Equal justice in a partisan era

The Supreme Court as recently as June 2023 ordered changes to a state’s congressional district map.  Similarly, in Reynolds v. Sims (1964) the court ordered that state legislative districts must also be of roughly equal population.

Voting rights are clearly an important right.  At a minimum most would agree the Court was right to make states approximately equalize the population of US House districts and the districts of one house of bicameral state legislatures. 

What is also an important right, really a more important right than voting, is the right to life and liberty. The only way someone in the U.S. can lose this right to liberty is by due process of law.  That is, one can lose his liberty only by trial by jury unless the accused requests a bench or judge trial or pleads guilty.

The Fifth Amendment to the Constitution guarantees this right in federal criminal cases and the Fourteenth Amendment guarantees this right in state criminal proceedings. But as is the case that voting rights are watered down by gerrymandering of voting districts, so too is the right to a trial by a jury of one’s peers lost when court districts and the resulting jury pool is 75%+ of one particular political view.

This issue has been around since at least the 1990s and really the entirety of American history. At times jury bias has been racial, at times political and at times religious. The issue of the jury pool is coming to a head now most dramatically because of the Jan 6^th cases, the Trump indictments, the nullification of D.C. juries in the cases brought by special prosecutor Durham and the rise of prosecutorial nullification by highly political prosecutors. This issue of jury pool bias may be made worse as people vote with their feet and move to jurisdictions where their political views are in the majority.

We are at a point in the U.S. that everyone seems to recognize that Republicans cannot get a fair shake in a trial in places like D.C., Manhattan etc.  At the very least, things are more difficult in some jurisdictions compared to others.

Really, Congress and state legislators should act on this problem. Congress should pass a law combining the D.C. circuit with some other circuit at least for purposes of the jury pool, though the Jan 6^th cases suggest that groupthink among judges in a particular courthouse can be a problem too.  Of course, Congress probably won’t act. Congress is not designed to act quickly, but people are having their rights trampled everyday around the U.S.

States also may not act either, as politically the legislators may be fine with one standard of justice in, say, New York County (Manhattan) where the voter registration is about eight to one Democrat, another in Suffolk County (Long Island) where voter registration is about even and a third standard in Hamilton County (upstate) where the voter registration is almost three to one Republican, for example. Such different standards may help incumbents of both parties get reelected, but again, people are losing their liberty every day due to this unequal justice under the law.

So we are back to the courts. Certainly, if one must face a politically biased jury, one’s due process rights are being denied. The Court has already held that exclusion of potential jurors by race denies an accused of due process rights.  Certainly, exclusion of potential jurors by drawing districts so that the jury pool consists only of registered Democrats is equally a denial of due process rights, particularly if one is a Republican.

If there were only a few such cases, then change of venue motions could handle the problem.  Appeals courts could just come down hard on D.C. or other judges who have not granted motions for changes of venue in cases of obviously biased jury pools. But as listed above, there are many high-profile cases in the D.C. venue and D.C. is hardly the only out-of-political-balance jurisdiction in the U.S. An added benefit of more balanced districts is it would be harder to elected nullifying prosecutors in states where these are elected.

The Court needs to step up and defend equal justice under the law. Equal justice and the belief that one will be treated equally under the law is a one of the load-bearing pillars of society. Unequal justice, or even the perception of unequal justice, eats at the foundation of this pillar.

James L. Swofford is a Professor of Economics in the Department of Economics, aFinance and Real Estate at the University of South Alabama.

Image: Pexels, Zachary Caraway