BOSTON — * Sometimes the issue regarding jury service isn't a person's duty to serve, but rather the right to serve. The United States Supreme Court has progressively struck down laws and practices that prohibited blacks and women from serving as jurors.
In the first cases, the high court invalidated statutes that barred minorities and women from jury duty. More recently, the justices have, in a series of decisions beginning with Batson v. Kentucky in 1986, outlawed as unconstitutional lawyers' use of ``peremptory challenges'' to exclude black people from juries.
This term, the Supreme Court will decide whether gender bias in the exercise of peremptory challenges also violates the equal-protection clause of the 14th Amendment.
In the paternity trial of an Alabama man to determine his child-support obligations, the state, suing on behalf of the child's mother, bumped all men from the jury. The all-female jury ruled for the mother. In his appeal to the high court, called J.E.B. v. T.B., the putative father challenged the state's discriminatory conduct. The case will be argued in the Supreme Court Nov. 2.
In state and federal trials, litigants are granted - besides challenges to jurors ``for cause'' - a prescribed number of peremptory challenges, whereby they may excuse jurors on intuition or instinct, without stating a reason. This centuries-old practice, rooted in English law, is intended to ensure the fairness of juries.
In six cases beginning with Batson, however, the Supreme Court ruled that in both criminal and civil trials, peremptory challenges may not reflect racial discrimination. Now the court will decide if the same reasoning applies to gender discrimination.
Constitutional scholars generally assume that, given the Supreme Court's earlier development of sex-discrimination doctrine and the rationales behind the Batson line of cases, the justices will have little difficulty in ruling in favor of the father's appeal.
Observers will watch to see if new Justice Ruth Bader Ginsburg uses the case to sharpen constitutional arguments against sex discrimination that she advanced as a women's rights lawyer in the 1970s - often in cases that, like this one, involved men's rights.