abstract. For most of American history, the jury was considered an elite institution, composed of “honest and intelligent men,” esteemed in their communities for their “integrity,” “reputation,” or “sound judgment.” As a result, jurors were overwhelmingly male, jurors were overwhelmingly white, and jurors disproportionately hailed from the middle and upper social classes. By the late 1960s, an entirely different, democratic conception of the jury was ascendant: juries were meant to pull from all segments of society, more or less randomly, thus constituting a diverse and representative “cross-section of the community.” This Article offers an intellectual and social history of how the “elite jury” lost its hegemonic appeal, with particular emphasis on the overlooked radicals—anarchists, socialists, Communists, trade unionists, and Popular Front feminists—who battled to remake the jury. This Article offers a novel look at the history and tradition of the American jury, demonstrating how the Sixth Amendment’s meaning was—gradually, unevenly, but definitively—reshaped through several decades of popular struggle, grassroots mobilization, strategic litigation, and social-movement contestation.

author. Professor of Law, University of Virginia School of Law. This project profited greatly from feedback received at faculty workshops at George Washington, Cornell, and Cardozo law schools; the Neighborhood Criminal Law Conference, the Vanderbilt Criminal Justice Roundtable, and the UChicago Constitutional Law Conference; and in the Juries, Race, and Citizenship seminar at Duke Law School. I am particularly indebted to Emily Coward, Daniel Epps, Brandon L. Garrett, Valerie Hans, David Huyssen, Joseph E. Kennedy, Nancy J. King, Anna Lvovsky, Kelly Orians, Mary Reynolds, Jocelyn Simonson, and Brad Snyder. Cyrus Khandalavala and the editors of the Yale Law Journal deserve a special acknowledgment for their diligent work strengthening and sharpening the final product. All errors are mine.

Introduction

In 1975, when the U.S. Supreme Court first held that the Sixth Amendment right to a jury trial necessarily contemplates a jury drawn from a “fair cross section of the community,” the outcome seemed like a “foregone conclusion.”1 Congress had already declared in 1968 that federal defendants had a statutory right “to grand and petit juries selected at random from a fair cross section of the community,”2 and the Court was gradually recognizing that “the essential feature of a jury obviously lies . . . in . . . community participation and shared responsibility,” which (“probably”) meant juries large enough to serve as “representative cross-section of the community.”3 Notably, as it took shape, the Supreme Court’s fair-cross-section doctrine eschewed any focus on discriminatory intent: a jury drawn from an unrepresentative pool generally cannot be “impartial” within the meaning of the Sixth Amendment, regardless of whether the disparities are attributable to a clerk’s discriminatory animus or an accidental computer glitch.4 True, the Supreme Court has never required any particular petit jury to be perfectly, or even roughly, “representative” of the local community. The Court has repeatedly rejected the suggestion that a defendant might have the right to be judged by jurors sharing some particular identity or trait.5 But the ideal of the jury that constitutes a fair cross-section of the community—or, what I will generally refer to as the “representative jury” throughout this Article—has triumphed.6 When a high-profile jury trial occurs, we are accustomed to asking whether the petit jury is representative of the community from which it is drawn.7 Americans expect, and want, juries to mirror the demographics of the community—if not in every case, at least in the aggregate.8

But this conception of the jury, now common sense, is new. In 1925, only a handful of radicals would have recognized it.9 Indeed, for most of American history, juries were not “cross-sections” of the community, nor were they legally required to be “representative” in any meaningful sense. Most jurisdictions limited jury service to “honest and intelligent men . . . esteemed in the community for their integrity, good character and sound judgment.”10 Judges, jury commissioners, and “key men” tasked with identifying suitable jurors populated their lists with upstanding citizens who, in their minds, satisfied these subjective statutory requirements and were “above average” in every regard. The predictable result: jurors were men, jurors were white, and jurors disproportionately hailed from the middle and upper social classes.11 As Judge Learned Hand wrote in 1950, defendants could repeat the phrase “cross-section” ad nauseum, but it was “idle to talk of the justness of a sample, until one knows what is the composition of the group which it is to represent.”12 Historically, jurors were citizens possessing “intelligence, character and general information,” so if a method of summoning jurors “resulted in weighting the list with the wealthy” (a disproportionate number of whom supposedly boasted such qualities), surely it could not be unlawful.13 More recently, Justice Thomas has made a related point: the constitutional requirement that juries be drawn from a representative cross-section of the community “seems difficult to square with the Sixth Amendment’s text and history.”14 The representative jury is not the inheritance of some unbroken tradition, but rather a deliberate, relatively recent departure from it.

