The Supreme Court reaffirmed the value of diverse juries in Smith v. Texas when the Court held that juries are instruments of public justice and should genuinely represent the communities they embody. The history of women serving on juries is one of exclusion that mirrors the experiences of black people and other minorities in this country who have been excluded from jury service. With the landmark case of Taylor v. Louisiana in 1898, Utah became the first state to allow women to serve on juries. It wasn’t until the Civil Rights Act of 1957 that congress provided that all citizens were fit to serve as jurors, regardless of state law.
But these landmark decisions did not create a positive right to have women on a jury when the party or accused defendant is a woman. And while the Sixth and Fourteenth Amendments of the constitution prohibit the exclusion of individuals from a jury based on race or gender, they do not require a diverse jury. Even a procedural safeguard like the Batson Doctrine, which limits the state's use of peremptory strikes because of a jurors race, has its limitations. At its best, the Batson Doctrine addresses overt racial discrimination by the state during jury selection but is criticized for not being robust enough to deal with subtle racial discrimination.
A Jury of Her Peers
The Supreme court broadened Batson’s scope to exclude peremptory challenges based on juror’s gender and held that the use of peremptory challenges warrants heightened scrutiny afforded to all gender-based classifications. This decision is criticized by many for prioritizing the potential harm to jurors who are excluded from the jury and ultimately harms criminal defendants at the center of a trial, especially women. Did the Supreme Court miss the mark by extending Batson protections to gender? Yes because despite their noble efforts, the Supreme Court didn’t get it right. Under the banner of preserving diversity, the Supreme Court was able to prevent a woman from using peremptory strikes to advocate for herself to ensure that a jury of her peers contains as many women or people of her choosing as possible. This decision singles a progressive rule change towards gender acknowledgment but fails to account for the actual problems affecting women in the legal system. Justice O’Connor in a departure from the majority’s reasoning in J.E.B. v. Alabama cited the importance of gender differences in juror's attitudes in rape cases and noted that “[O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case... “Will we, in the name of fighting gender discrimination, hold that the battered wife - on trial for wounding her abusive husband - is a state actor? Will we preclude her from using her peremptory challenges to ensure that the jury of her peers contains as many women members as possible? I assume we will, but I hope we will not.”
Gender Dynamics and jury Deliberation
Even when women make it onto a jury, gender norms prevent women from engaging effectively which compromises the effectiveness of the jury trial. Social scientists highlight the importance of the diversity of ideas as creating impartiality on juries. Many courts have used juror handbooks, voir dire, and videotapes to educate the jury about the effects of gender dynamics on the deliberation process and to encourage women to speak up. These efforts fall short and also miss the mark. Instead of addressing larger gender dynamics in our society, these methods simply ask women to change their behavior and lean in more. The courts are taking steps in the right direction to address the lack of participation of women on juries. But it will take more than a couple of pamphlets to upend decades of gender discrimination in the legal system, especially when a woman's ability to dictate who serves on her jury can be so limited in scope.
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