Cornell Law Review

Article Title

Jury Service as Political Participation Akin to Voting


Introduction The Supreme Court has grappled with the constitutional limits on discrimination in the jury selection process for over one hundred years, beginning with decisions in 1879 1 involving state laws and practices that excluded blacks from sitting on juries altogether. In the last nine years alone, the Court has decided six significant cases concerning alleged racial discrimination in jury composition. 2 Nor is race the only kind of jury selection discrimination that has been challenged. For example, in cases involving the Sixth Amendment rights of criminal defendants, the Court has held that women cannot be excluded from the jury process, at least at the venire constitution stage. 3 And just last term, in J.E.B. v. Alabama ex rel. T.B., 4 the Court held unconstitutional a State's use of peremptory challenges to exclude men from a civil jury. These cases, and the line-drawing problems they obviously present, indicate a rather desperate need for a constitutional theory to identify the groups whose exclusion from or underrepresentation on juries ought to be troubling. The Sixth Amendment, which was invoked by the Court in the 1970s, 5 is not by itself very useful in this regard because the amendment tells us only about the circumstances under which juries must be provided, not about how juries must be constituted. One option, which the Court has begun to embrace 6 and which some commentators have supported, 7 is an approach based on the Equal Protection Clause. 8 Under this approach, exclusion of jurors is ...