To be sure, the democratic promise of a jury as a body of one’s “peers” dates to the Magna Carta. “urors and voters were conceptualized as complementary legislators” at the Founding,15 with the jury box giving “the common people [as jurors]” a mechanism to wield control in the judiciary.16 Throughout the nineteenth century, criminal defendants, often racial minorities and women, protested that unrepresentative juries denied them their basic constitutional rights.17 But the “elite jury” still reigned.18 In American law and culture, little incongruity existed between the idea of a “jury of one’s peers” (or the “impartial” jury guaranteed by the Sixth Amendment) and the dominant practice of elite juries.19 And democratizing the jury box by taking affirmative steps to include those who lacked the superior qualities expected of jurors struck many as nonsensical.20 So, what changed? How did our popular, common-sense understanding of the jury shift so dramatically over such a short period of time?

There are standard ways of answering these questions. The most superficial might stress the relatively late dates of landmark Supreme Court cases democratizing the jury—Taylor v. Louisiana in 1975 and Batson v. Kentucky in 1986, for example—and view these opinions exclusively as downstream (and belated) fruits of “the civil rights movement of the 1960s ca up with the jury.”21 On this view, the law of the jury is something of a backwater, with the most important civil-rights developments occurring in the realms of public education, voting, employment, or public accommodations. A more nuanced, though still top-down, doctrinal account might locate the seeds of the Supreme Court’s mature “fair-cross-section” jurisprudence in cases decided somewhat earlier.22 In 1940, for example, responding to an egregious record of racial exclusion of Black jurors in Harris County, Texas, Justice Black asserted for the majority, without citation, that “t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.”23 In subsequent cases, dicta endorsing “the concept of the jury as a cross-section of the community” began appearing in Supreme Court opinions.24 On occasion, the Court used its supervisory power to vacate federal criminal convictions where incontrovertible evidence established that wage earners25 or women26 had been improperly excluded from jury service as a class. After the Warren Court incorporated the right to trial by jury against the states in 1968,27 it was only a matter of time before dicta from these earlier cases—and the inchoate democratic principles they articulated—crept into constitutional criminal procedure.

Looking beyond the Supreme Court, however, offers a far richer answer. From such a perspective, this Article argues that the “elite jury” lost its hegemonic appeal in significant part due to a forgotten struggle to democratize the American jury—beginning decades before what is classically viewed as the heyday of the Civil Rights Movement.28 The protagonists of this story include not only litigators affiliated with well-known organizations like the NAACP and the ACLU, but also left-wing radicals—anarchists, Communists, socialists, trade unionists, and Popular Front feminists—who recognized the jury box as an important battleground in overthrowing capitalism, dismantling white supremacy, and expanding the horizons of twentieth-century American democracy. Their battle to remake the jury was waged not only in the courtroom but also through confrontational “mass defense” campaigns in the streets, often at substantial personal risk. Lawyers who raised jury-discrimination claims risked lynching and professional ruin; protestors supporting their efforts were sometimes met with police truncheons and tear gas.29 In the short term, their combined efforts achieved mixed results in individual cases—but they were effective in exposing the yawning gap between America’s rhetoric of equal citizenship and the criminal-legal system’s inegalitarian reality. In the long run, they played a critical role in transforming a core American institution.

This Article’s basic aim, then, is to recover the role of nonelite, nonstate actors—radical lawyers, civil-rights organizers, labor activists, and excluded juror-citizens themselves—in enduring forms of lawmaking. The central contribution of this Article is not simply that the Supreme Court’s fair-cross-section jurisprudence reflects the ideological contribution of socialists or Communists, actors often regarded as external or even hostile to American democracy.30 Nor does this Article contend that radical activists were the representative jury’s sole architects; the fair-cross-section requirement was propelled by a broad array of social, political, and legal developments alongside those this Article foregrounds.31 Instead, this Article demonstrates that these radical litigants and the masses they mobilized—and, in particular, their engagements with the legal institutions they viewed with profound skepticism—comprise a missing and indispensable vantage point from which to understand the doctrine’s development. Following Lani Guinier and Gerald Torres, this Article’s genealogy of the fair-cross-section doctrine is offered as a “demosprudential” case study in how popular participation and collective action—not just courts or legislatures—influenced cultural understandings of the jury, the development of legal norms, and, eventually, constitutional law.32 Put slightly differently, while radical lawyers and high-profile criminal cases play an important role in this story, this Article is fundamentally concerned with how the Sixth Amendment’s meaning was—gradually, unevenly, but definitively—reshaped through several decades of popular struggle, grassroots mobilization, strategic litigation, and social-movement contestation.

