Jury Service as a Political Right

views updated

JURY SERVICE AS A POLITICAL RIGHT

In his article in this encyclopedia on jury discrimination, James Boyd White identified a, if not the, central question as being "[w]hat exclusions, beyond racial ones, are improper?" The dozen or so cases the Supreme Court decided during the 1990s have served to heighten the need for a constitutional theory to identify the groups whose exclusion from or underrepresentation on juries ought to be troubling. In the 1970s the Court invoked the Sixth Amendment, which guarantees to criminal defendants the right to a trial by jury. This amendment, however, offers an explanation that is incomplete in at least two respects. First, few would doubt that jury discrimination raises constitutional problems outside the criminal setting. Second, and more basic, the Sixth Amendment tells us only about some circumstances in which a jury must be provided, not about how juries must be constituted. That is, there is nothing in the text or history of the Sixth Amendment that tells when exclusion of certain groups or individuals renders a body less than a "jury."

An approach that would focus on the due process of law rights of litigants to a fairly selected jury would also be plagued with problems. If a jury that, because of intentional official action is all white, was held to deprive a black litigant of her due process rights, then why shouldn't the same be said for a jury that turns out to be all white not because of official design but rather because of random chance? Moreover, a due process approach that stressed the possibility that jurors of different races will treat litigants differently would not provide a basis for attacking exclusion of black jurors when the litigants are white. This due process approach can create unfortunate dilemmas when black jurors are excluded in a case where the defendant is white but the victim is black.

For these reasons, the Court in recent jury exclusion cases beginning with batson v. kentucky (1986) and continuing with cases such as Powers v. Ohio (1991), Edmonson v. Leesville Concrete Co. (1991), and J. E. B. v. Alabama (1994) has focused less on the rights of the litigants, and more on the rights of excluded jurors—in particular, their rights to equal protection of the laws under the fourteenth amendment. The newfound focus on the rights of the would-be jurors is welcome, but the equal protection analysis employed by the Court thus far is at best incomplete and at worst incorrect. Traditional equal protection analysis may be too narrow; the use of wealth and age criteria ordinarily does not trigger any heightened scrutiny under equal protection, and yet the use of these criteria to exclude jurors ought to be troubling. Indeed, the Court has already (and quite properly) suggested that wealth ought play no part in jury selection, Thiel v. Southern Pacific Co. (1946).

More generally, a problem with the traditional equal protection approach is that the equal protection clause—like everything else in the Fourteenth Amendment—was originally intended to be limited to what nineteenth-century lawyers called " civil rights " such as property rights, freedom of contract, and inheritance rights. Political rights, which included voting and jury service, were excluded from the coverage of the Fourteenth Amendment and were addressed more specifically in the voting rights amendments, beginning with the fifteenth amendment and running through the twenty-sixth amendment. And the groups protected by these voting amendments are not necessarily the same as those protected under a traditional equal protection approach.

The modern Court is beginning to understand the close linkage between jury service and other political rights, such as office holding and especially voting. In both Powers and Edmonson, Justice anthony m. kennedy writing for the Court likened jury service to voting, both to support its finding of state action, and to draw strength from precedent removing race from voter selection. This "juror as voter" theme in Kennedy's writings has surface plausibility. After all, jurors vote to decide winners and losers in cases. Thus, the plain meaning of various constitutional provisions concerning the "right to vote" might be interpreted literally to apply to jurors. Beyond this plain meaning, jury service eligibility historically has been limited as a general matter to those who are registered voters.

The connection, however, runs deeper still. The link between jury service and other rights of political participation such as voting is an important part of our overall constitutional structure, spanning three centuries and eight amendments: the Fifth Amendment, Sixth Amendment, seventh amendment, Fourteenth, Fifteenth, nineteenth amendment, twenty-fourth amendment, and the Twenty-Sixth. The voting–jury service linkage was recognized by the Framers, who saw juries as a lower branch of the judicial department, just as the House was the lower branch of the legislature. Indeed, thomas jefferson thought that as between electing legislators and doing direct law administration through juries, the people's voice in the latter was more important than in the former in order to preserve liberty and democracy. This connection noted at the founding between voting and jury service was recognized by the Framers and ratifiers of the reconstruction amendments—who used the phrase "right to vote" in the Fifteenth Amendment as a shorthand for political participation more generally, including serving on juries—and by the authors of twentieth-century amendments patterned after the Fifteenth.

Thus, when deciding which criteria cannot be used to select jurors, we should self-consciously ask ourselves whether the criteria under consideration would be permissible as a basis for excluding voters. Given the modern Court's characterization of voting as a fundamental right whose burdening usually triggers strict scrutiny, many grounds for excluding jurors are constitutionally dubious. Indeed, the fact that we would never think of permitting peremptory challenges to voters should cause us to consider whether peremptories in juries are consistent with our modern commitment to inclusion and representation in political participation. Some believe that the Court's characterization of voting as a fundamental right under the Fourteenth Amendment itself raises problems. This position has some support in original intent; as suggested above, political rights were excluded from the scope of the Fourteenth Amendment. At the very least, however, the criteria the Constitution prohibits as bases for selecting votes are impermissible bases for selecting jurors as well. These include race (Fifteenth Amendment); sex (Nineteenth Amendment); class, at least in federal forums (Twenty-Fourth Amendment); and age (Twenty-Sixth Amendment).

Vikram D. Amar
(2000)

(see also: Procedural Due Process of Law, Criminal.)