A Circular Judge-Made “Law”

A jury can’t deliberate impartially and independently if its deliberations are going to be overseen by the presiding judge or any other government representative.  Such government oversight smacks of Bushel.  Yet that’s what the Supreme Court has decided must be in certain cases.

The Supreme Court on Monday ruled courts must review typically secret jury deliberations when a juror relies on racial or ethnic stereotypes to convict a defendant.

The 5-3 opinion by Justice Anthony Kennedy found the Constitution’s call for a colorblind justice system outweighed traditional interests in promoting robust jury deliberations and protecting verdicts from challenge.

In an all too typical case of lawmaking from the Bench, Kennedy wrote

A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts….

And so, with his opinion, Kennedy usurped the authority of We the People and legislated on his own (lack of) authority.  It may be that such a statute, even an Amendment to our Constitution, is necessary, but that’s a political decision, and so it’s exclusively for us to decide, not a lone judge (or five lone judges in the present case).

Note that Kennedy’s “constitutional rule” is not, in itself, a direct attempt to amend our Constitution or otherwise to legislate.  It is, instead, a backdoor attempt, by creating a judicial rule that directs how the Constitution or a State’s law must be applied from outside of the plain text of the thing.

Aside from that, in order to legitimize (arguendo) such a penetration of the secrecy of jury deliberations, the existence of racial bias must first be shown.  Yet how that bias can be shown without penetration the cloak of secrecy has been elided by the five justices.  Kennedy centered his new rule on a juror in the present case voluntarily speaking up, but this is a thin reed, indeed.  Not all jurors will come forward, and of those that do, not all can be believed.  Especially with the former situation extant, under Kennedy’s rule there no longer can be equal protection under law—only “protection” when it suits a juror, and hopefully a juror with no axe to grind.

No, the answer is a proactive one, and it’s one that already exists: pre-trial juror selection.  A suitably qualified lawyer—and so are they all, all qualified lawyers—can tease out bias in a juror while the juror still is only prospective, and exclude him.

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