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 6th and 7th 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.
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