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Smith Argument

The transcript of oral argument in Michigan v. Smith is now available. Most interesting to me are the questions of Justice Ginsburg, who repeatedly contrasts the practices being challenged in this case with those in the original jury cross-section cases of Taylor v. Louisiana and Duren v. Missouri. In those cases, the law expressly treated women differently from men. In the present case, benign practices such as generous excuses for child care hardship are said to have a disparate impact producing a shift in the numbers, quite a different thing. She seems to be concerned that placing a greater burden on the affected jurors just to get the numbers proportionate amounts to misplaced priorities. I think so, too.

Trivia question for the day: When Duren was argued in the Supreme Court back in '78, who argued the case for petitioner?

BTW, no one today expressed interest in my longshot argument that the Sixth Amendment actually has no cross-section requirement. It's true, though, if the Court is faithful to the original understanding that it deems controlling in the Apprendi and Crawford lines. We will wait and see what the opinion says.


I'd say that there will be a pretty minimalist and unanimous or almost unanimous opinion. AEDPA's standards aren't even close to being met here.

Sez FindLaw: Lee M. Nation and Ruth Bader Ginsburg argued the cause for petitioner.

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