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A Place in the Palladium: Women's Rights and Jury Service


Publication Date: 
January 01, 1993
Journal Article
Bibliography: Barbara Allen Babcock, A Place in the Palladium: Women's Rights and Jury Service, 61 University of Cincinnati Law Review 1139-80 (1993).


Full Text of Publication

University of Cincinnati Law Review Volume 61, No. 4, pages 1139-1180 1993 Feminist Jurisprudence and Procedure A PLACE IN THE PALLADIUM: WOMEN'S RIGHTS AND JURY SERVICE * Barbara Allen Babcock ** Copyright 1992 by Barbara Allen Babcock When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.1 My father, who liked to call himself a country lawyer, once took in lieu of a fee a nineteenth century print entitled "Gentlemen of the Jury." Twelve white men are in the box; several whisper, one scowls, another dozes; not one face is friendly, receptive, or even intelligent. I have always wondered what the client, an elderly black lady, made of this possession which had hung in her parlor for many years. Most American juries looked a lot like that old print until well into the twentieth century. In 1957, a popular movie valorizing juries portrayed Twelve Angry (Caucasian) Men.2 In that movie, the defendant was white. But when a black man was on trial, the prototypical American jury became the ugly, unjust villain in another classic film made a few years later: To Kill a Mockingbird.3 The picture of an African American before a jury from which the state has "expressly excluded every man of his race"4 is a powerful negative image in our country. In 1992, the force of that image spilled out into the Los Angeles streets, following the acquittal of four white policemen accused of assaulting an African American named Rodney King (who was nominally the accused, but actually the defendant in the case). Public and professional voices joined to urge that a jury different only in the addition of African Americans would have changed the riotous response to the outcome, if not the verdict itself.5 In the "Rodney King case," the defense lawyers for the white police officers, after winning a change of venue to a predominantly white jurisdiction, used peremptory challenges to shape a jury that looked racially like the defendants.6 More commonly in criminal cases, it is the state that strikes people of color to prevent a jury from resembling the defendant. The practice has often resulted in minority defendants facing all-white juries. Driven by this negative image, the Supreme Court, starting with Batson v. Kentucky in 1986, has delivered six full-dress opinions dealing with the use of peremptory challenges,7 with the immediate goal of making it more difficult for litigants to engineer all-white juries through the use of peremptory challenges. Ultimately, though, the Court has embarked on a mission to eliminate racial bias from jury selection entirely. This series of cases is astonishing both in reach--potentially to every jury trial in every county, state, and federal courthouse--and in remedy--automatic reversal of criminal convictions and civil judgments. In all the cases regulating the use of the peremptory challenge, the Court has invoked the extreme remedy of reversal without any evidence that racial bias affected the jury's decision.8 The cases were uniformly sent back for new trials with new juries that would look better to the litigants, the people in the courtroom, and those watching from the outside. Thus far the Supreme Court has considered only the strikes of minority men--mostly African Americans--and thus has adhered to the "all-white" image that first impelled it on this course. But soon, the Court must decide whether gender can be a legitimate basis for removing individuals from the panel. The decision on gender will likely consummate a line of cases remarkable for its reaffirmation of faith in the fairly chosen jury. I will start by examining the conventional uses of the peremptory challenge and then turn to the cases that have so heightened its actual and symbolic place in the jury selection ritual. Here is the main point: although the Batson cases originated in concern for the rights of the black accused, they have, from the beginning, also dealt with harm inflicted on the excluded jurors. The goal of protecting those summoned to serve, once a background feature, has now moved to the center of the analysis. In effect, the Court has reframed the image of the black accused before the white jury, designating the striking of the individual juror as the critical moment. In light of this shift in emphasis, the question arises whether strikes of women because of their gender should be prohibited, like the strikes of blacks for their color in Batson. Equal protection analysis, illuminated by feminist theory and women's legal history, points clearly to an affirmative answer. Opponents of adding gender as a Batson category contend that it will make the peremptory impossible to administer; and some of its proponents agree, urging its abolition instead of reform. In the final section of the article, I will briefly outline various changes that would help preserve the peremptory challenge while ensuring that the whole jury selection process is more efficient and fair. These conclusions are very like those reached in another piece I wrote--my first as an academic--long before Batson was decided.9 I thought I was writing about voir dire, and merely using the peremptory as a vehicle to argue that the parties' ability to learn about potential jurors must be equalized (so that each side might make knowledgeable use of its challenges). But the part of the article most frequently cited was my description of the peremptory as a mask for the use of racial stereotypes in jury selection. Now as I address the peremptory issue explicitly, I wonder at how things change, and how they stay the same. Table of Contents I. Unspeakable Reasons and Unexplained Challenges II. The Democratic Jury III. Women and Juries IV. Preserving the Peremptory Conclusion: The Feminist and the Defense Lawyer I. Unspeakable Reasons and Unexplained Challenges The jurors who stand and swear to "do justice in this cause" between the plaintiff and defendant, or between the state and the accused, have survived four possible elimination points. Originally summoned from lists that typically exclude, for example, the criminally convicted, the homeless, and the unregistered voter, each juror then had a chance to offer a personal excuse (a sick child, inventory-time in a small business) for not serving. Later, they were called to a courtroom set for trial, and questioned by the judge or by counsel about their fitness to serve in the individual case. After this "voir dire" examination, the judge removed some among them for cause. Finally, lawyers for each side struck others without giving a reason--peremptorily. While the details of administration vary, this is the basic system for jury selection followed, or at least mandated, everywhere in the United States. We now understand, after many years of constitutional interpretation and statutory reform, that the ultimate goal of all these procedures is to achieve representative and impartial juries.10 On the surface at least, the peremptory challenge seems ill-suited for this purpose. The practical operation of the peremptory challenge is not always an uplifting sight. In hundreds of appellate cases--indicative of thousands more that left no record--we see the peremptory being used to remove people of color from juries. Many African Americans, for instance, who have made it to the jury lists and been summoned, neither excused for a personal reason nor struck for cause, were finally rejected without ceremony, articulation, or outward regard for individual impartiality or fairness.11 Most egregious were the cases in which the public prosecutor purposefully