Tuesday, March 30, 2010

None of Them Look Like Me

The numbers are coming in, and they're not pretty.

Jonathan Adler at The Volokh Conspiracy makes it the title of his post.
Sixth Circuit 0-3 in Habeas Cases This Term
The third of those cases, Berghuis v. Smith, was decided in an opinion released this morning. The other cases are Bobby v. Van Hook and Smith v. Spisak. All were appeals by the state from decisions in favor of the habeas petitioner. Worse, all were decided without dissent.

(And there are two more up this term: Renico v. Lett, which I wrote about Sunday and was argued yesterday, and Berghuis v. Thompkins. Those cases, too, are appeals from decisions by the Sixth in favor of the habeas petitioners. Expectations of affirmances are likely not warranted.)

Smith always struck me as a tough sell. Here's a summary of the background from the Opinion's syllabus (which, as a note always reminds, is not "part of the opinion" but is prepared solely "for the convenience of the reader."
At voir dire in the Kent County [Michigan] Circuit Court trial of respondent Smith, an African-American, the venire panel included between 60and 100 individuals, only 3 of whom, at most, were African-American. At that time, African-Americans constituted 7.28% of the County’s jury-eligible population, and 6% of the pool from which potential jurors were drawn. The court rejected Smith’s objection to the panel’sracial composition, an all-white jury convicted him of second-degree murder and felony firearm possession, and the court sentenced him to life in prison with the possibility of parole.
Smith objected and kept objecting. His claim, in the simplest terms, is that the way jury panels were put together in Kent County systematically excluded African-Americans from juries in serious criminal cases. After a series of conflicting rulings from various state and federal courts, Smith won in the Sixth Circuit and Michigan appealed. Here's how Justice Ginsburg described the issue in the first sentences of her opinion for the Court.
The Sixth Amendment secures to criminal defendants the right to be tried by an impartial jury drawn fromsources reflecting a fair cross section of the community. See Taylor v. Louisiana, 419 U. S. 522 (1975). The question presented in this case is whether that right was accorded to respondent Diapolis Smith.
It's a very tough claim on which to prevail, especially under AEDPA. Smith, of course, failed. That's not particularly surprising and, except to Smith, not all that interesting. (Kent County has changed at least a portion of the process about which Smith complained.) What is interesting, though, is the concurring opinion by Clarence Thomas. And to see why, we have to step back and take a broader look at the issues.

We're all familiar with the idea, from 5th grade civics, that people are entitled to "a jury of their peers." Clients and smart ass kids often think that means a jury of people just like them (criminals, smart ass kids, whatever), but of course it means no such thing. Generally, it's taken to mean a jury that is broadly (very broadly) representative of the demographics of the community. The language from the case law is that the jury should be drawn from a "fair cross-section" of the community. But even that is, if you actually look, a recent construct.

It was really only during the last half of the 20th Century that the courts seemed to have understood that meaning. Certainly, you won't find any of those words in the Constitution. Here's what the Sixth Amendment says on the subject.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district within which the crime shall have been committed, which district shall have been previously ascertained by law.
The Constitutionally spelled out right isn't to a jury of one's peers or a representative sample or a fair cross section. It's to an impartial jury. No more and no less. Oh, sure, we all know better. Can't exclude blacks. Can't exclude women. The Ohio Supreme Court just said you can sometimes, but only sometimes, exclude the deaf.

And then, along comes Justice Thomas.
The text of the Sixth Amendment guarantees the right to a trial by “an impartial jury.” Historically, juries did not include a sampling of persons from all levels of society or even from both sexes. See, e.g., Alschuler & Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 877 (1994) (In 1791, “[e]very state limited jury service to men; every state except Vermont restricted jury service to property owners or taxpayers; three states permitted only whites to serve; and one state, Maryland, disqualified atheists”); Taylor v. Louisiana, 419 U. S. 522, 533, n. 13 (1975) (“In this country women were disqualified by state law to sit as jurors until the end ofthe 19th century”). The Court has nonetheless concluded that the Sixth Amendment guarantees a defendant the right to a jury that represents “a fair cross section” of the community. Ante, at 1 (citing Taylor, supra). In my view, that conclusion rests less on the Sixth Amendment than on an “amalgamation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment,” Duren v. Missouri, 439 U. S. 357, 372 (1979) (Rehnquist, J., dissenting), and seems difficult to square with the Sixth Amendment’s text and history. Accordingly, in an appropriate case I would be willing to reconsider our precedents articulating the “fair cross section” requirement. But neither party asks us to do so here, and the only question before us is whether the state court’s disposition was contrary to, or an unreasonable application of, our precedents. See ante, at 2−3, 8−10; 28 U. S. C. §2254(d). I concur in the Court’s answer to that question.
It's breathtaking in its simplicity. The Sixth Amendment doesn't say anything about sex or race or ethnicity or disability or class. The jury is to be impartial and (broadly defined) local. No more and no less. And so, Thomas would have it again. Let's go back to the days when women and people of color and the poor could be excluded. The Constitution never even suggested that the sort of people who typically get hauled into court would be included among the sorts to judge them.

As the narrator of The Lone Ranger used to say,
Return with us now to those thrilling days of yesteryear.
For now, Thomas is alone in that wish.


  1. And Scalia believes that the Establishment Clause presents no barrier to the U.S. declaring itself a Christian nation and then enacting laws advancing that position.

    The problem with the outliers (and those are obviously both outlier positions today) is that they sometimes (not always, but sometimes) eventually gain a majority. To pick two examples where outliers ultimately and fortunately were vindicated, Justice Harlan dissented from Plessy and Justice Curtis from Dred Scott.