Supreme Court Bars Sex Bias in Jury Selection

Saying the day is past when women or men can be excluded from juries based on “group stereotypes,” the Supreme Court on Tuesday outlawed sex discrimination in jury selections.

“Equal opportunity to participate in the fair administration of justice is fundamental to our democratic system,” retiring Justice Harry A. Blackmun wrote. Permitting trial lawyers to exclude people from juries because of their sex “serves to ratify and perpetuate invidious, archaic and overbroad stereotypes about the relative abilities of men and women,” he said.

The 6-3 decision culminates a century-long struggle to assure women equality in the courtroom.

After the Civil War, the 14th Amendment guaranteed all people the “equal protection of the laws,” and the Supreme Court in 1880 invoked that clause to say states could no longer bar blacks from juries. However, almost as an aside, the all-male tribunal added that unquestionably states “may confine the selection (of jurors) to males.”

In this century, the legal barriers to women serving on juries slowly fell. But as late as 1947, 16 states continued to exclude women from juries.

Even after those barriers were removed, sex discrimination in the courtroom did not end.

By tradition, trial lawyers are permitted to exclude a fixed number of potential jurors based on a hunch that the person will look unfavorably on their client. At least until recently, the hunches behind those “peremptory strikes” often involved judgments relating to a person’s race or sex, as well as his or her appearance, nationality or occupation.

Peremptory strikes are justified on the theory that, by permitting both sides to exclude the potential jurors most likely to be biased, the result will be a jury panel that is fair and impartial.

But beginning in the 1986 case of Batson vs. Kentucky, the Supreme Court moved to forbid lawyers to use race in striking potential jurors. Follow-up rulings broadly extended the principle.

The sweeping logic of those rulings virtually assured that blatant sex discrimination would soon be outlawed as well, and that final step came Tuesday.

The National Women’s Law Center applauded the ruling as a “landmark decision for women’s rights” that recognizes “the shared history of discrimination faced by women and racial minorities in this country.”

The ruling requires no change in the courtrooms of California. The state Supreme Court and the U.S. 9th Circuit Court of Appeals based in San Francisco already have forbidden sex discrimination in jury selections.

Dissenting Tuesday were Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. Scalia called the ruling a triumph for “thoroughly up-to-date and right thinking” that may hurt women more than it will help them. “But times and trends do change, and unisex is unquestionably in fashion,” he said.

Scalia noted that the victor in Tuesday’s decision was an Alabama man who, because all males had been excluded from his jury, won a retrial in a paternity suit even though a blood test showed with 99.9% certainty that he was the father.

The defendant, James E. Bowman, had protested when a state prosecutor moved to strike men from the roster of potential jurors. The panel concluded that Bowman was indeed the father of the boy born in 1989, and it ordered him to pay the mother $415 a month in child support. The Alabama Supreme Court upheld the ruling and said Bowman had not suffered any prejudice in the jury selection. It noted that his lawyer had moved to exclude as many women as possible from the jury.

In the high court, state prosecutors argued that in sensitive cases, such as those involving rape, paternity or sexual harassment, they should be permitted to exclude as many men as possible.

But the justices disagreed, reversed the state court in the case of J.E.B. vs. Alabama, 92-1239, and overturned the paternity judgment.

Despite the outcome of that case, a women’s rights advocate said the wider effect of the ruling will be a benefit for all.

“Everyone--men and women--has an interest in having jurors selected on a non-discriminatory basis,” said Deborah L. Brake of the National Women’s Law Center. Although prosecutors in Bowman’s retrial will not be permitted to exclude all the men, the defense lawyer will not be permitted to seek the exclusion of all women, she said.

During jury selection, an allegation of race or sex bias can trigger the judge to intervene. Then, the lawyer who had moved to strike a particular juror is called upon to explain the reason for his or her move. If the lawyer can supply a non-discriminatory reason, the juror can be excluded, Blackmun said.

His opinion was joined by Justices John Paul Stevens, Sandra Day O’Connor, David H. Souter and Ruth Bader Ginsburg. In a separate statement, Justice Anthony M. Kennedy said he agreed with the result.

In her concurring opinion, O’Connor, the first woman to serve on the high court, made clear that she did not share the majority’s view that all sex distinctions must be banned.

“We know that like race, gender matters,” she wrote. “In rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors.”