removed all members of a defendant's own race from the jury that would try him. The constitutionality of this worst-case scenario was originally affirmed in 1965 by the Supreme Court. In Swain v. Alabama, the prosecutor struck all African Americans from a capital jury that tried a black man accused of raping a white woman. Though disapproving in theory of a pattern of racially based challenges, the Court upheld the practice in the extreme situation before it.12 As translated by the courts below, Swain indicated acceptance, even endorsement, of open season on minority juror service. Prosecutors in many courts continued their regular, unabashed removal of people of color from juries, especially those that shared the same race as the accused.13 During the sixties, I was a public defender in the District of Columbia, where the free-wheeling use of peremptories was common practice on both sides. I used my strikes to eliminate white and middle-class black men, assuming that both groups would be unsympathetic to my usual client, a young African American man. Ideally, I wanted African American women for his jury--any age would do. Trying to produce a white majority on the jury, the prosecutor often challenged the black women. What chaos it seemed was present in those scenes: people making choices on the basis of intuition, stereotype, and prejudice! The fifty year old black janitor I struck from the jury that would have tried my twenty year old African American client for armed robbery might indeed have resented him; he might also have seen himself, his son, or the whole suffering race and felt the deepest empathy for the accused. Similarly, the prosecutors who dismissed African American women might have mistakenly deprived the People's jury of stern protectors of law and order.14 None of us selecting jurors in routine cases knew much about those we rejected. The wealthy or well-connected litigants who could afford jury- investigation services or other experts to assist them in looking beneath the stereotypes knew more. But even they did not often obtain the kind of information necessary to reveal the individual behind the pigmentation and the gender.15 Thinking along these lines many years ago, as an academic rather than a defender, I argued for expanding the pool of information available to everyone by enlarging and supplementing the voir dire procedures.16 Seeking to turn Swain into a silk purse, I urged that because the peremptory challenge had been elevated to near-constitutional status, both parties needed more information to use it effectively.17 Quoting Blackstone, I explained that the peremptory allows the litigant to dismiss "those he fears or hates the most, so that he is left with 'a good opinion of the jury, the want of which might totally disconcert him."'18 I noted other important functions of the peremptory as well, such as shielding the exercise of the challenge for cause. When voir dire questioning has alienated a juror without necessarily establishing a basis for removal, the litigant turns to the peremptory as insurance against bias. But the most cited passage was the one in which I advised against "trafficking in the core of the truth in most stereotypes," and located the central use of the peremptory in its allowance of the "covert expression of what we dare not say but know is true more often than not."19 Here is the main drift of the supporting argument: Common human experience, common sense, psychosociological studies, and public opinions polls tell us that it is likely that certain classes of people statistically have predispositions that would make them inappropriate jurors for particular kinds of cases. But to allow this knowledge to be expressed in the evaluative terms necessary for challenges for cause would undercut our desire for a society in which all people are judged as individuals and in which each is held reasonable and open to compromise.20 My thesis was that it would be unseemly and unfair openly to express the idea, for example, that older African American men holding low paying jobs would be prejudiced against my young black client who gave no signs of having worked hard, or at all. It would be equally unpleasant for the prosecutor to state the assumptions underlying his actions: that African American women would not convict young men who might be their sons or brothers. Instead of speaking the searing words that identified this fear, each side might quietly strike from the jury the object of his concern.21 I celebrated the evolution in the peremptory challenge as a method for dealing covertly with such assumptions, without the ugliness and embarrassment that would arise from expressing them. What I failed to recognize, however, was that, even though no words were spoken, tides of racial passion swept through the courtroom when the peremptory challenges were exercised. Everyone could see what was happening--voir dire. Perhaps the silence harbored thoughts worse than those that might have been said. In the years after Swain, this fear became more vivid, partly because of developments in the jury selection process that were ostensibly unrelated to the common practice of race-based peremptories. First, many more minorities were summoned for potential service. The civil rights movement ushered in the Federal Jury Selection Act of 1968.22 Widely copied in the states, the new act sought to make juries more representative by increasing the diversity of the pools from which they were drawn. But people of color--and white women--arrived at the courthouse in greater numbers only to be peremptorily ejected from particular courtrooms when a member of their race and gender was on trial. "Why bother to call us down to these courts," wrote one African American man, who with all others of his race was peremptorily struck from a jury, "we could be on our jobs or in schools trying to help ourselves instead of in courthouse Halls being Made Fools of."23 His experience was unusual only because he protested it to the chief prosecutor. Other developments in jury trial administration similarly heightened the unfairness of race-based peremptory challenges. The shape of the jury changed, scaled down to eight or even six in many places.24 When reducing the size of individual juries, most jurisdictions did not allow for a corresponding decrease in the number of peremptory challenges. Thus, though not deliberately intended, it became easier to remove all members of any racial minority from actual jury service.25 Another change that contributed to the decrease of minority participation on juries was the abandonment in many places of the requirement of jury unanimity.26 Thus, even if one or two African Americans remained on a jury, they would not necessarily be taken seriously because the decision could be 6-2, or 5-1. The litigant could effectively have her all-white verdict without an all-white jury. These and other trends brought the Swain issue back to the Supreme Court on a tide of unease that had been rising for twenty years. In Batson v. Kentucky, a prosecutor had used his challenges to remove the only four blacks from the venire in a routine criminal case.27 But this time the Court outlawed racially based peremptories by prosecutors in individual criminal cases, without proof of any pattern or practice of discrimination in other cases.28 Five years later it did the same for civil litigants on both sides of the case.29 Last term, in Georgia v. McCollum, the Court applied its ruling to strikes by criminal defendants as well.30 In McCollum, as in the Rodney King case, white men were accused of assaulting African Americans.31 In ruling that these criminal defendants must also give neutral, non-racial reasons for their strikes, the Court took another major step toward transforming jury selection. As a result, no one may lawfully remove jurors for racial reasons; nor