Strange Bedfellows #4: Jury Selection All Over The Place

Jury selection appears often in the Con Law canon.  The first SCOTUS case to find a violation of the Equal Protection Clause, Strauder v. West Virginia (1879), involved a statute that included only white men in the jury pool.  Hoyt v. Florida (1961), an anti-canonical case usually taught as an example of the bad old days before sex classifications were deemed (quasi-) suspect, involved a law that excused women from the jury pool.  Batson v. Kentucky (1986) involved a prosecutor’s peremptory strikes on the basis of race, but it tends to be taught in Criminal Procedure courses.  Its progeny Edmonson v. Leesville Concrete (1991) applied Batson to peremptory strikes in civil cases; it is taught more often in introductory Con Law courses than is Batson, because it is conceptualized as a case about the state action doctrine.  More recently, the first US Court of Appeals decision holding sexual orientation to be a (quasi-) suspect classification (included in my casebook) arose in the civil Batson context, after a gay man was peremptorily stricken from a jury deciding an antitrust claim against a manufacturer of HIV medications.  SmithKline Beecham v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014).

These decisions are often taught and presented in casebooks as if jury selection just happens to be the factual setting in which a legal question (usually involving equal protection) just happens to arise. This is a lost opportunity, because the jury trial can be worthy of independent consideration in a Con Law survey course.  Even if not taught together on the same day or same unit, it can be valuable to use such cases to emphasize the jury as an institution of constitutional dimension.

Trial by jury is one of the few individual rights enumerated in the original constitution (in Art III, §2), and then reiterated and expanded in the 6^th and 7^th Amendments. Strauder considered jury service so important that it described ineligibility in terms usually associated with the badges and incidents of slavery: statutory exclusion from the jury pool “is practically a brand on them, affixed by the law, an assertion of their inferiority, and a stimulant to racial prejudice.”

Conversely, jury service can be seen as a badge or incident of citizenship. The jury allows ordinary citizens to control the workings of the judiciary in a way not possible for the legislative or executive branches.  Although Art. III judges are not selected through popular election, the jury makes the courtroom a site of self-government in action. This deep connection between jury service and voting explains why in most jurisdictions, one is eligible for jury service only if one is eligible to be an elector (voter).  Indeed, in 1887 the women in the state of Washington lost their statutory right to vote as a result of a criminal defendant’s challenge to the practice of seating women on the jury.  See The History of Women’s Jury Service in Washington (2005).

Cases involving jury selection can be a useful opportunity to consider the role of chance in the law.  I like to begin my Civil Procedure courses by identifying four main ways one might resolve private disputes: (a) negotiated agreement, (b) binding decision by third parties; (c) violence; and (d) chance.  Our system privileges voluntary agreement; it provides a judicial system as a backstop if agreement does not emerge, in hopes of avoiding reliance on violence and chance.  But just as the system cannot entirely eliminate violence (those judgments are ultimately executed through the threat of incarceration), it does not entirely eliminate chance, either.  Among the main ways the luck of the draw affects litigation is in the assignment of a judge, the summoning of a jury pool, and the selection of a petit jury.  In these settings, chance is tolerated, even if it might predictably result in deviations from the mean in any given case.  Chance has constitutional implications as well, as seen in the majority’s reasoning in Washington v. Davis (1976). Because we allow the occasional all-white jury as a natural consequence of a jury system that involves random selection, there must obviously be no constitutional bar to facially neutral government policies with racially disparate impact.

Finally, viewing jury selection as an independent constitutional topic can help show how any one case might involve more than one individual right—and indeed, how multiple constitutional guarantees can interact with each other to create an entire ecosystem of rights. As the Batson cases recognize, jurors have a right (as well as an obligation) to serve, while litigants have a right to trial by a representative jury.  The combination of these two principles were ultimately needed to overrule the holding in Hoyt, which rejected an Equal Protection Clause challenge to a statute that excused all women from jury service.  Hoyt’s reversal involved two steps. The first nail in Hoyt’s coffin was Taylor v. Louisiana, 419 U.S. 522 (1975), which held that a similar law violated the Sixth Amendment right to trial by a fair cross-section of the community; this defendant-centered case effectively overruled the result in Hoyt without addressing its equal protection reasoning. The right of women to serve as jurors as a matter of equal protection was finally announced in J.E.B. v. Alabama, 511 U.S. 127 (1994), which held that an attorney’s use of peremptory strikes to eliminate women violated Batson.