging state power.
• As a judge, she emphasized the importance of judicial independence and the judiciary’s role in checking executive power, a cornerstone of a strong, accountable institution.

Critique and Reform of Judicial Processes

A significant portion of her judicial career was spent challenging and seeking to reform elements of the justice system she found to be inequitable, particularly in sentencing.

1. Sentencing Guidelines: She was a vocal critic of mandatory sentencing guidelines, which she described as producing “unfair, unjust, and disproportionate” outcomes. She used her written opinions to highlight these systemic flaws, contributing to the discourse that ultimately led to the guidelines becoming advisory.
2. Focus on Human Stories: Her forthcoming book, Incomplete Sentences, which revisits the stories of individuals she sentenced, seeks to humanize the judicial process and advocate for a system that considers factors like addiction, trauma, and adverse childhood experiences, aligning with the goal of a more inclusive and rehabilitative justice system.

Assessment of Contemporary Threats to Strong Institutions

Judge Gertner provides a critical analysis of the current pressures on the federal judiciary, which she views as a fundamental threat to SDG 16.

• She notes that judges are facing unprecedented challenges and threats to their personal safety and professional legitimacy.
• She expresses concern that the judiciary’s ability to function as an independent check on power is being systematically undermined, risking a constitutional crisis.
• She evaluates the performance of different levels of the judiciary in “meeting the moment,” commending the district and appellate courts while critiquing the Supreme Court’s use of the “shadow docket” as a failure to provide transparent and accountable justice.

Addressing Inequalities (SDG 10)

Judge Gertner’s personal background and professional choices reflect a commitment to reducing inequality within and among countries, a core mission of SDG 10.

From Personal Background to Professional Mission

Her life trajectory informed her legal work and provided a unique perspective on social and economic disparity.

• Coming from a lower-class background on Manhattan’s Lower East Side and being a first-generation college graduate and professional gave her insight into the barriers faced by marginalized communities.
• This experience fueled a career dedicated not to lucrative cases, but to those she found meaningful, often involving clients facing systemic disadvantages.

Legal Work as a Tool for Reducing Inequality

Her career demonstrates how legal practice can be a direct mechanism for challenging and reducing inequality.

1. By representing criminal defendants, civil rights plaintiffs, and victims of employment discrimination, she worked to ensure that the justice system did not disproportionately penalize the vulnerable.
2. Her critique of sentencing guidelines directly addresses how seemingly neutral policies can perpetuate and exacerbate racial and economic inequalities in judicial outcomes.

Analysis of Sustainable Development Goals in the Article

1. Which SDGs are addressed or connected to the issues highlighted in the article?

The article, through the narrative of Judge Nancy Gertner’s life and career, touches upon several Sustainable Development Goals. The analysis identifies the following SDGs as being most relevant to the issues discussed:

• SDG 5: Gender Equality – This is a prominent theme, highlighted by Judge Gertner’s personal experiences with gender-based discrimination in education and her professional career, as well as her legal work on women’s rights issues.
• SDG 16: Peace, Justice and Strong Institutions – The core of the article revolves around the functioning of the justice system, the rule of law, judicial independence, and access to justice, which are central to this goal.
• SDG 4: Quality Education – The role of education as a tool for social mobility and empowerment is evident in Judge Gertner’s journey, as is the historical struggle for women’s equal access to higher education.
• SDG 10: Reduced Inequalities – The article addresses inequalities based on gender and socio-economic background, and Judge Gertner’s legal work in fighting discrimination directly aligns with this goal.

2. What specific targets under those SDGs can be identified based on the article’s content?

Based on the specific topics discussed in the article, the following targets under the identified SDGs are relevant:

1. Under SDG 5 (Gender Equality):
   • Target 5.1: End all forms of discrimination against all women and girls everywhere. Judge Gertner’s account of her father’s reluctance to pay for her sister’s college because she was a girl (“If we were boys, we would’ve had college paid for”) and facing sexism when seeking employment (“literally people who told me that I would never succeed as a lawyer”) are direct examples of the discrimination this target aims to eliminate.
   • Target 5.5: Ensure women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic and public life. The article points to the historical lack of participation, noting there were only “20 women in my class” at Yale Law School. Judge Gertner’s eventual appointment to the federal bench exemplifies progress toward this target of women achieving leadership positions in public life.
2. Under SDG 16 (Peace, Justice and Strong Institutions):
   • Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all. The entire discussion about the judiciary, from her representation of marginalized clients like Susan Saxe to her concerns about the current administration potentially ignoring court orders, is about promoting the rule of law. Her difficulty in finding lawyers for pro se cases (“I can’t tell you how difficult it was”) highlights the challenge of ensuring equal access to justice.
   • Target 16.6: Develop effective, accountable and transparent institutions at all levels. Judge Gertner’s critique of the Supreme Court’s “shadow docket” for its “perfunctory decision making” directly addresses the need for transparent and accountable judicial institutions. Conversely, her praise for lower courts that have “thoughtful and careful” decisions demonstrates the ideal of effective institutions.
3. Under SDG 4 (Quality Education):
   • Target 4.5: By 2030, eliminate gender disparities in education and ensure equal access to all levels of education… The anecdote about her father’s refusal to pay for his daughter’s college education is a clear example of the gender disparities in education that this target seeks to eliminate.
4. Under SDG 10 (Reduced Inequalities):
   • Target 10.3: Ensure equal opportunity and reduce inequalities of outcome, including by eliminating discriminatory laws, policies and practices… Judge Gertner’s work on a “robust employment-discrimination practice, dealing with sexual harassment, dealing with racial discrimination” and her critique of mandatory sentencing guidelines as “unfair, unjust, and disproportionate” are direct efforts to combat discriminatory practices and policies that create inequalities of outcome.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

The article provides qualitative and anecdotal data that can be seen as proxies or examples of indicators for measuring progress.

1. For SDG 5 (Gender Equality):
   • Indicator (Implied): Proportion of women in tertiary education and high-level professions. The article provides a specific data point for the past: “There were 20 women in my class” at Yale Law School in 1971, out of a class of 165. This serves as a baseline to measure progress in women’s participation in legal education and the profession.
   • Indicator (Implied): Prevalence of discriminatory social norms. The article’s description of being told women couldn’t be litigators and the media’s sexist comparison of her to Lorena Bobbitt serve as qualitative indicators of discriminatory attitudes that can be tracked over time through surveys and media analysis.
2. For SDG 16 (Peace, Justice and Strong Institutions):
   • Indicator (Implied): Public and institutional adherence to judicial rulings. Judge Gertner’s primary worry that “the president will ignore and disobey a Supreme Court order” implies that the rate of compliance with high court orders is a critical indicator of the health of the rule of law.
   • Indicator (Implied): Independence of the judiciary. The mention of threats against judges and political rhetoric describing them as “rogue judges” are qualitative indicators of pressures on judicial independence.
3. For SDG 10 (Reduced Inequalities):
   • Indicator (Implied): Existence of policies that may lead to disproportionate outcomes. The discussion of the shift from “mandatory” sentencing guidelines to “advisory” ones serves as an indicator of policy change aimed at reducing potential inequalities in the justice system.

4. Table of SDGs, Targets, and Indicators

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