may anyone hide his motives in a reverberating silence, but must, when called upon, give reasons that rise above prejudice and its surrogate: stereotype. These procedures may result in further veiling of race hatred behind barely plausible pretexts.32 Yet even this result, which I will argue need not follow, would be better than the open but unarticulated racism often practiced before. A central credo of contemporary culture is that the expression of thoughts and feelings ultimately helps to heal divisions. As Justice Kennedy, the chief architect of the new procedures, put it: The quiet rationality of the courtroom makes it an appropriate place to confront race-based fears or hostility by means other than the use of offensive stereotypes.33 Although the result in McCollum was certainly predictable, there was a strong argument for allowing criminal defendants to retain the unfettered peremptory. A substantial body of scholarship supported the peculiar importance to the accused of this traditional feature of jury trials.34 In its McCollum amicus brief, for example, the National Association of Criminal Defense Lawyers put the matter bluntly: The defendant's interest . . . outweighs the concerns of the rejected juror or the community polarized along racial lines. The juror is not at risk of losing life or liberty, and will perceive the defendant's strike as the defensive gesture it is by one stripped to a position of almost total powerlessness.35 But in this whole line of cases, the Court has not balanced competing rights, but blended them -- in the name of our national progress toward "multiracial democracy."36 Thus, the African American defendant's right to a jury of his peers is blended with the potential juror's right not to be excluded from juries; and over both of them, as well as over the community they share, the Court has thrown a mantle of equal protection. Whether women's rights (with attendant gender concerns) should now be included in the mix is the next question. The answer, in turn, depends on understanding how the rights of the accused became intermingled with those of the potential jurors and how the analysis shifted from the Sixth Amendment to the equal protection of the laws. II. The Democratic Jury Having lived through the Civil War, the Supreme Court Justices in the great Fourteenth Amendment case of Strauder v. West Virginia saw the black defendant before the white jury, and asked rhetorically: "[h]ow can it be maintained that compelling a colored man to submit" to a jury "from which the State has expressly excluded every man of his race . . . is not a denial to him of equal legal protection?"37 More than one hundred years of equal protection doctrine later, the Court in Batson followed Strauder exactly, finding that picture still unacceptable, though this time the State had used its peremptory challenges, rather than a statute, to exclude every member of the defendant's own race from his jury.38 Following Strauder exactly meant, first, that the Batson Court found that the black defendant's equal protection was violated. It meant as well that the Batson majority, like the Court in Strader, was concerned with discrimination against excluded black jurors. Finally, both opinions concluded that the harm from "selection procedures that purposefully exclude black persons from juries" flows to the entire community, undermining "public confidence in the fairness of our system of justice."39 Though Strauder is a venerable and impressive case, the Court's central reliance on it in Batson was startling. The grant of certiorari had not mentioned equal protection nor had Batson's counsel urged any such ground. Both had referred instead to the defendant's Sixth Amendment right to a jury drawn from a fair cross-section of the community.40 The Sixth Amendment, after being applied to the states in 1968,41 had become the chief vehicle for ensuring representative juries. Especially in light of Swain's burdensome approach to equal protection, criminal defendants attacking race-based peremptories had come to rely almost exclusively on the Sixth Amendment or its state constitutional analogs.42 The leading cases under the Sixth Amendment invoked "the American concept of the jury trial that contemplates a jury drawn from a fair cross section of the community," and added that the exclusion of distinctive groups from jury service was "at war with our basic concepts of a democratic society and a representative government."43 As the image of the all-white jury and the black accused rose once more before the Supreme Court in Batson, language like this would lend itself to a bold new effort to regulate the peremptory challenge. But there were significant problems in applying the Sixth Amendment cases to the situation of the jury stripped of African Americans by the prosecutor's peremptory strikes. Most notably, the fair cross-section cases, with their language of representation, all dealt with summoning the entire venire, not with seating the jury of an individual defendant. In a multi-racial society, including multi-racial individuals, it could be difficult to determine what exactly comprises a representative jury for a particular case.44 The timing of Batson was especially poor for applying the Sixth Amendment cross-section requirement to the petit jury, moreover, because Lockhart v. McCree was under consideration at the same time. Petitioner McCree had argued that the process of death-qualifying a jury--removing those doubtful about imposing the ultimate penalty--violated the fair cross-section requirement.45 In that context, the Court resoundingly rejected an extension of the fair cross-section requirement to actual trial juries as "unworkable and unsound."46 For these and other reasons, the Court did not openly follow the obvious Sixth Amendment path.47 Instead, it imported its concerns for the jury as a representative organ of the community into the allusive and diffused equal protection doctrine that it borrowed from Strauder.48 The crucial passage in Batson explained: Racial discrimination in selection of jurors harms not only the accused whose life and liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at trial. See Thiel v. Southern Pacific Co., 328 U.S. 217, 223-224 (1946). A person's race simply "is unrelated to his fitness as a juror."49 The next sentence is one of the many references to the mother case of this opinion: "As long ago as Strauder . . . the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror."50 But the Thiel citation is the true "Mene Mene Tekel Upharsin"51 of the Batson opinion. Translated, Thiel revealed that concern for the jury as an institution had become the centerpiece of the analysis. In peremptory challenge cases, this shift means that the rights of excluded jurors rather than those of litigants are paramount. We need only study Thiel briefly to understand how it signals the Court's switch from defendant to juror as the object of its equal protection concern. Out of his "normal mind," Thiel threw himself from the window of a moving train. He sued the railroad and lost before a jury chosen largely from a group of "business men and their wives."52 On appeal, he argued that there should have been more daily wage earners in the pool, though he did not urge that members of this class were more likely to respond to his claim. Indeed, there had been five apparently unsympathetic daily wage earners actually among the jurors who decided against him.53 Yet exercising its supervisory power, the Court reversed the judgment in order to "reassert" the "high standards of jury selection."54 Decided the year after the Second World War ended, Thiel rings with affirmations of the jury's fundamental role in a democratic society. Selection procedures should draw "every stratum of society into jury service" and treat "jury competence . . . as an individual rather than a group or class matter."55 The Court found essential to the jury's (somewhat mysterious) functioning that it include all elements of the community. When some identifiable group has been excluded, reversal, according to Thiel, was the only remedy that will "guard against the subtle undermining of the jury system."56 In the same year as Thiel, 1946, the Court decided a similar case, Ballard v. United States, involving male criminal defendants who objected to the lack of women in the jury pool.57 Again, acting under its supervisory power, the Court reversed the conviction because the exclusion of women "deprived the jury system of the broad base it was designed . . . to have in our democratic society." 