Alexander v. Louisiana/Concurrence Douglas

[p634] MR. JUSTICE DOUGLAS, concurring.

While I join Part I of the Court's opinion, I am convinced we should also reach the constitutionality of Louisiana's exclusion of women from jury service. The issue is squarely presented, it has been thoroughly briefed and argued, and it is of recurring importance. The Court purports to follow "our usual custom" of avoiding unnecessary constitutional issues. But that cannot be the sole rationale, for both questions are of constitutional dimension. We could just as well say that deciding the constitutionality of excluding women from juries renders it unnecessary to reach the question of racial exclusion.

It can be argued that the racial exclusion admits of the "easier" analysis. But this Court does not sit to decide only "easy" questions. And even when faced with "hard" constitutional questions, we have often decided cases on alternate grounds where a decision on only one would have been dispositive. See, e.g., Dunn v. Blumstein, ante, p. 330.

Petitioner complains of the exclusion of blacks and women from the grand jury which indicted him. Conceivably, he could have also complained of the exclusion of several other minority groups. Would he then be relegated to suffer repetitive re-indictment and re-conviction while this court considered the exclusion of each group in a separate lawsuit?

[p635] I believe the time has come to reject the dictum in Strauder v. West Virginia, 100 U.S. 303, 310, that a State "may confine" jury service "to males." I would here reach the question we reserved in Hoyt v. Florida, 368 U.S. 57, 60, and hold that Art. 402, La. Code Crim. Proc., as applied to exclude women as a class from Lafayette Paris jury rolls, violated petitioner Alexander's constitutional right to an impartial jury drawn from a group representative of a cross-section of the community.

It is irrelevant to our analysis that Alexander attacks the composition of the grand jury that indicted him, not the petit jury which convicted him, for it is clear that a State which has a grand jury procedure must administer that system consonantly with the Federal Constitution. The Court assets, however, that "federal concepts" of a grand jury do not obligate the States, and cites Hurtado v. California, 110 U.S. 516, 538. Ante, at 633. But Hurtado supports no such proposition. That case merely held that the Fifth Amendment grand jury requirement was not binding on the States. It said nothing as to the constitutional requirements which obtain once a State chooses to provide a grand jury, and we are directed to no other case which does speak to the subject. But this Court has said time and again, regardless of a State's freedom to reject the federal grand jury, and to reject even the petit jury for offenses punishable by less than six months' imprisonment, Baldwin v. New York, 399 U.S. 66, "Once the State chooses to provide grand [p636] and petit juries, whether or not constitutionally required to do so, it must hew to federal constitutional criteria...." Carter v. Jury Commission, 396 U.S. 320, 330.

It is furthermore clear that just such a "federal constitutional criter[ion]" is that the grand jury, just as the petit jury, must be drawn from a representative cross-section of the community. The Court was speaking of both grand and petit juries in Carter v. Jury Commission, supra, when, quoting Smith v. Texas, 311 U.S. 128, 130, it defined the jury as "a body truly representative of the community." 396 U.S., at 330. The Court was speaking of grand and petit juries when it said in Brown v. Allen, 344 U.S. 443, 474: "Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty." (Emphasis supplied.) As Mr. Justice Black said, speaking for the Court in Pierre v. Louisiana, 306 U.S. 354, 359: "Indictment by Grand Jury and trial by jury cease to harmonize with our traditional concepts of justice at the very moment particular groups, classes or races... are excluded as such from jury service." (Footnote omitted.)

The requirements that a jury reflect a cross-section of the community occurs throughout our jurisprudence: "The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, [p637] necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130; Glasser v. United States, 315 U.S. 60, 85." Thiel v. Southern Pacific Co., 328 U.S. 217, 220. Accord, Williams v. Florida, 399 U.S. 78, 100; Witherspoon v. Illinois, 391 U.S. 510, 520; Ballard v. United States, 329 U.S. 187, 192-193; Labat v. Bennett, 365 F. 2d 698, 722-724.

