Jury Discrimination (Update)

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The problem of improper discrimination in the jury selection process was considered repeatedly by the Supreme Court throughout the 1990s. Since its decision in batson v. kentucky (1986) involving race-based jury selection in criminal cases, the Court has decided a dozen or so cases involving claims that impermissible selection criteria have been used to constitute grand juries and, more commonly, petit juries. Most of the cases have focused on the peremptory challenge device, and the way in which it may be used by lawyers to remove members of disfavored groups from serving on petit juries. Certainly, most observers would agree that trail courts often find it difficult, if not impossible, to police lawyers' use of peremptories to ensure that an impermissible criterion such as race is not motivating challenges. For this reason, many have argued that the peremptory challenge device itself—which has historical but not constitutional foundation—should be abandoned as a prophylactic matter, to make good Batson 's promise of racial equality in criminal jury decision-making. This prophylactic argument seems even more forceful now that the Court, in J. E. B. v. Alabama (1994), has extended the reasoning of Batson to invalidate gender-based peremptories as well. As the Court is faced with challenges to more and more arguably impermissible criteria in the selection and constitution of juries, such as age, class, and sexual orientation, the Court may have an increasingly harder time reconciling the peremptory challenge device with the inclusionary impulse that has characterized most of the Court's jurisprudence in the last half-century concerning access to political participation. The more the Court thinks and writes about jury service as a political right, the more the Court will be constrained to hold various selection criteria to be impermissible, and the more vulnerable the practice of peremptories will become.

Two underdiscussed aspects of the modern jury exclusion cases are their state action and standing analyses. As to state action, in Batson the race-based peremptories were exercised by a state prosecutor, so that government action was apparent. But what about peremptories exercised by private criminal defense counsel, or by plaintiffs' counsel and defense counsel in civil cases? The Court has found state action in all these circumstances, emphasizing that the trial judge—undoubtedly a state actor—is the person who formally implements the peremptory challenge, regardless of the private character of the lawyer who may initiate it. Perhaps more crucial is a recognition that picking jurors, like picking voters, is quintessentially a public function, so that the state cannot avoid constitutional constraints by delegating the selection process to private lawyers.

As to standing, the Court has held that litigants, regardless of their race, have third-party standing to assert the rights of excluded black would-be jurors. Behind these standing holdings is the idea that courts cannot presume that black jurors would be sympathetic to the interests of black litigants alone. On the one hand, this notion is in perfect keeping with the Court's emerging colorblind constitutional vision most forcefully articulated in the racial restricting cases such as shaw v. reno (1993) and its progeny. In these cases, the Court has explicitly stated that government may not constitutionally presume that persons of one race will, because of their race, have any distinct viewpoint and exercise voting and other political power to support particular persons or political causes. On the other hand, a number of earlier lines of Court authority had suggested that racial minorities could be assumed to hold distinct political points of view, at least in the main. These earlier cases involved topics such as minority vote dilution, restructuring of political decision-making processes, and exclusion of women and blacks from juries. The modern Court's insistence that government not think nor act based on assumptions about racial minority group political attitudes is also in tension with the history of the fifteenth amendment itself. The drafters and ratifiers of the Fifteenth Amendment assumed, expected, and indeed counted on the idea that, when it comes to political activity, voters, because of their race, would—to use the Court's words in Shaw—"think alike, share the same political interests, and prefer the same candidates at the polls." Whether the insistence of the rehnquist court on colorblindness is justifiable or not, the Court certainly has not adequately explained how its modern reasoning fits in with this constitutional tradition and history. When this tradition is taken into account, arguments could be made that not each and every instance of governmental race-consciousness in the political-rights realm is equally constitutionally problematic.

Vikram D. Amar

(see also: Hunter v. Erickson; Voting Rights.)


Abramson, Jeffrey 1994 We the Jury: The Jury System and the Ideal of Democracy. New York: Basic Books.

Amar, Vikram David 1995 Jury Service as Political Participation Akin to Voting. Cornell Law Review 80:203–259.