58 Ballard was the second major case cited in Batson to support the blending of defendant's rights with those of the excluded juror.59 What should we make of the centrality of these two old cases--Thiel and Ballard--in the new peremptory challenge caseline? A great deal, I suggest. In a strictly doctrinal sense, they are the cases that join the Sixth Amendment fair cross-section concerns with the equal protection analysis of Batson. The major Sixth Amendment opinions cite these cases for the same propositions that followed from their citations in Batson. First, as we have already seen, the focus is on the jury as an institution and on the experience of those summoned to serve. Second, Thiel and Ballard are about the interest of the whole community in diverse juries. Finally, the old supervisory cases found that the remedy for exclusion was reversal of the judgment and the impanelment of a new jury. These three propositions (and their logical corollaries) are at the core of the equal protection mission taken up in Batson: to reclaim the jurybox as the microcosm of representative democracy.60 The first case after Batson allowed a white defendant to object to the exercise of discriminatory peremptory challenges against African Americans, thus separating concern about the all-white jury from the image of the African American accused.61 Powers v. Ohio harks back to Thiel, where a salaried employee raised the rights of daily wage earners, and to Ballard, where men objected to the lack of women in the venire. These were both civil cases, as was the next case in the peremptory challenge line, Edmonson v. Leesville Concrete Co.62 Thaddeus Edmonson was an African-American construction worker suing for injury on his job. Lawyers for the defendant concrete company struck all members of his race from the jury.63 Finding explicitly that removal of African American prospective jurors on the basis of race would violate their equal protection rights, the Court reversed the judgment for the concrete company. To reach this result, it not only held that Edmonson could raise the rights of the excluded jurors (not such a stretch after Powers), but also that the concrete company lawyers must be statesmen in the exercise of their peremptory challenges; they could not strike prospective jurors with only their client's narrow interests in mind. Engaging in jury selection transformed these insurance defense lawyers into representatives of the state, exercising its power, and thus charged with the corresponding duty not to discriminate.64 Edmonson explicitly rejected the main argument offered initially against the Batson line of cases that its extension would impair the peremptory challenge, whose ancient role is to promote the litigant's acceptance of the jury as his own. "If race stereotypes are the price for acceptance of a jury panel as fair, the price is too high," said the Edmonson Court.65 On the road to "progress as a multiracial society," they added, we "must recognize . . . that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury."66 In the interest, then, of the jury's appearance, other systemic concerns become strictly secondary. The Court privileged the jury's appearance over preservation of the peremptory challenge in Edmondson and over the peculiar needs of the criminally accused in relation to the jury in McCollum.67 As reversal for a new trial with a new jury is the remedy for the improper exercise of peremptory challenges, the Court swept aside as well the usually cherished goals of repose and finality of judgments. In Thiel and Ballard, decided under the supervisory power of the Supreme Court, and in the Sixth Amendment cases, like Taylor, this too was the remedy. But again, these cases do not deal with the selection of a particular petit jury. For this situation, we might have expected that the Court would require some showing of prejudice before ordering reversal. For a comparison of the remedy, consider the application of equal protection doctrine to voting rights cases. If African Americans are wrongfully excluded from the polls, the Court does not invalidate the election and order a new one.68 Yet this, in effect, is what happened in the Batson cases when the judgments were reversed. Reversal does attract attention and sharpen compliance efforts, and courtrooms are unlike the polls in terms of the Court's control over them and special interest in making them fair places. Arguably, without the remedy of reversal, the Court's strong words about the egregiousness of race-based peremptories might be dismissed as merely idealistic or hortatory. On the other hand, the Court has required a showing of prejudice before reversal in many other constitutional contexts.69 In interpreting the Batson line for habeas corpus purposes, the Court has held that racial bias in the exercise of peremptory challenges does not automatically affect the jury's truth-finding function.70 Thus, it is at least odd that the Court does not demand proof of harm to the jury's decision-making before reversing judgments on the direct appeal of Batson cases. The remedy of reversal adopted from other jury selection cases is one key to the meaning and thus the outer boundaries of the Batson doctrine. What the Court holds when it reverses is that something is terribly amiss with the process itself, something so serious that the result simply cannot stand. Reversals are an acknowledgement of an unarticulable evil, an unprovable loss. Only reversal, ruled the Thiel court over Justice Frankfurter's dissent, will prevent the "subtle undermining of the jury system," in ways not subject to measurement.71 Justice Marshall gave the fullest expression to the idea that we cannot measure the effects of exclusion on the jury's functioning in a case where a white man contested the exclusion of blacks from his jury. Speaking of the "unknown and perhaps unknowable" ingredient missing "[w]hen any large and identifiable segment of the community is excluded from jury service," he added: "It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented."72 These are sentiments that transcend logic and have no easy cut-off point before the limits of equal protection are reached. Similar views about the damage to decision-making caused by the removal of certain jurors appear most notably in two other cases: Ballard v. United States73 and Taylor v. Louisiana,74 both of which involved the exclusion of women from jury service. III. Women and Juries When the prosecutor announced, "The People will excuse and thank Juror Number 9, Mrs. Hemphill," there were murmurs . . . and hisses. . . . We all knew she was going to be excused. She knew it too. We were all embarrassed and saddened that Mrs. Janie Hemphill had to suffer another insult.75 Many women have responded to the court's summons, as Mrs. Hemphill did, only, like her, to be rejected upon arrival at the entrance to the jury box. The ones I felt for most when I was a defender were the sweet-faced white ladies with their walking shoes and hardcover books. Defense lawyers in the District of Columbia always struck them first. Sometimes I would convince my client that we should keep