This Article proceeds in five parts. Part I is a prelude of sorts, briefly introducing the American jury circa 1925. It surveys the state of the law, the composition of juries in the real world, and the increasingly contested social understandings of what the jury ought to be. During the 1920s, the embattled American labor movement modeled an alternative vision of the jury: in high-profile trials, unions would deploy racially diverse “labor juries” to monitor proceedings from the audience, eventually deliberating and rendering their own verdicts (which often conflicted with those returned by the bourgeois juries of the courts).33 The post-World War I crackdown on Communists, anarchists, and other labor radicals, Part I argues, helped crystallize the importance of public “mass defense” campaigns and heightened the salience of jury-selection practices to those struggling to transform American society. Toward the decade’s end, as Communists came to recognize that white Southerners were “us the criminal justice system to enforce their political economy,”34 the jury box became a central battleground for larger fights over citizenship, white supremacy, and economic inequality.

Part II focuses on the work of the International Labor Defense (ILD), a Communist-backed “mass defense” organization that emerged from the labor battles surveyed in Part I. While the ILD’s efforts on behalf of the Scottsboro Boys in Alabama are well known,35 its other major cases from the era have been overlooked, and the organization’s critical role in repeatedly pressing jury-discrimination claims, including in the Scottsboro case itself, has received no scrutiny whatsoever. Across the country, from Maryland36 to Georgia,37 the ILD established itself as the country’s most militant champion of Black citizens’ rights in the early 1930s, in significant part by scoring key legal victories against the all-white jury.38 Apart from demonstrating that such legal claims could be successfully brought, even in the Deep South, the Communists’ daring assaults on the all-white jury—and their inflammatory denunciations of their rivals—prodded more established groups like the NAACP to begin raising similar challenges, too.39 But in the early years, it was the ILD that forced open a space for jury-discrimination claims in both the courts and the country’s political imagination—often through confrontational “mass defense” tactics that the NAACP eschewed.

Part III turns to the prosecution and ultimate execution of Odell Waller, a Black sharecropper who shot and killed his white landlord in 1940. There are no historical markers commemorating Waller’s case in the town of Gretna, Virginia, today, but at the time, Waller was a household name across America. On the eve of his execution in 1942, Harlem went dark as residents turned out their lights in protest, and twenty thousand supporters rallied to save his life inside Madison Square Garden.40 Behind the scenes, Eleanor Roosevelt was lobbying Justice Frankfurter on Waller’s behalf, and President Franklin D. Roosevelt secretly appealed to Virginia’s governor to spare his life.41 In many ways, the campaign to save Waller resembled the ILD’s efforts described in Part II: Waller was originally defended by a tiny Trotskyite group and later by the more mainstream socialists of the Workers Defense League (WDL); organizers embraced a “mass defense” strategy, litigating their cause both in court and in the streets; and the appeals in the capital case turned on a jury-discrimination claim. But whereas the ILD’s campaigns in the 1930s focused exclusively on race, Odell Waller’s appeals challenged Virginia’s use of “poll-tax juries,” which excluded both Black and poor white citizens. The unprecedented use of the Equal Protection Clause to attack wealth-based legal discrimination thus advanced a more capacious understanding of what it meant for a jury to reflect a “fair cross-section of the community.” And it put a national spotlight on Virginia’s longstanding practice of limiting the political rights of the poor, raising uncomfortable questions about the United States’s commitment to democracy at home as the country geared up to fight totalitarianism abroad.42

On the other side of World War II, jury-selection practices once again played a central role in the country’s highest-profile trial: the 1948-1949 conspiracy prosecution of the leaders of the Communist Party USA (CPUSA). Part IV revisits the Foley Square Trial, today best remembered as a landmark free-speech case in which the Supreme Court upheld the Smith Act against a First Amendment challenge.43 But for its first eight weeks, the prosecution was derailed by the most comprehensive challenge to jury-selection practices ever seen in an American courtroom, going far beyond the type of discrimination claims at issue in Parts II and III. The Communists alleged that the ad hoc method of summoning jurors in the Southern District of New York (SDNY) resulted in the unconstitutional underrepresentation of the “poor” and “propertyless”; manual workers; residents of “low rent” neighborhoods; “Negroes and other racial and national minorities”; women; Communists; and a variety of other groups.44 In effect, the Communists asserted a constitutional right to a jury that was a true cross-section of New York, and they compiled droves of evidence demonstrating how SDNY’s juries fell short of this ideal. Once again, the proponents of the representative jury lost the immediate battle. The Communists’ “attack on the jury system,” however, gave pause to even the most anti-Communist liberals and effectively prefigured the model of random jury selection that would become federal law within two decades’ time.45

