Topic for Assignment: Representation of women in judicial positions and the impact of their presence in the Judicial system historically
Secondary Source: Chng, Huang Hoon. 2002. “WHO ARE MY PEERS? WOMEN, MEN, AND THE AMERICAN JURY.” Australasian Journal Of American Studies 21, no. 1: 46-62. America: History and Life with Full Text, EBSCOhost (accessed November 29, 2016).
Trial by an impartial jury according to equal protection of the laws is guaranteed in Article III of the Bill of Rights, and by the Sixth, Seventh, and Fourteenth Amendments to the Constitution; however, juries often have not been composed of one’s ‘peers’ in regards to gender equality and rather often consist of a “potentially biased single-sex panel of laypersons.” Interestingly, while jury trials themselves are guaranteed by the constitution, participation by both genders is not. Historically, both men and women have claimed to have not received fair trials for this reason due to the fact that juries primarily consisted of only white males (an example of this could be the treatment of rape cases in colonial New York [“A Roomful of Men”]) until women’s suffrage began to become legalized at state levels and women were permitted to serve on juries (Utah was the first state to do so in 1898 while some southern states didn’t allow women the right to serve on juries up until the 1960’s). In the 1941 Supreme Court case, Glasser v. United States, the Supreme Court first analyzed whether the exclusion of women from jury service caused unfair cross-sections of peer representation; however, the case was dismissed. It wasn’t until 34 years later that the Supreme Court ruled that the exclusion of women was related to unsympathetic verdicts in the 1975 case of Taylor v. Louisiana (which was in total, 55 years after women’s suffrage was nationally legalized).
One of the main reasons why American women were excluded from jury service up until the late 20th century is that American law originates from the English common law system that “rendered women second-class citizens at best” because they were “incapable of the intelligent decision-making required for jury duty” (this was called “the defect of sex”). Because of this, the definition of ‘peer’ was heavily influenced by the all-male legal and judicial systems of early America–despite the fact that at various points in time women well outnumbered the American male population. While this appears to be a very archaic view on women’s capabilities, these beliefs regarding women’s intelligence and decision-making skills prolonged well into the 19th and 20th century–as seen in the story of Lavinia Goodell (although it was not referred to as the “defect of sex”, but rather, “feminine nature”). Additionally, most of the discrimination cases that went before state supreme courts and the United States Supreme Court were in reference to racial, not gender, inequality in jury trials–something that further prolonged the involvement of women in jury service. More so, while states did eventually allow women to serve on juries, often times, in actual practice women were not summoned to serve on juries (this occurred in California in the 1940’s) and some states created specific laws that excluded women from jury service altogether or set up additional steps that needed to be followed to serve on a jury (that were only required of women).
For example, Florida’s Supreme Court denied one woman’s claim that she had the right to be tried by a jury of female peers, had an exclusive policy of deliberately discounting female voices in the state jury system, and also created a law that stated: “the name of no female person shall be taken for jury service unless [she] has registered with the clerk of the circuit court her desire”–this was done to discourage women from jury participation by “insisting on an additional step to indicate their willingness to perform this duty”. When Gwedolyn Hoyt was convicted of second-degree murder by an all-male jury and then challenged their verdict due to a lack of female ‘peers’ present, she found that out of the thousands of names listed as possible jury members in Florida, only 10 were women’s names–proving just how difficult state law made it for women to serve on a jury. When Hoyt mentioned this fact in her appeal to the United States Supreme Court (Hoyt v. Florida), the court (all-male as well–which could explain there answer) responded by saying:
“Despite 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, woman is still regarded as the center of home and family. We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities”.
The response of the court suggests that ‘peers’ in the jury were not intended to be a fair cross-section of society, but rather, able white men. While Hoyt was advocating for women in the jury in order to gain sympathy towards her cause, studies (such as those done by Barbara Palmer in my second post) have shown that women tend to execute justice more fairly than their male counterparts in judicial settings. Additionally, the court’s response evidences the inherent patriarchy in the judicial system nationally (and resulting judicial prejudices against women) as well as nationally shared social ideologies that resulted in enforced gender roles placed upon women (often restricting them to work within the private sphere alone). Outside of the United States Supreme Court and Florida’s court rulings, the Mississippi Supreme Court also referred to woman’s “services as mothers, wives, and homemakers” as a basis for protecting them from “the filth, obscenity, and noxious atmosphere that so often pervades a courtroom during a jury trial”. Just as with Lavinia Goodell and the Pennsylvania newspaper’s reporting of Arabella Mansfield’s appointment to the bar in Iowa, the socially prescribed gender roles and nature assigned to women were used as justification to deny and question their entry into judicial positions. When the issue of women being excluded from jury positions was brought up again in 1975 with Taylor V. Louisiana, the Supreme Court ruled in favor of Billy Taylor (a white male–perhaps why his case fared better than Gwendolyn Hoyt’s appeal) 8-to-1.
Despite the Supreme Court’s ruling, as women became legally allowed and required to serve in juries, overt exclusion and discrimination in the actual selection of female candidates for jury duty arose (something that did not happen prior to 1975 because women were weeded out before the selection process even began). This is evidenced in the 1983 case of Bobb V. Municipal Court of California. Ms. Bobb was harrassed by the prevailing judge and was explicitly asked gendered questions that were irrelevant to her standing as a potential jurist:
The Court (C): Miss Bobb, what is your occupation?
Miss Bobb (B): I’m an attorney.
C: And in your practice do you practice criminal law as well as civil law?
B: No, I practice entirely bankruptcy law.
C: All right. Is there a Mr. Bobb?
B: I have some difficulty with that question because I’ve noticed only the women have been asked to answer that.
C: Yes, I know. Do you have a Mr. Bobb – is there a Mr. Bobb?
B: Are you going to pool [sic] the men to see if they care to disclose –
C: No, I’m just going to ask you if you have a husband or not. Do you have a husband?
B: I don’t care to answer it then. What’s relative to women is relative to men.
C: Yes, I know. What is your husband’s occupation?
B: I don’t care to answer that.
C: I instruct you to answer.
B: I don’t think I should.
C: I’ve got – you understand that you’ll be in contempt of Court – jury – you’re an attorney, you understand these rules, don’t you?
B: No, I do not understand why only the women are asked certain questions and the men aren’t asked the same questions.
C: The question to you, Mrs. Bobb – you ‘re an attorney at law, you understand the rules and regulations of – of – of being an attorney. And the question to you now simply is: What is your husband’s occupation?
B: I refuse to answer.
C: You’re held in contempt of Court, Mrs. Bobb.
While juries today are relatively fair and cross-sectional and more true to the concept of a jury of ‘peers’ mentioned in the Constitution and Bill of Rights, men still outnumber women in most court jury settings. Additionally, the exclusion of women from jury service throughout most of America’s history has had significant consequences in regards to promoting injustice due to gender biases and unbalanced juries. Had women been allowed into jury service at an earlier point in time, women’s issues in the courts most likely would have received fair consideration and women’s cases perhaps would have ended differently with more just verdicts. The historical mistreatment of women and the upholding of sexist practices in regards to jury service can be directly traced back to the masculine and patriarchal nature of the justice system. Just as with the women who attempted to break into the judiciary as lawyers, attorneys, and judges, female representation in regards to jury service has been an uphill battle–further proving that gender does matter in the court.