one simply because "she will love me." But usually, the African American men I represented preferred their own mothers to mine on the jury that would determine their liberty. These, the prosecutor struck. I am certain that the women who spent their jury duty being struck from criminal cases, and from large civil cases too, suffered injury much like that of the black men who have been the subject of the Batson line of cases. The Court has identified the injury as "a profound personal humiliation heightened by its public character,"76 and held that citizens must not be called to serve and then abused in this way. By shifting its equal protection concern largely to the effect of the peremptory on the stricken juror, the Court necessarily rendered gender-based challenges against women illegal.77 In this section, I will show why the long sad history of discrimination against women in the courtroom and on juries makes any other result insupportable.78 We can see this imperative most vividly in the situation of African American women. In fact, the difference in the standard of equal protection between racial and gender differences was born out of disregard for black women. When the Fourteenth Amendment conferred citizenship on the former slaves, only men attained the (all too formal) right to vote and to serve on juries--in any functional sense, only men became African Americans. The great post-Civil War movement for legal equality completely omitted the female half of the African American population. Strauder, the case after which Batson is modeled, found abhorrent the picture of a black man on trial before a jury from which all the members of his own race had been excluded. But this great case explicitly said that its concern for those African American jury members did not include concern for the African American women among them.79 Discrimination against women, even those who were former slaves, did not violate equal protection. History heightens the incongruity when a modern litigant strikes an African American woman and justifies the rejection in terms of gender. In one recent case in which an African American man was on trial for murder, the prosecutor explained a challenge by saying: "It's been my experience women are not good jurors in capital cases . . . . They feel more sympathetic than men. They go in there and feel like a mother."80 Perhaps in this case the prosecutor was striking all women to reach his stereotypical ideal for a capital jury-- white males. Yet the quoted words, spoken in response to a Batson challenge, also make gender a proxy for race. The use of gender as a pretext may explain why most of the cases arguing for the extension of Batson involve strikes of minority women.81 Not only may gender be used as a cover for race prejudice, but in the case of minority women, allowing gender strikes subjects them to the most virulent double discrimination: that based on a synergistic combination of race and sex.82 Noting that minority women have been "largely invisible in the debate about the use of the peremptory challenge," Shirley Sagawa, writing shortly after Batson was decided, argued that they "will be the first to be excluded from the jury if Batson does not cover gender. We can well surmise the message this will communicate; that Black women are the most prejudiced of jury members, the least qualified to serve."83 Eliminating women-based peremptories is the only way both to enforce the purposes of Batson and to offer, finally, some measure of equal protection to minority women. Perhaps, then, the Court might distinguish between white women and those of color when it requires justifications for peremptory challenges.84 This result, however, would deny history and demean the equal protection principles on which jury selection jurisprudence now stands. White women abolitionists like Susan Anthony, Lucy Stone, the Grimke sisters, and many others sought freedom for all black slaves and equal rights for themselves at the same time. It was not until after the Civil War that the causes of former slave men and white women were divorced from each other. How this happened is a complicated piece of history, with conflicting accounts of who was at fault in splitting the coalition. It is clear that the early woman suffrage movement itself broke apart over the refusal of Anthony and Elizabeth Cady Stanton to support the Fourteenth Amendment because it restricted the word "citizen" with the word "male" for the first time in the Constitution.85 The former female slaves did not figure into the rhetoric of the Republicans and reformers who turned the white women away with the phrase: "It is the Negro's hour," to which Elizabeth Cady Stanton angrily replied: "May I ask . . . just one question based on the apparent opposition in which you place the Negro and the woman. My question is: do you believe the African race is composed entirely of males?"86 Sojourner Truth, virtually the only black woman's voice from this early period, said: "There is a great stir about colored men getting their rights, but not a word about the colored women and if colored men get their rights, and not colored women theirs, you see the colored men will be masters over the women, and it will be just as bad as it was before."87 The woman suffrage movement was born in the dawn of the realization that unless they were forced into it, neither politicians nor statesmen would ever go beyond the enfranchisement of black men. It took fifty-two years, roughly fifty national campaigns, and almost 1,000 state campaigns, as well as the whole adult life of many earnest women, to win the vote. From the beginning, their struggle was also about the right to serve on juries. The two causes were the twin indicia of full citizenship both in the minds of woman suffragists and in the attitudes of American society.88 The force of this history has borne in on me lately as I have studied the seemingly endless petitions and debates, conventions and marches, bill-drafting and lobbying, that consumed the time of Clara Shortridge Foltz, a pioneer suffragist and the first woman lawyer on the Pacific Coast. Using one important year of her life for illustration--the year before Strauder, I want to show first that the arguments against women in public life were fused. Whether it was the vote, jury service, or entry to the professions that women sought, they met the same contentions about their rightful roles, and they found each rejection rooted in "an assertion of their inferiority."89 In the years 1878 and 1879, Foltz, together with other suffragists, including notably Laura Gordon, the second woman lawyer in California, pursued rights for themselves and other women in every conceivable public forum. They began in the legislature where they lobbied for woman suffrage, and for the amendment of the California code section that limited the legal profession to white men. They faced the constant refrain that voting, its attendant right to serve on juries, and being a lawyer, would "unsex" women--a charge as dire then as it would be today. Its force appears in the following verse from a popular magazine, printed at the moment Foltz and Gordon were campaigning for access to the ballot and the jury box: Shame unto womanhood! The common scold Stands railing foul-mouthed in the public street; And in the mart and 'fore the justice seat Her shallow tale of fancied wrongs is told. No woman these such as our hearts enfold, Mothers and wives are cast not in this mold.90 The apparent fear was that a public woman would no longer have time for the domestic duties that were her higher and finer calling. Time spent "fore the justice seat," would, moreover, be a pollutant for women who were supposed to inhabit an ideal world of nurturance and tenderness. By the very nature of their personalities and training, women were unfit for "all the nastiness of