The numbers don't add up: challenging the premise of J.E.B. v. Alabama ex rel. T.B.

AuthorCipriani, Karen L.
  1. INTRODUCTION 1253 II. THE WOMAN JUROR 1255 A. The Historical Exclusion of Women from Juries 1255 B. The Rise of Equal Protection Analysis: The Batson Doctrine and its Implications in J.E.B. v. Alabama ex rel. T.B. 1258 III. THE HYPOTHESIS AND THE EVIDENCE: THE DISTRICT OF COLUMBIA FEDERIAL JURY POOL AS CASE STUDY 1261 A. The Hypothesis 1261 B. The Empirical Evidence 1264 IV. THE FEMINIST CRITIQUE 1268 A. Liberal Feminism 1268 B. Cultural Feminism 1270 C. Radical Feminism 1273 V. CONCLUSION 1275 I. INTRODUCTION

    On its face, the Supreme Court's recent ruling in J.E.B. v. Alabama ex rel. T.B.(1) seems to be the final step in the woman juror's lengthy struggle to serve on American juries. Although some states permitted women to serve on juries in the late nineteenth century, it was not until 1966 that all states allowed women to serve on juries,(2) and not until 1975 that statutes which granted women automatic exemptions from jury service became constitutionally prohibited.(3) Decisions prior to J.E.B. validated jury service for women not on the premise that women would otherwise be excluded, but on the premise that every litigant is entitled to a jury venire that represents a fair cross-section of society. J.E.B. moved that fair cross-section debate from the jury venire to the jury box, and addressed the final hurdle for women jurors: the possibility that they could be struck from the jury by a gender-based peremptory challenge. In a 6-3 decision, the J.E.B. court held that "the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender,"(4) and outlawed the use of gender-based peremptory strikes.

    J.E.B. continues a line of cases subjecting the peremptory challenge to increased judicial scrutiny. Once considered the best way for an attorney to achieve an impartial and unbiased jury,(5) peremptory challenges are now criticized for producing the opposite result. These criticisms prompted the Supreme Court to prohibit the exercise of peremptory challenges based solely on race in its 1986 decision Batson v. Kentucky.(6) In J.E.B. the Court held that the Equal Protection Clause likewise bars peremptory strikes exercised on the basis of gender,(7) on the theory that doing otherwise would perpetuate the discrimination that excluded women from the jury pool for so long.

    The Court's Equal Protection analysis in J.E.B. may well be correct, and this Note does not address the wisdom of that decision. Rather, it questions whether the assumptions underlying the Court's conclusion are suspect. The Court was influenced by the suggestion that gender-based peremptory strikes are impermissible because they perpetuate women's historical exclusion from the political process. The Court seemed to accept the notion that women would be disproportionately excluded if attorneys were allowed to strike a juror on the basis of gender. That women have been excluded in the past is uncontroverted; that such exclusion continues today is less clear.

    In contemplating the policy reasons underlying J.E.B., this Note first documents the exclusion of women from juries in this country. It then presents data collected from the District of Columbia District Court and attempts to determine the extent to which peremptory challenges are used to eliminate women and men from these juries. The evidence suggests that men, and not women, are more vulnerable to exclusion from modern juries. Finally, consulting various feminist legal theories, this Note uses the empirical data to reassess J.E.B.'s proposition that women, like racial minorities, require protection from unchecked peremptory strikes in order to ensure their place on the jury.

  2. THE WOMAN JUROR

    Debate over the woman juror's right to serve dates back to the late nineteenth century, when women first participated in deliberations at trial. A century later the debate continues. This Section notes the increasing acceptance of women on juries, charts the Supreme Court's treatment of the rights of women jurors, and explores the Batson doctrine and its impact on the J.E.B. decision.

    1. The Historical Exclusion of Women from Juries

      In 1898, Utah became the first state to qualify women for jury service.(8) Since then, the struggle to firmly install women on juries has been hard fought.(9) Despite the ratification of the Nineteenth Amendment in 1920 with its mandate that women have the right to vote, a majority of states did not find a corresponding right for women to sit on juries.(10) By World War II, "twenty-one states [still] prohibited women jurors."(11) By 1962, women were not yet eligible for jury service in Alabama, Mississippi, and South Carolina.(12) It was not until 1966 that Alabama, the last state, finally opened its juries to women.

