Last week's j.e.b. decision should have been the dramatic highlight of an otherwise dull Supreme Court term, especially for those who have been waiting for Ruth Bader Ginsburg to find her voice. The outcome of the case, which forbids prosecutors from peremptorily excluding jurors on the basis of sex, was never really in doubt. But this was a rare opportunity for Ginsburg to clarify the uncertain constitutional status of sex discrimination, and to explore the connection between jury service and the struggle for women's suffrage, which she had hinted at in her confirmation hearings.
Instead, the decision is disappointing on several levels. The wooden majority opinion by Harry Blackmun insists implausibly that there are no relevant differences in the perspectives of male and female jurors. A tortured concurrence by Sandra Day O'Connor subverts Blackmun's argument by insisting that "gender matters" in certain trials. As for Ginsburg, she felt that it would be unseemly to speak for the Court on a subject she had championed as an advocate, and chose, therefore, to say nothing at all.
Blackmun's opinion contains sweeping generalizations but little empirical support. "The majority of studies suggest that gender plays no identifiable role in jurors' attitudes," he declares, citing only one study. In fact, the relationship between gender and jury deliberations is considerably more complicated than he claims. A 1987 survey of the empirical literature by Nancy Marder in the Yale Law Journal, for example, points to persistent gender differences: women talk less than men during jury deliberations; female jurors are more likely than male jurors to convict rape defendants and to vote for longer sentences. (A generation ago, conventional wisdom held the opposite.) Several studies have concluded that women are more likely than men to oppose the death penalty. And both women and men tend to be more sympathetic to defendants and lawyers of their own sex. This means that in a paternity suit, like the one in the j.e.b. case, it was hardly irrational for the state of Alabama, representing an unmarried mother, to try to strike all the men in the jury pool.
Jury consultants, who have made a cottage industry of analyzing the relevance of sex and race, confirm that gender does make a difference in certain cases, although it is less decisive than occupation and class. Marjorie Fargo of Jury Services, for example, says that gender has the most dramatic effect in cases involving domestic violence, sexual assault, child abuse and obscenity, where seven out of ten women are likely to be unfavorable to the defense. She also points anecdotally to the trial of Erik Menendez, in which the six women and six men divided angrily along sex lines, and the women accused the men of shouting "sexist comments." Jury selection manuals, for their part, are full of confident generalizations about gender. " Stereotypically, it has been thought that women jurors are more receptive to emotional arguments regarding pain and suffering," confesses the latest edition of Jury Selection: Strategy and Science. "In the same vein, it is stereotypically thought that men are more tolerant of violence and are more receptive to self-defense theories in criminal cases. Homosexual males are thought to be an exception to this general stereotype."
After insisting that gender has no influence on verdicts, Blackmun nervously hedges his bets. Even if gender does make a difference, he writes, sex-based peremptory strikes would still be unconstitutional because they promote the same "archaic stereotypes" that were used to keep women off the jury lists. But this claim, too, is a little hasty. Women were excluded from jury pools until the 1960s because of paternalistic notions about protecting " the weaker sex." Today, by contrast, women--and men--are peremptorily challenged because of strategic generalizations about their biases.
Blackmun's final equivocation is his facile equation of race discrimination and sex discrimination. "With respect to jury service, African Americans and women share a history of total exclusion," he declares. He then endorses Ginsburg's recent suggestion that the constitutional status of sex discrimination "remains an open question." But Blackmun fails to explain why distinctions between men and women should be scrutinized as carefully as distinctions between blacks and whites. Ginsburg, for her part, has never spelled out her own argument for treating sex discrimination like race discrimination. At her confirmation hearings, she suggested that the framers of the Fourteenth Amendment, which guarantees "all persons" the equal protection of the laws, were not concerned about discrimination against women. But she added promisingly that the Nineteenth Amendment, which said in 1920 that the right to vote can't be abridged "on account of sex," might be interpreted to contain a broader principle that women and men deserve equal status as citizens.
A convincing j.e.b. opinion might have resolved the constitutional status of sex discrimination by developing the Nineteenth Amendment argument along the following lines. Sex, like race, does sometimes matter in jury deliberations, which is precisely why sexual and racial jurymandering should be prohibited. As scholars Akhil Amar, Barbara Babcock and Jennifer Brown have each written, early feminists recognized the connection between suffrage and jury service; many of them assumed that ratification of the Nineteenth Amendment would extend to women all the rights, privileges and immunities of citizenship, including grand jury service. Gender-based peremptory challenges, the argument goes, violate the Nineteenth Amendment by depriving the excluded jurors of a privilege of political citizenship (the right to vote on juries) simply because of their sex.
The best constitutional argument, however, is also the simplest. As Thurgood Marshall recognized in the 1986 Batson case, there is an incurable tension between the principle of equal protection, which says you have to give reasons for treating people differently, and the peremptory challenge, which says you don't. Marshall, therefore, called on the Court to strike down all peremptory challenges. The only argument for preserving peremptories is their pedigree. "The Court imperils a practice that has been considered an essential part of fair jury trials since the dawn of the common law," glowers Antonin Scalia in his j.e.b. dissent. But as Albert Alschuler of the University of Chicago points out, Scalia basically made up his history: although on the books from the thirteenth through the nineteenth centuries, peremptory challenges were almost never used. They were originally designed to save time, not to encourage racial and sexual stereotypes, because, until very recently, jury pools were entirely homogeneous. Instead of eliminating peremptory challenges, Blackmun loudly protests that he means to preserve them. But there is not much left in the wake of his opinion. All strikes based on constitutionally protected categories--race, sex, ethnicity, religion, national origin and illegitimacy--are now off-limits. That leaves categories such as occupation, body language, posture and hairstyle. For example, Blackmun said that excluding people who have had military experience would be fine even though men would suffer disproportionately. But, according to Blackmun's logic, it's not clear why the excluded soldiers couldn't object on the grounds that stereotypes about the military lack a "rational basis."
Peremptory challenges are especially ill-suited for a political culture that demands multicultural jury pools but has a horror of stereotyping of any kind. Instead of Blackmun's timid compromise, it would have been better to follow Marshall's lead, eliminating peremptory challenges with a clean stroke. The use of pretrial jury questionnaires could then be expanded, so that both sides could challenge prospective jurors on the basis of informed judgments rather than lazy hunches. With the abandonment of the ideal of the anonymous jury, and increased pressure on jurors to talk to the press, the biases and demons of individual jurors are likely to be ventilated at some point. Wouldn't it be better to have full disclosure before the trial, rather than after?
Jeffrey Rosen is the legal affairs editor at The New Republic.