the world which finds its way into courts of justice, all the unclean issues . . . sodomy, incest, rape, seduction, fornication, adultery . . . libel and slander of sex, impotence, divorce" and many more "among the nameless catalogue of indecencies."91 This is a quote from an opinion, read in its entirety by Clara Foltz's opponent who argued in 1879 that though she had been admitted to practice law, she should not be allowed to study it at California's newly established Hastings College of the Law. The opinion, written by a Wisconsin judge, denied Lavinia Goodell the right to practice law, because "[r]everence for all womanhood would suffer in the public spectacle of women so engaged."92 Woman defiled was a common rhetorical trope in the debate about all forms of equal rights and jury service its prime example. For instance, when Clara Foltz, Laura Gordon, and the other suffragists lobbied the California constitutional convention of 1879 to include woman suffrage, the chief opponent, assuming that the vote would bring with it jury service, argued that women would lose their purity first by hearing all the terrible evidence in court, and second by being sequestered with male strangers to decide the case. This idea of women relating to men as fellow jurors was seen as singularly lewd. In exasperation, one of the women's supporters finally made the relevant comparison to crude racist arguments, recalling that when the great abolitionists Gerritt Smith and Wendell Phillips spoke: [T]here were . . . these old whited sepulchers, asking us: "Do you want your daughter to marry a nigger?" . . . Now these same fossilized ideas are presented to an intelligent audience. "Do you want your daughter locked up on a jury room? . . . Ha ha."93 The third standard argument by opponents was that women would skew the otherwise reliable factfinding process. It was speculated that they would vote only for handsome men, whether at elections or on juries. Similarly, women lawyers would use their seductive wiles to cause juries to acquit the guilty and reward the undeserving.94 Whether as lawyers or as jurors, it was thought that women would not be able to sustain the mental labor and intensity of the work and would constantly fall ill, causing mistrials and other inefficiencies in the system.95 Although the arguments against women in public life were joined, winning the vote and right to practice law did not automatically carry with it access to jury service in every state.96 Women who had counted on the vote to solve the major problems of discrimination now waged new battles for equal jury representation. In California, Clara Foltz saw the clause she had won at the 1879 constitutional convention, guaranteeing women access to all businesses, vocations, and professions, become the centerpiece of an opinion upholding their right to serve on juries.97 In this renewed struggle, women lawyers were in the forefront speaking, writing, lobbying, petitioning, and briefing cases which they signed in their professional capacity.98 Like the suffrage crusades, the campaign for jury service was arduous and long. The law reports of many states, and federal courts as well, reflect the second major wave of women's quest for political and social equality.99 Perhaps the best known state case is the old law school chestnut that held, even after women were enfranchised, that the word "voter" in a jury eligibility statute referred solely to males.100 In 1961, the Supreme Court ruled in Hoyt v. Florida101 that a state could automatically exclude women from jury service unless they voluntarily registered, without violating equal protection of the laws. It was not enough for Gwendolyn Hoyt to show that of 46,000 registered women voters in the county, only 220 had volunteered over a period of many years as jurors. Nor was the Court appalled by the sight of a woman on trial for the murder of her husband before an all-male jury. Instead of resonating with equal protection concerns (like Strauder) the opinion invoked "woman as the center of home and family life," and found that the state's interest in enabling her presence there could reasonably supersede all else.102 But Hoyt is, in some sense, an outlier among Supreme Court cases treating gender and jury service. Many of the Court's most far-reaching jury cases deal with women, including those that rendered Hoyt obsolete by requiring that there be a fair cross-section of the community in jury pools.103 Moreover, in holding that the "systematic and intentional exclusion of women, like the exclusion of a racial group," violated a federal statute whose purpose was to make juries representative, the Court in Ballard v. United States wrote words whose ring has yet to be fully realized: "The truth is that the two sexes are not fungible . . . 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."104 To recapitulate the history, women sought jury service as one facet of a greater struggle for recognition in the public life of the community. Arguments that it would be unseemly, inappropriate, and harmful for women to be jurors were joined with the contentions that they were incompetent to vote or practice law as well. In the end, acceptance of women as jurors proved hardest to achieve because special legislative exemptions (like that in Hoyt) made it unlikely that women would actually serve even when they had the right. As these kinds of exemptions have largely disappeared, the remaining point at which women may effectively be excluded from jury service is in the exercise of the peremptory challenge. The denouement of the whole jury selection story came down to the peremptory challenge for African Americans too, resulting in the Batson line of cases. Because the story of women's exclusion from jury service is not only analogous to the history of racial exclusion but also the same story growing out of the same historical period and events, the same conclusion must also be reached. What the Supreme Court said of the African Americans who were peremptorily struck in Edmonson is equally true of women: they should no longer be "required by summons to be put at risk of open and public discrimination as a condition of their participation in the justice system."105 Opponents of the extension of Batson will argue that the implications of woman-based strikes are fundamentally different from racial peremptories. There is less humiliation and stigma, they will say, when gender rather than race is the reason for the peremptory challenge. Yet to those watching in the courtroom, at the counsel tables, in the newspapers and appellate records, striking a woman for no apparent reason other than her gender carries a message far different than striking, for example, a lawyer from the jury, even (or especially) a woman lawyer. The message comes from the long history of sex discrimination in this country and is based strongly "in archaic and overbroad generalizations."106 The unexplained strike of a woman says that she does not belong on the jury--that she could not be impartial or that she is incompetent. The crude stereotypical message is summed in the trial manuals and jury selection tracts that typically advise that "women are more suspicious of other women, especially as plaintiffs in civil cases or defendants in criminal cases" and that "women are more likely than men to be influenced by the physical attractiveness and personality traits of witnesses."107 Striking individual women on the assumption they hold such views because of their sex is "practically a brand upon them, affixed by the law, an assertion of their inferiority"--to return as ever to the words of Strauder.108 Again it will be said, all peremptory challenges are based on stereotypes, expressing various intuitive biases. When a postman or Presbyterian is struck, unpleasant stereotypes are also at work--so goes the refrain.109 But in