      The Supreme Court confronted the issue of a woman's right to serve as a juror in a series of cases, but even its most enlightened opinions have been arguably less responsive than many women hoped. The Supreme Court first considered the rights of women jurors in its 1941 decision Ballard v. United States,(13) when it supported women's right to be free from systematic exclusion on grand and petit juries.(14) However, the Court failed to base its conclusion on constitutional principles;(15) instead, it based its holding on the Court's supervisory power over the lower federal courts. The decision supported the eligibility of women to serve on juries, but not their constitutional right to do so.(16)

      In addressing the rights of the litigant to a fair trial, the Ballard Court focused on Congress's intent to provide a representative jury to each defendant--one that reflected a fair cross-section of the community.(17) The woman juror's right to serve was not at issue, but rather the litigant's right to have a representative jury. The Court invoked the image of women as mothers, teachers, nurturers, and church-goers(18) and used it to "illustrate[] that the exclusion of women from jury panels may at times be highly prejudicial to defendants."(19) However, the Court never mentioned that such attitudes might be highly prejudicial to the juror herself.

      The Court acknowledged that men and women bring different qualities to a jury: "[T]he truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables.... [A] flavor, a distinct quality is lost if either sex is excluded."(20) However, the Court failed to explain why those differences were relevant, or what unique contributions a woman could make to jury service. Even though the Court noted that the "two sexes are not fungible,"(21) the opinion nonetheless bound the sexes together in its analysis. By arguing that women are as necessary as men to achieving a representative jury, women become simply the other half.(22)

      Fifteen years later, in Hoyt v. Florida,(23) the Supreme Court again declined to establish constitutional safeguards for women jurors. In a unanimous opinion, the Court upheld a Florida statute(24) providing that no female names would be placed on jury lists if those women did not voluntarily register for jury service.(25) Focusing again on the perspective of the defendant and his right to a representative jury, the Court found no Fourteenth Amendment Due Process violation in the automatic exemption accorded to women. Echoing the dissent in Ballard, the Court in Hoyt construed the exemption as a privilege. The Court also returned to the image of woman as mother and as essential to the domestic sphere; Hoyt, however, used that image to distinguish women and their roles at home from men and their roles in the political process. Ultimately, the Hoyt Court concluded that both the State's interests and public policy justified a distinction between men and women in jury service.(26)

      Revisiting the same question in 1975 in Taylor v. Louisiana, the Court recognized the discriminatory impact of exemption statutes and declared them unconstitutional.(27) As in the preceding cases, the Court focused firmly on the rights of the defendant. But while Hoyt refused to find a Fourteenth Amendment Due Process right to jury service, Taylor looked to the Sixth Amendment and concluded that the "unmistakable import [of decisions since 1940 is! that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial."(28) Noting that women are "sufficiently numerous and distinct from men,"(29) the Court determined that their absence precluded the possibility of a representative jury and was thus a violation of the defendant's Sixth Amendment rights.

      While the Taylor holding validated women jurors, the opinion reflects some discomfort with female service. Despite the concession by both the majority and dissent that Louisiana's statute was based on "an anachronism,"(30) discrimination was visible enough in 1975 to compel the Court to expressly denounce juror exemption statutes that excluded women.(31) Likewise, the Court dedicated an entire section of its opinion to the role of women. Even though the Court rejected the assumption that women's roles in the home precluded jury duty, simply including such a discussion acknowledged the tenacity of the stereotypes that kept women from serving on juries for decades.

      Ultimately, the Court qualified its holding by emphasizing that the actual jury seated need not be representative, so long as the jury pool is representative and the selection processes impartial.(32) Taylor marked the end of a history of discrimination in the jury pool and offered constitutional protection to a woman's right to be called for jury service. The Court's concluding qualification, however, left open the possibility of continued discrimination against women on the jury panel itself.(33)

    2. The Rise of Equal Protection Analysis: The Batson Doctrine and its

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