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Tuesday, June 09, 2015

Strange Bedfellows #4: Jury Selection All Over The Place

This post is part of the Strange Bedfellows series.

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.

Posted by Aaron Caplan on June 9, 2015 at 12:02 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink


Great point that we often allocate binding decision power to one of the disputing parties. But to my mind a principle like "A gets to decide" is a rule of substance, not a procedural mechanism for resolving disputes. Much of the time, this substantive rule prevents disputes from arising in the first place, because it convinces other parties to yield to A, which usually involves accepting the status quo.

But if there's a real dispute--maybe B doesn't agree that "A gets to decide" is really the rule, or maybe B thinks she is A for purposes of the rule--then we need a procedure to resolve it. Maybe a third party applies the "A wins" substantive rule, and B goes along (either through the persuasive force of the third party's decision, or by the threat that the decision will be executed with force). Or maybe they reach agreement when A convinces B that resistance is futile.

Posted by: Aaron Caplan | Jun 9, 2015 10:00:14 PM

"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."

One way to resolve disputes that is actually quite common is "(e) binding decision by a predetermined one of the parties to the dispute."

In the case of private disputes, this encompasses, for example, the employment at will doctrine, the way disputes between parents and children are resolved, the way disputes between guardians and wards are resolved, the way that disputes between ship captains and anyone else on the ship are resolved, the way that disputes between educational institutions and students (e.g. over admissions and grades) are resolved, the de facto way that most disputes between merchants and consumers over the return of goods are handled, and the way we set prices in a free market. In Islamic law, sentencing (e.g. death penalty v.blood money) is often placed in the sole discretion of the victim, and many Western legal systems used to have a death or marriage at the election of the victim system for rape sentencing.

In the public law area, this is inherent in the 11th Amendment right of governments to adjudicate disputes of third parties with states in the courts of that state, and the exclusive jurisdiction of the federal courts over disputes with the federal government fit this model. More extremely, in federal law - disputes over payment of secret agents is in the exclusive jurisdiction of the executive branch and not justiciable. Similarly, this is the way that disputes between soldiers and their superior officers are resolved.

Posted by: ohwilleke | Jun 9, 2015 7:25:06 PM

Thanks for the reminder that Batson was not a panacea. As for the choice of frame...

When rights overlap, a court isn’t obligated to pin its result to a single theory. In older cases, it was much more common for a set of rights to be considered together. It’s a fairly modern lawyerly approach to pin things down with such specificity. For example, Barnette (1942) did not consider it necessary to specify whether the right of the Jehovah’s Witness students not to recite the Pledge of Allegiance was a result of the Speech Clause or the Free Exercise Clause. Either or both was fine, and the opinion was no more specific than to say “the principles of the First Amendment.” Yick Wo v. Hopkins (1886) is remembered today as an equal protection case, but the opinion actually speaks at equal or greater length about due process concepts of regularity, and the overall goal of eliminating “the play and action of purely personal and arbitrary power.”

I haven’t tracked down exactly when SCOTUS began to give separate consideration to the right of the juror to serve and the right of the accused to be tried by a representative jury. For its part, Strauder saw both problems: it was problematic for the juror to be denied “the privilege of participating equally … in the administration of justice” and for the defendant to be denied a jury “composed of the peers or equals” of the accused. Conceivably, it could have premised its decision on the meaning of the 6th Amendment jury trial right, but at that early stage the notion of incorporation hadn’t developed to the point where it was clear that West Virginia needed to obey that amendment. Hence, it relied on equal protection: “If the defendant has a right” to a jury panel where members of his race are not excluded, “the right, if not created, is protected by” the Reconstruction amendments, specifically the 14th.

Batson also included both threads. “Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection, because it denies him the protection that a trial by jury is intended to secure.” And also: “by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror.”

The decision in some other cases to emphasize the juror prong may flow from individual facts. In Taylor v. Louisiana (1975), a male defendant objected to an all-male jury. It would be tricky to theorize a way for this particular defendant to assert the rights of excused female jurors, so the Court explicitly based its ruling on the defendant’s incorporated 6th Amendment rights to a jury drawn from a “fair cross-section” of the community, avoiding equal protection. As later stated in J.E.B., “Taylor relied on Sixth Amendment principles, but the opinion's approach is consistent with the heightened equal protection scrutiny afforded gender-based classifications.”

Edmonson, J.E.B. and other civil Batson cases do not argue that there is a 7th Amendment right to have one’s civil jury be drawn from a fair cross-section of the community. (The 7th Amendment is not incorporated against the states anyway.) These cases therefore rely on equal protection rights, and this almost always focuses on the rights of the excluded juror. This may often be necessary in cases involving corporate litigants. SmithKline Beecham and Abbott Labs were both corporations, and hence could not have complained that they were the victims of discrimination on the basis of sexual orientation. But they could complain that they were not getting a fair trial, and that their opponents were engaged in wrongful discrimination against jurors.

Posted by: Aaron Caplan | Jun 9, 2015 4:09:39 PM

Do we find in the Batson line of cases a right to trial by a representative jury? Or a right to serve? (As opposed to a right, as a litigant, not to have one's jurors stricken discriminatorily, and a right, as a potential juror, not to be stricken discriminatorily.)
Also, the recent EJI report suggests the all-white jury is something more than 'occasional': http://www.eji.org/files/EJI%20Race%20and%20Jury%20Report.pdf

Posted by: Anna | Jun 9, 2015 1:58:25 PM

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