‘No’ to Sexism in Jury Selection

In picking juries, prosecutors and trial lawyers have long attempted to shape the panels to their liking by excluding older or younger people, men or women or others on the basis of stereotypical assumptions about group sympathies. The Supreme Court ruled Tuesday that jurors may not be excluded on the basis of their sex alone. The ruling is welcome, a logical and overdue extension of a 1986 Supreme Court decision that barred peremptory challenges of potential jurors because of their race.

Writing for the 6-3 majority, in one of his last opinions before retiring, Justice Harry A. Blackmun called selection by sex an “unconstitutional proxy” for juror impartiality and competence, adding that such discrimination ratified “archaic and overbroad stereotypes” about gender.

A sarcastic dissent by Justice Antonin Scalia charged the majority with paying “conspicuous obeisance” to equality of the sexes in the interest of political correctness. The ruling, Scalia said, undermines the ancient English common-law concept of peremptory challenges by which each side gets a certain number of exclusions for which no reason is given. “Unisex is unquestionably in fashion,” he wrote sneeringly. He was joined, predictably, by the two other members of the court’s medieval wing, Chief Justice William H. Rehnquist and Justice Clarence Thomas.

Although the ruling has been hailed by women’s groups, it is worth noting that the case at issue was an appeal from an Alabama man who claimed that he was denied a fair trial in a paternity case because all his jurors were female. And Justice Sandra Day O’Connor, reluctantly concurring with the majority, observed that gender does make a difference and that the ruling could hurt female defendants in cases such as that of a battered wife who wounds her husband.

O’Connor has a point. But in a way her opinion bolsters Blackmun’s view, for surely a male rape defendant deserves the same impartiality or gender sympathy that the battered wife deserves. In recent years, lawyers have perverted jury selection by using high-paid consultants who rely on dubious psychological profiles. It may be hopelessly idealistic to think that justice can ever be blind, but the high court’s ruling is a step in the right direction.