the case of the postman or the Presbyterian, the same ancient stereotypes about their competence and predispositions have not been used to prevent them from voting, being summoned for juries, pursuing their chosen professions and vocations or otherwise participating in public life and discourse. Though women are now becoming lawyers, as well as voting and holding office in unprecedented numbers, sex discrimination still exists and the courtroom, in particular, remains, in many jurisdictions, a white male arena. Gender bias task forces in more than half the states have documented the unequal, and comparatively bad, treatment of women attorneys, witnesses, and parties in the courtroom.110 The open and unjustified striking of women from juries only adds to the chill. Not surprisingly, women lawyers are once again in the forefront of the final fight to win equal access to jury service.111 IV. Preserving the Peremptory The tradition of peremptory challenges . . . already venerable at the time of Blackstone, was reflected in a federal statute enacted by the same Congress that proposed the Bill of Rights, was recognized in an opinion by Justice Story to be part of the common law of the United States, and has endured through two centuries in all the States.112 The Supreme Court leaves the translation of large edicts like those in the Batson line to the offices and officers of the courts below. Some would find the peremptory challenge too much like the offending right hand, and heeding the Biblical injunction, simply cut it off.113 Others would make race the only forbidden category.114 Still others, with whom I agree, would use the occasion to rework and revitalize the jury selection process so that it better suits all its declared purposes, one of which is to help ensure the willing acceptance of verdicts.115 Critics and dissenters have warned (or perhaps threatened) that the Batson line will make the peremptory challenge so difficult to administer that its abolition must quickly follow.116 To forbid gender-based strikes would simply be the last straw under this view. Somewhat paradoxically, though, the Batson dissenters have in the course of their argument, elevated the peremptory from an ordinary (if old) procedural device to near constitutional status.117 Repeatedly, the Supreme Court and lower courts have praised the peremptory challenge as well-designed to ensure both that juries are impartial and that they appear so to the litigants and to society at large.118 Thus, any effort to abolish peremptories would rouse due process objections, as well as Sixth or Seventh Amendment claims about the nature of the jury that is guaranteed to defendants or litigants. Aside from the difficulty of accomplishing it, total elimination of the peremptory challenge is ill-advised as it would focus jury selection entirely on the challenge for cause. The judge alone--in a series of highly discretionary, practically unreviewable decisions--would then be permitted to shape the jury in every case. But under the Constitution, the jury trial is guaranteed precisely because our tradition is not to trust the unilateral actions of judges.119 In particular, the jury is meant to offset the class bias and elitism that characterizes the judiciary, yet we can hardly expect judges to find "cause"--i.e. incipient bias--in jurors who reflect their own image in background or outlook. Not only would the increased importance of the cause challenge heighten the judge's power, but abolition of the peremptory would make it more difficult for the litigant to lay the groundwork for a cause challenge, as vigorous questioning may antagonize and hence prejudice a potential juror. The peremptory challenge is the insurance that makes genuine inquiry into juror bias possible.120 Most important, the peremptory endows the litigant with a role in the process, thus promoting in Blackstone's words "a good opinion of the jury the want of which might totally disconcert him."121 Although the Supreme Court disallows race as a reason for striking jurors, and should forbid female gender as an explanation also, it does not follow that litigants must relinquish all sense of choice over their shared juries. The peremptory is important enough that instead of urging our legislatures to abolish it, we should seize the occasion of the Supreme Court's intervention in jury selection to enact modern statutes that will aid our "progress toward a multiracial democracy."122 This essay concludes by outlining some of the elements such a statute might include, though many of the suggestions could easily be implemented by trial judges or by appellate courts through their respective supervisory powers.123 A comprehensive statute would begin by broadening the juror pool beyond voter registration lists to include licensed drivers, utility users, and residents listed in the city directory.124 Jurors to be summoned should each receive (on the back of the summons), as they now often do, a questionnaire covering items relevant to their basic fitness to serve. The statute would forbid racial and gender discrimination in the exercise of peremptory challenges. It would also reduce peremptories where they are disproportionate to jury size in the jurisdiction.125 In light of the history of the peremptory challenge and of the greater significance of the jury verdict to the criminally accused, legislation might award more challenges to the defense. The voir dire process can also be changed to facilitate the exercise of peremptory challenges on a basis other than race or gender. Juror questionnaires can be supplemented by questions, tailored to individual cases designed to probe the attitudes of potential jurors toward sensitive issues that are likely to arise.126 Such tailored questionnaires can help the parties base their arguments for cause challenges and their exercise of peremptories on actual suspicion of race prejudice rather than simply on the color of the potential juror's skin. And though they cannot substitute for some public procedures--to see and to hear is, after all, the point of voir dire--the questionnaires can provide grounds for open inquiry that neither humiliates the potential juror nor rouses the ire of the others in the venire.127 In order to explore prejudiced attitudes more effectively and efficiently, the parties might give their opening statements to the whole venire and then make inquiries afterward for both cause and peremptory challenges. Potential jurors would then understand how and where their answers fit into the theory of the case and the evidence that will be presented.128 Once procedures are in place allowing parties to act on intimations of actual bias, rather than on the crude proxy of race or gender, then the requirement for making a prima facie case by letting one or two strikes pass before objecting would no longer be necessary.129 Expanding the information available from voir dire responds to the concerns of those who fear that modifying the peremptory challenge will destroy the mystique--or science--of jury selection. Automatic strikes of white women and people of color are not only unnecessary to the art, but they detract from it. When the legendary jury lawyer Clarence Darrow spoke in a much-cited passage of "the knowledge of life, human nature, psychology and the reactions of the human emotions," that a lawyer must bring to jury selection, he was looking at juries that contained no racial minorities and few women.130 Rather, in shaping the jury he examined "nationality, business, religion, politics, social standing, family ties, friends, habits of life and thought; the books and newspapers he likes and reads and many more matters that combine to make a man."131 These qualities will still be open for consideration after the Batson line of cases is complete. Litigants should be able to point to attitudes that, when held