Clearing the smoke-filled room: women jurors and the disruption of an old-boys' network in Nineteenth-century America.

• Author: Rodriguez, Cristina M.

In May of 1884, Massachusetts lawyer Lelia Robinson arrived in Seattle, Washington Territory, at the end of a transcontinental journey with the "woman question" foremost in her mind.(1) The territorial legislature had just passed a women's suffrage act, and Robinson had been drawn westward by the possibility of witnessing women serve on grand and petit juries. She arrived skeptical, believing that the scope of women's political fights had been extended too far. "[W]hatever might be the policy and the desirability of women's voting," she wrote, "it was carrying the matter a little too far to force them to do jury service."(2) Gradually, she became convinced that the women of Washington represented paradigmatic jurors. She described them as "ladies to whom any one might gladly entrust the settlement of any question, civil or criminal, that must be carried into a court of justice...."(3)

Robinson's sentiment evolved in response to the changed behavior she witnessed inside the courtroom--a development she attributed to the presence of women. Remarkably, after vigorous discussion and judicious examination of evidence, the women jurors appeared to be less tired and in better health than their male counterparts. The men of the jury found themselves at the end of the trial to have been "great sufferers in being deprived of the use of their favorite weed.... [W]hen women jurors came in, smoking jurors went out--or rather the cigars and pipes went out. Men found that they must be gentlemen in the jury-room as in the drawingroom."(4) By Robinson's estimation, women had entered the proverbial smoke-filled room of the law and quite literally cleared the air.

That a female attorney who herself had fought a recalcitrant bar to gain admission to a court of law(5) would approach the legal developments in Washington with trepidation may seem anomalous at first glance. Upon further consideration, Robinson's simultaneous enthusiasm for female suffrage and skepticism of women jurors suggests a more complicated picture of women's legal status in the decades after the Civil War. In her distrust of the mixed jury, Robinson revealed that opening the venire to women implicated a set of interests distinguishable from those interests at stake in the granting of female suffrage. Robinson's conclusions that the women jurors of Washington purified the air of the courtroom--literally and metaphorically--confirmed that the introduction of the woman juror radically transformed the very character of a previously all-male institution.

This Note will present a sustained examination of the postbellum experiments with women jurors conducted in the Wyoming and Washington Territories, with a view to understanding the transformative implications of the mixed jury. In presenting the jury experiments as radical challenges to nineteenth-century legal culture, this Note contests the prevailing scholarly vision of jury service as part of a set of political demands made by women's rights activists, muted by the overarching goal of obtaining the vote. The Wyoming and Washington stories instead assign the jury a unique role in our democratic legal system and in the struggle toward the ideal of egalitarian citizenship.(6)

The central argument of this Note proceeds as follows: First, the attempt to understand women voters and jurors as functions of each other(7) obscures the jury's precise role as a participatory institution of government and oversimplifies the narrative of the history of women's rights. The Western experience reveals that, historically, suffrage and jury service for women have not been mutually-reinforcing entrances into the public sphere. Instead, the transformation of the public sphere has demanded that women activists pay specific attention to the discrete cultures of the public institutions that they would invade. Throughout women's struggle for equality, the highly associational nature of jury service has distinguished it as an act separable from voting.

To comprehend why jury service has had a social significance distinct from suffrage, rather than consider nineteenth-century women jurors as variations on women voters, the former should be seen in the same context as the women who sought access to the bar. Both women lawyers and women jurors can be understood as outsiders who invaded the space of the courtroom and challenged the masculinist legal culture that operated according to the internal logic of an "old-boys'" or insiders' network. Opposition to women jurors did flow in part from traditional objections to changes in the legal status of women; not only would women be distracted from their domestic duties, but the status of juror did not befit feminine nature. The primary opposition, however, emanated from a desire to preserve a particular legal culture. The mixed jury experiments in the Wyoming and Washington Territories suggest that women jurors introduced into the fluid legal culture of post-Civil War America the concept of a "gendered justice," or the belief that women as women would perform their duties as jurors differently from their male counterparts. By disrupting the status quo of the male-dominated legal profession, the possibility of a gendered justice fueled opposition to female jury service, even as female suffrage remained grudgingly accepted.

The concept of gendered justice does not represent a normative claim about the distinctive way in which women think. Rather, it accounts for the effects people anticipated women jurors would have on the legal system and for the actual consequences of introducing women and their unique forms of reasoning into the courtroom. Conceptions of feminine reason and behavior proved to be dynamic throughout the experiments. The content that the historical actors of this Note gave to feminized justice varied depending on the time and vantage point of the person in question. Ultimately, the salient feature of gendered justice proved to be that introducing feminine reason into the courtroom challenged settled masculine legal consensus. This possibility threatened the conviviality of a profession thought to be sustainable only as an exclusive network of men.

The belief that a particular feminine form of reason existed stemmed from a number of factors. Supporters and detractors alike believed that women reasoned differently from men because their gender-defined life experiences had shaped their capacities for judgment in distinct ways. At the same time, the personalities of this narrative assessed these differences in terms of the well-established cultural construct of separate spheres ideology. According to the construct, the public sphere represented the male domain and the domestic sphere the female domain. To be sure, the everyday experiences of women on the frontier strained against popular conceptions of what the woman's role should be. That the separate spheres did not accurately describe the dynamic gender roles of the frontier does not diminish the fact that the ideology represented a strong cultural force in the debate over the woman juror. Whether the actors in this story believed female jury service to be a necessary part of Western development or an unnatural aberration, a common consensus emerged that women in the courtroom would transform the law's administration by introducing norms of adjudication as yet unknown to nineteenth-century legal culture.

Part I of this Note will present the details of the mixed jury experiments in Wyoming and Washington. It will consider how exactly the women jurors of the West transformed the courtroom and unsettled extant legal consensus. Part II will develop the ideological context of the mixed jury debate with a particular focus on the status of women lawyers. Finally, Part III will explore different contemporary conceptions of the jury in light of the historical narrative of Parts I and II. It will assess how nineteenth-century Americans' brief flirtation with women jurors can inform our understanding of the interplay between gender difference and the administration of justice in the context of the modern jury.

1. WOMEN JURORS IN THE WESTERN TERRITORIES

   1. A Bundling Approach to Suffrage and Jury Service

      In Strauder v. West Virginia, the Court observed that women, as nonvoters, could properly be denied jury service, but that black male voters, as voters, had the right to serve on juries.(8) This proposition stands for some as an indication of the crucial connection between suffrage and the right to act as juror.(9) Barbara Babcock, a leading scholar on women jurors and lawyers, connects jury service and suffrage as "twin indicia of full citizenship."(10) She contends that those who opposed women's suffrage understood the link between voting and jury service(11) and characterizes jury service and the act of lawyering as "attendant" features of voting.(12) Babcock analogizes the woman voter to the woman juror by declaring them both to be passing unambiguously into the public sphere.(13) Other scholars conflate the discussion of suffrage and access to the jury in their narratives of the women's rights campaigns.(14) The debates over suffrage and jury service are presented as two examples of the same phenomenon: the debate over the extent to which gender difference and family obligations affected women's entrance into the public sphere.(15) Current emphasis on common "rhetorical tropes"(16) faced by women voters and jurors obscures the fact that different interests were at stake in each case and that there historically has been opposition to women voters and jurors for different reasons.

      More general scholarship on the jury reflects these tendencies as well. For example, one scholar constructs an elaborate argument paralleling the language and structure of the Fifteenth Amendment and suffrage statutes to statutory and judicial guarantees of jury service.(17) By arguing that jury service has been closely linked to voting throughout...