This is precisely the constitutional infirmity of the Louisiana statute. For a jury list from which women have been systematically excluded is not representative of the community. "'It is said, however, that an all male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men—personality, background, economic status—and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim [p638] that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.' Ballard v. United States, supra, at 193-194. (Emphasis supplied; footnotes omitted.)"

The record before us, moreover, indisputably reveals that such a systematic exclusion operated with respect to the Lafayette Parish jury lists. There were no women on the grand jury that indicted petitioner, and there were no women on the venire from which the jury was chosen. While the venire was selected from returns to questionnaires sent to parish residents, not a single one of the some 11,000 questionnaires was even sent to a woman. This was done deliberately.

[p639] The State relies on the fact that the automatic exemption it grants to women is the same as the one upheld in Hoyt v. Florida, 368 U.S. 57. In Hoyt, however, there were women on the jury rolls,m and the jury commissioners had made good-faith efforts to include women on the jury lists despite the fact that they had an automatic exemption unless they volunteered for service. Id., at 69 (Warren, C.J., concurring). Here, on the other hand, only the feeblest efforts were made to interest women in service, and there was testimony that only a single woman had filled out a jury service questionnaire. This, out of a parish population of 45,000 adults, 52% of whom were female.

The absolute exemption provided by Louisiana, and no other State, betrays a view of a woman's role which [p640] cannot withstand scrutiny under modern standards. We once upheld the constitutionality of a state law denying to women the right to practice law, solely on grounds of sex. Bradwell v. State, 16 Wall. 130. The rationale underlying Art. 402 of the Louisiana Code is the same as that which was articulated by Justice Bradley in Bradwell: "Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband...

"...The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases." Id., at 141-142.

[p641] Classifications based on sex are no longer insulated from judicial scrutiny by a legislative judgment that "woman's place is in the home," or that woman is by her "nature" ill-suited for a particular task. See, e.g., Reed v. Reed, 404 U.S. 71. But such a judgment is precisely that which underpins the absolute exemption from jury service at issue. Insofar as Hoyt, supra, [p642] embodies this discredited stereotype, it should be firmly disapproved. See Johnston & Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N.Y.U. L. Rev. 675, 708-721 (1971).

[p643] Louisiana says, however, that women are not totally excluded from service; they may volunteer. The State asserts it is impractical to require women affirmatively to claim the statutory exemption because of the large numbers who would do so. This argument misses the point. Neither man nor woman can be expected to volunteer for jury service. Hoyt, supra, at 64-65. See L. Kanowitz, Women and the Law 30 (1969). Thus, the automatic exemption, coupled with the failure even to apprise parish women of their right to volunteer, results in as total an exclusion as would obtain if women were not permitted to serve at all.

Some violations of due process of law may be excused in the context of a criminal trial, if the error cannot be shown to have had an effect on the outcome. See, e.g., Giglio v. United States, ante, p. 150; Napue v. Illinois, 360 U.S. 264, 272. But the right to a representative jury is one which would be trivialized were a similar requirement imposed: "'We can never measure accurately the prejudice that results from the exclusion of certain types of qualified people from a jury panel. Such prejudice is so subtle, so intangible, that it escapes the ordinary methods of proof. It may be absent in one case and present in another; it may gradually and silently erode the jury system before it becomes evident. But it is no less real or meaningful for our purposes. If the constitutional right to a jury impartially drawn from a cross-section of the community has been violated, we should vindicate [p644] that right even though the effect of the violation has not yet put in a tangible appearance. Otherwise that right may be irretrievably lost in a welter of evidentiary rules.' Fay v. New York, 332 U.S. 261, 300 (Murphy, J., dissenting)."

A statutory procedure which has the effect of excluding all women does not produce a representative jury, and is therefore repugnant to our constitutional scheme. Cf. White v. Crook, 251 F. Supp. 401, 408-409 (MD Ala. 1966). For these reasons, I would hold Art. 402, La. Code Crim. Proc., to be unconstitutional.