Part V concludes by returning to Alabama, thirty years after the Scottsboro Boys’ convictions were vacated on jury-discrimination grounds, to reexamine another landmark case in the ascendance of the representative jury: White v. Crook.46 While the campaigns and litigation examined in Parts II through IV had done a great deal to democratize the jury box, women were still regularly excluded from the “cross-section of the community” that juries were meant to reflect. Gardenia White, a Black female activist in “Bloody” Lowndes County, Alabama, served as lead plaintiff in a 1965 class-action lawsuit that aimed to change that. The litigation was pathbreaking in multiple regards: (1) the lawsuit was the first time that prospective jurors themselves, as opposed to defendants, had sued to vindicate their own rights as jurors, and (2) the plaintiffs advanced the novel argument that the Equal Protection Clause barred discrimination based on race and sex.47 The animating theory—that sex-based discrimination and race-based discrimination were not only analogous, but interrelated forms of subordination48—echoed arguments unsuccessfully advanced by Odell Waller twenty-five years earlier, and for good reason. The Alabama litigation was the brainchild of a queer Black lawyer, Pauli Murray, whose decision to enroll at Howard Law School was prompted by her work as the WDL’s lead field organizer on the Waller campaign.49 In early 1966, a three-judge panel sided with Murray and White; it was the first time a federal court had held that sex-based discrimination violated the Equal Protection Clause.

Linking these cases and campaigns, in addition to a recurring cast of key figures, is the enduring influence of a particular form of grassroots American radical politics—sometimes labeled Popular Frontism—that emerged as a mass social movement in the 1930s.50 More than an ephemeral liberal-left political alliance against European fascism,51 the Popular Front took shape as “a radical social-democratic movement forged around anti-fascism, anti-lynching, and . . . industrial unionism.”52 It emerged in nascent forms in the United States before Moscow abandoned the ultrasectarian posturing of the Soviet Union’s Third Period in the early 1930s,53 and it endured long after the Popular Front nominally ended by 1940.54 For the people who shaped and were shaped by its culture, the Popular Front promoted

support for a multiracial American national identity [cast by] people of color, immigrants and radicals . . . insistence that political and labor movements be grassroots and rank-and-file led . . . and adherence to a revolutionary politics based in multiracial and cross-class campaigns for race, gender, and economic justice, simultaneously.55

And, in many ways, the campaigns and political program of the ILD (discussed in Part II) served not only as “the heart of the political and artistic energies of the proletarian avant-garde” of the 1930s,56 but also provided strategies and an ethos that reverberated in legal fights over the subsequent decades.57 It should come as no surprise, then, that the figures who emerged later in this history had formative political experiences in the jury struggles that preceded them. The roots of the representative jury are found in the democratic and egalitarian soil of this political milieu, which shaped the worldview and lives of so many of this Article’s protagonists.58

The primary focus of this Article is to track how these efforts reshaped the American jury, but it also illuminates how fights over the jury box prefigured and sometimes directly influenced developments in other areas of American law. When Euel Lee’s Communist lawyer persuaded Maryland’s high court to vacate his murder conviction in 1931, for example, Lee successfully argued that the implicit biases of the white judge who compiled the jury lists rendered the process unlawful, decades before such terminology would enter popular usage.59 Thurgood Marshall—who, as a recent law-school graduate, was tangentially involved in the case—would use strikingly similar language fifty-five years later in arguing for the abolition of race-based peremptory strikes in Batson v. Kentucky.60 The jury challenge made by the Communists in the Foley Square Trial essentially anticipated the modern fair-cross-section doctrine that would solidify within two decades’ time. And, as mentioned above, the Waller and White cases both involved groundbreaking attempts to expand the scope of the Equal Protection Clause to classifications based on wealth and sex, respectively. Though largely forgotten today, feminist activists regarded the latter as the “Brown v. Board of Education for women” when it was first issued.61 Far from a backwater, throughout the twentieth century, the law of the jury served as a key battleground for those contesting the subordination of workers, racial minorities, and women. It provided a foundational site of struggle for those who understood all three phenomena as intertwined features of American political economy.

For over a century, the Yale Law Journal has been at the forefront of legal scholarship, sparking conversation and encouraging reflection among scholars and students, as well as practicing lawyers and sitting judges and Justices.