Since Taylor v. Louisiana in 1975, the U.S. Supreme Court has said that the Sixth Amendment requires that juries be drawn from a cross-section of the community. Given that the Equal Protection Clause prohibits discrimination in jury selection on the basis of race, ethnicity, or sex, does this separate Sixth Amendment requirement serve any real function today?
Posing the question in more concrete terms, does any process for selecting jury panels violate the Taylor rule that does not also violate the Equal Protection Clause or its congressional implementation for jury selection, 18 U.S.C. ยง243? These provisions prohibit intentional discrimination in jury selection, so if the cross-section requirement has any marginal effect, it must be in areas other than intentional discrimination.
Today in Berghuis v. Smith, the Supreme Court declined to reexamine the Taylor rule but simultaneously strengthened the argument that it serves no significant function.
Posing the question in more concrete terms, does any process for selecting jury panels violate the Taylor rule that does not also violate the Equal Protection Clause or its congressional implementation for jury selection, 18 U.S.C. ยง243? These provisions prohibit intentional discrimination in jury selection, so if the cross-section requirement has any marginal effect, it must be in areas other than intentional discrimination.
Today in Berghuis v. Smith, the Supreme Court declined to reexamine the Taylor rule but simultaneously strengthened the argument that it serves no significant function.
Intent to discriminate is not an element of the Taylor rule.
The Court further explained the required showing in Duren v. Missouri (in which defendant was
represented by Ruth Bader Ginsburg), and that test was quoted in today's decision by Ruth
Bader Ginsburg. The defendant's prima facie case must show,
In the Smith case, a key question concerned the adoption of policies that are race-neutral on their face but have a correlation with race. Is showing that sufficient to meet the "systematic" prong of this test? In employment discrimination litigation terminology, this is a "disparate impact" case. The defendant's expert apparently thought that was enough. He testified that the difference between the racial composition of the venire and the composition of the population was great enough to rule out random chance as the reason. In social science research, that is a critical question -- whether you can rule out the "null hypothesis" of random variation as the cause of an observed correlation. But is it enough for "systematic exclusion" for the Duren test?
The Michigan Supreme Court thought not. Excusing jurors for hardship means more excusals for lower-income jurors and for single parents. If there are more low-income or single-parent households in one ethnic group than another, such a policy will have a disparate impact on the racial makeup of the venire. The Michigan Supreme Court held "that the influence of social and economic factors on juror participation does not demonstrate a systematic exclusion of African-Americans. The Sixth Amendment does not require Kent County to counteract these factors."
The Sixth Circuit disagreed. It repeatedly emphasized that the factors were not random. "Here, the particular jury selection process employed by Kent County made social or economic factors relevant to whether an otherwise qualified prospective juror would be excused from service; and because such social or economic factors disproportionately impact African Americans in Kent County, such factors produced systematic exclusion within the meaning of Duren inasmuch as they are 'inherent in the particular jury selection process utilized.' "
Today's decision holds that the Michigan Supreme Court's conclusion is not unreasonable and not contrary to Duren, but it also strongly implies that the state court was correct. At the end of the opinion, the Supreme Court quotes both Taylor and Duren on the presumptive validity of state selection processes that prescribe qualifications for jurors and grant excuses for hardship.
So if the Taylor rule does not invalidate a selection criterion for mere disparate impact, what use is it? Originally, it was useful to get around problems with standing that blocked some equal protection claims, but those obstacles are long gone.
As I wrote in the brief, I think it is time to give Taylor a respectful burial and be done with it. It is a vestige of a rule that was once useful but now does nothing but complicated the law, with two different bodies of jurisprudence governing the same aspect of the jury selection process.
I doubt the Supreme Court will return to the question in the foreseeable future, though. It has said relatively little about the cross-section requirement in the three decades since Duren, and today's decision will probably dampen cross-section litigation to the point that it does not need to say anything for another three decades. So Taylor will remain in force, doing no good but probably not much harm.
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.
In the Smith case, a key question concerned the adoption of policies that are race-neutral on their face but have a correlation with race. Is showing that sufficient to meet the "systematic" prong of this test? In employment discrimination litigation terminology, this is a "disparate impact" case. The defendant's expert apparently thought that was enough. He testified that the difference between the racial composition of the venire and the composition of the population was great enough to rule out random chance as the reason. In social science research, that is a critical question -- whether you can rule out the "null hypothesis" of random variation as the cause of an observed correlation. But is it enough for "systematic exclusion" for the Duren test?
The Michigan Supreme Court thought not. Excusing jurors for hardship means more excusals for lower-income jurors and for single parents. If there are more low-income or single-parent households in one ethnic group than another, such a policy will have a disparate impact on the racial makeup of the venire. The Michigan Supreme Court held "that the influence of social and economic factors on juror participation does not demonstrate a systematic exclusion of African-Americans. The Sixth Amendment does not require Kent County to counteract these factors."
The Sixth Circuit disagreed. It repeatedly emphasized that the factors were not random. "Here, the particular jury selection process employed by Kent County made social or economic factors relevant to whether an otherwise qualified prospective juror would be excused from service; and because such social or economic factors disproportionately impact African Americans in Kent County, such factors produced systematic exclusion within the meaning of Duren inasmuch as they are 'inherent in the particular jury selection process utilized.' "
Today's decision holds that the Michigan Supreme Court's conclusion is not unreasonable and not contrary to Duren, but it also strongly implies that the state court was correct. At the end of the opinion, the Supreme Court quotes both Taylor and Duren on the presumptive validity of state selection processes that prescribe qualifications for jurors and grant excuses for hardship.
So if the Taylor rule does not invalidate a selection criterion for mere disparate impact, what use is it? Originally, it was useful to get around problems with standing that blocked some equal protection claims, but those obstacles are long gone.
As I wrote in the brief, I think it is time to give Taylor a respectful burial and be done with it. It is a vestige of a rule that was once useful but now does nothing but complicated the law, with two different bodies of jurisprudence governing the same aspect of the jury selection process.
I doubt the Supreme Court will return to the question in the foreseeable future, though. It has said relatively little about the cross-section requirement in the three decades since Duren, and today's decision will probably dampen cross-section litigation to the point that it does not need to say anything for another three decades. So Taylor will remain in force, doing no good but probably not much harm.
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