|Taylor v. Louisiana
[ White ]
[ Rehnquist ]
Taylor v. Louisiana
APPEAL FROM THE SUPREME COURT OF LOUISIANA
MR. JUSTICE REHNQUIST, dissenting.
The Court's opinion reverses a conviction without a suggestion, much less a showing, that the appellant has been unfairly treated or prejudiced in any way by the [p539] manner in which his jury was selected. In so doing, the Court invalidates a jury selection system which it approved by a substantial majority only 13 years ago. I disagree with the Court, and would affirm the judgment of the Supreme Court of Louisiana.
The majority opinion canvasses various of our jury trial cases, beginning with Smith v. Texas, 311 U.S. 128 (1940). Relying on carefully chosen quotations, it concludes that the "unmistakable import" of our cases is that the fair cross-section requirement "is an essential component of the Sixth Amendment right to a jury trial." I disagree. Fairly read, the only "unmistakable import" of those cases is that due process and equal protection prohibit jury selection systems which are likely to result in biased or partial juries. Smith v. Texas, supra, concerned the equal protection claim of a Negro who was indicted by a grand jury from which Negroes had been systematically excluded. Glasser v. United States, 315 U.S. 60 (1942), dealt with allegations that the only women selected for jury service were members of a private organization which had conducted pro-prosecution classes for prospective jurors. Brown v. Allen, 344 U.S. 443 (1953), rejected the equal protection and due process contentions of several black defendants that members of their race had been discriminatorily excluded from their juries. Carter v. Jury Comm'n, 396 U.S. 320 (1970), similarly dealt with equal protection challenges to a jury selection system, but the persons claiming such rights were blacks who had sought to serve as jurors.
In Hoyt v. Florida, 368 U.S. 57 (1961), this Court gave plenary consideration to contentions that a system such as Louisiana's deprived a defendant of equal protection and due process. These contentions were rejected, despite circumstances which were much more suggestive of possible bias and prejudice than are those here -- the defendant [p540] in Hoyt was a woman whose defense to charges of murdering her husband was that she had been driven temporarily insane by his suspected infidelity and by his rejection of her efforts at reconciliation. Id. at 58-59. The complete swing of the judicial pendulum 13 years later must depend for its validity on the proposition that, during those years, things have changed in constitutionally significant ways. I am not persuaded of the sufficiency of either of the majority's proffered explanations as to intervening events.
The first determinative event, in the Court's view, is Duncan v. Louisiana, 391 U.S. 145 (1968). Because the Sixth Amendment was there held applicable to the States, the Court feels free to dismiss Hoyt as a case which dealt with entirely different issues, even though, in fact, it presented the identical problem. But Duncan's rationale is a good deal less expansive than is suggested by the Court's present interpretation of that case. Duncan rests on the following reasoning:
The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," Powell v. Alabama, 287 U.S. 45, 67 (1932); whether it is "basic in our system of jurisprudence," In re Oliver, 333 U.S. 257, 273 (1948); and whether it is "a fundamental right, essential to a fair trial," Gideon v. Wainwright, 372 U.S. 335, 343-344 (1963); Malloy v. Hogan, 378 U.S. 1, 6 (1964); Pointer v. Texas, 380 U.S. 400, 403 (1965). . . . Because we believe that trial by [p541] jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases. . . .
Id. at 148-149. (Emphasis added.)
That this is a sturdy test, one not readily satisfied by every discrepancy between federal and state practice, was made clear not only in Williams v. Florida, 399 U.S. 78"]399 U.S. 78 (1970), and 399 U.S. 78 (1970), and Apodaca v. Oregon, 406 U.S. 404 (1972), but also in Duncan itself. In explaining the conclusion that a jury trial is fundamental to our scheme of justice, and therefore should be required of the States, the Court pointed out that jury trial was designed to be a defense "against arbitrary law enforcement," 391 U.S. at 156, and "to prevent oppression by the Government." Id. at 155. The Court stated its belief that jury trial for serious offenses is "essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants." Id. at 158.
I cannot conceive that today's decision is necessary to guard against oppressive or arbitrary law enforcement, or to prevent miscarriages of justice and to assure fair trials. Especially is this so when the criminal defendant involved makes no claims of prejudice or bias. The Court does accord some slight attention to justifying its ruling in terms of the basis on which the right to jury trial was read into the Fourteenth Amendment. It concludes that the jury is not effective, as a prophylaxis against arbitrary prosecutorial and judicial power, if the "jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool." Ante at 530. It fails, however, to provide any satisfactory explanation of the mechanism by which the Louisiana system undermines the prophylactic role of the jury, either in general or in this case. The best it can do is to [p542] posit "‘a flavor, a distinct quality,'" which allegedly is lost if either sex is excluded. Ante at 532. However, this "flavor" is not of such importance that the Constitution is offended if any given petit jury is not so enriched. Ante at 538. This smacks more of mysticism than of law. The Court does not even purport to practice its mysticism in a consistent fashion -- presumably doctors, lawyers, and other groups, whose frequent exemption from jury service is endorsed by the majority, also offer qualities as distinct and important as those at issue here.
In Hoyt, this Court considered a stronger due process claim than is before it today, but found that fundamental fairness had not been offended. I do not understand how our intervening decision in Duncan can support a different result. After all, Duncan imported the Sixth Amendment into the Due Process Clause only because, and only to the extent that, this was perceived to be required by fundamental fairness.
The second change since Hoyt that appears to undergird the Court's turnabout is societal in nature, encompassing both our higher degree of sensitivity to distinctions based on sex, and the "evolving nature of the structure of the family unit in American society." Ante at 535 n. 17. These are matters of degree, and it is perhaps of some significance that, in 1961, Mr. Justice Harlan saw fit to refer to the
enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men.
Hoyt, 368 U.S. at 61-62. Nonetheless, it may be fair to conclude that the Louisiana system is, in fact, an anachronism, inappropriate at this "time or place." Ante at 537. But surely constitutional adjudication is a more canalized function than enforcing as against the States this Court's perception of modern life. [p543]
Absent any suggestion that appellant's trial was unfairly conducted, or that its result was unreliable, I would not require Louisiana to retry him (assuming the State can once again produce its evidence and witnesses) in order to impose on him the sanctions which its laws provide.