by an individual, would make for bias in a particular case, and to devise procedures for uncovering these. Recently, for instance, professional football players sued to terminate a contractual system in which they allegedly could not market their services freely.132 They submitted affidavits from sports psychologists about the biases of "highly identified sports fans" and sought a tailored questionnaire, individual voir dire and extra peremptory challenges to identify and eliminate such fans.133 Special procedures for exploring attitudes and experience might also be appropriate to sexual harassment cases, for another example, rather than the present crude system in which one side strikes women and the other, men.134 Finally, the actual routine of exercising challenges can be revised to ease the stigma of rejection. One attractive suggestion is a form of "affirmative selection,"135 in which, after voir dire and cause strikes, each party designates, in preferential order, those venire persons who should sit on the jury. Jurors who appear on both lists are seated, and then, alternating between lists until the number of peremptories is reached for each side, the Court will either seat or strike a juror who appears on only one list. If the juror is a white woman or a person of color, a neutral explanation would be required. At the very least, courts should insist, as many already do, that the explanations for strikes are offered out of the potential juror's presence. The Batson doctrine establishes three kinds of challenges: cause; peremptory; and modified peremptory, i.e. those for which some explanation is required.136 In many jurisdictions, practices regulating and enabling a modified peremptory are already in effect and can serve as models for statutory, as well as discretionary procedural change.137 Although its administration takes time at the jury selection stage, and still generates new issues for appeal, Batson has not, by any account, created the chaos some critics warned it would. And, less than a decade has passed since the case was decided--not very long in law time. There is, finally, much we can do procedurally to ease the burden of making jury selection actually and symbolically representative of our best collective selves. Conclusion The Feminist and the Defense Lawyer I have been subject to warring impulses in writing this piece. At heart, I will always be a criminal defense lawyer--one of that peculiar breed who look to the jury for their clients' salvation and their own. Thus, though it has been twenty years since I tried a case, I cannot view with academic detachment the picture of a jury that includes somebody the defendant hates or fears--even for irrational, or unpopular, reasons. That picture could materialize were the peremptory abolished. On the other hand, as I study American women's history through the experiences of a single women lawyer, I see how prejudice cripples lives and extinguishes hopes. When Clara Foltz, who could not vote or serve on juries, appeared in court, she often first had to defend herself before she could reach her client's cause. The accusation was always, in one form or another, simply: "She is a woman." Through Foltz's struggles, I have learned that acceptance of the phrase, "She is a woman" as an explanation for any exclusion denies equal protection of the laws. That sort of unfair discrimination, exacerbated when women of color are rejected, occurs now and will continue if women may be peremptorily removed for their gender alone. Harmonizing these oppositions, I suggest that jury selection procedures be expanded and elevated to preserve the peremptory challenge while eliminating its excesses. This is a conclusion that reconciles competing claims, widens the context, embraces what is, and rejects only rigid dichotomies: thus it is feminist in method as well as in effect. *. (c) 1992 Barbara Allen Babcock **. Ernest W. McFarland Professor of Law, Stanford Law School. Professor Babcock presented the Marx lecture in April 1992, at the University of Cincinnati College of Law. The subject was gender and jury service in light of women's legal history, with the career of Clara Shortridge Foltz as a major source and example. The lecture featured the unveiling of an oil portrait of Foltz, painted by her great-grandson, Truman Toland, a Cincinnati artist. Grateful acknowledgement is due Laura Gomez, Joanna Grossman, and Lauren Willis for their research assistance, made possible by a bequest from the Dorothy Redwine estate. I want to thank also the Stanford Law Library staff for their help in exploring the past and keeping up with the present of the jury system for the last year. Mary Erickson (Stanford 1989) provided research assistance, supported by the Brookings Institution, which also enabled me to write on the themes of community representation and civil juries. My civil procedure colleagues, Janet Cooper Alexander and Janet Halley, as well as Jamie Kogan (Stanford 1991) made many helpful comments and suggestions on an ealier draft of this work. As always, Thomas Grey provided a high order of intellectual, editorial, and other support. Finally my thanks to the University of Cincinnati College of Law for the opportunity the Marx lecture provided to take a first turn at considering my biographical subject as a jury lawyer. 1 Peters v. Kiff, 407 U.S. 493, 503 (1972) (Marshall, J.). 2 Twelve Angry Men (Metro-Goldwyn-Mayer 1957). 3 To Kill A Mockingbird (Universal Pictures 1962). 4 Strauder v. West Virginia, 100 U.S. 303, 309 (1879). 5 There were 10 whites (five women and five men), one Latino, and one Asian American woman on the jury. See generally Marcia Chambers, Sua Sponte, Nat'l L.J., May 18, 1992, at 13 (arguing that moving case from ethnically diverse Los Angeles to Simi Valley no doubt had dramatic impact on outcome); Erwin Chemerinsky, How Could the King Jury Do That?, Legal Times, May 11, 1992, at 18 (noting that instead of racially mixed jury pool with sense of city's police problems, jury pool was virtually all-white and dominated by conservative law- and-order mentality); Joseph Kelner & Robert S. Kelner, The Rodney King Verdict and Voir Dire, N.Y.L.J., May 26, 1992, at 3 ("The ethnic, philosophical and social predilections of Ventura County's residents predictably provided jurors with penchant for finding reasonable doubt of guilt despite police brutality."); David Margolick, As Venues are Changed, Many Ask How Important a Role Race Should Play, N.Y. Times, May 23, 1992, at 7; Timothy P. O'Neill, Wrong Place, Wrong Jury, N.Y. Times, May 9, 1992, at 23; Barry Scheck, Following Orders, New Republic, May 25, 1992, at 17 ("The result surely would have been different if there were blacks on the jury, or the jurors were less homogeneous."). But cf. Roger Parloff, The American Lawyer, June 1992, at 7 (suggesting that jury that represented a more accurate cross-section of community would, in the end, likely have come to same legal conclusions as Simi Valley jury). Parloff admitted, however, with hindsight, that an acquittal in a case like this tried before a jury with no blacks could "never command public confidence." Id. at 8. 6 The number of African Americans in the pool of potential jurors had been drastically reduced before the challenge stage by the change of venue from Los Angeles to Ventura County. See Powell v. Superior Court, 283 Cal.Rptr. 777, 779 (Ct.App. 1991) (reversing trial court's refusal to change venue for pre-trial publicity, emphasizing "political turmoil and controversy" surrounding case). No other change of venue had been granted in Los Angeles County since 1973, due to the diverse pool of 3.5 million jurors on which the county draws. Sheryl Stolbergg, Judge Offers to Move Trial of 4 Officers, L.A. Times, June 19, 1991, at A1. The population of Ventura county is two percent African American, and that same pe