IN recently ruling out gender as a factor in jury selection, the United States Supreme Court delighted women's groups across America. And yet what is most interesting about this case is not what the court said, but what it did not say.
Once again the court had an opportunity to extend the full protection of the 14th Amendment to women, but once again it chose not to do so. Curiously, on its face, the decision looks as if the court had made gender discrimination coequal to racial discrimination, but it did not. The court did say that gender, like race, may no longer be used by prosecutors or defense attorneys in their peremptory challenges (made without an explicit reason) to strike a potential juror from a trial.
But the ruling was limited because it did not elevate discrimination against women to the high standard of "strict scrutiny," which the court has set forth for race.
Generally, the court has used two different standards to determine whether a law has deprived either an individual or a particular group of the equal protection of the law, as stated in the 14th Amendment.
The older of these is the "rational basis test," which states that if the state can show that the law furthers a "legitimate" governmental interest in the deprivation of equal protection, then the court presumes the law to be constitutional. Thus, for example, the draft may be reserved for young men of a particular age group (hence discriminating against women and, indeed, some men who are both too young and too old).
The second standard is the more rigid, more difficult to meet "strict scrutiny test," which has grown to apply to discrimination against minorities, especially blacks.
The court began to develop the strict scrutiny test over 50 years ago when Justice Harlan Fiske Stone suggested in a footnote in an obscure case that "prejudices against discrete and insular minorities may be a special condition . . . which may call for a correspondingly more-searching judicial inquiry." Although he did not use the term "strict scrutiny," Justice Stone's meaning was clear: The court would subject discrimination on the basis of race to a higher standard than the rational basis test.
In 1971, the court developed a new standard, so-called "heightened scrutiny," which was designed to assist women in discrimination cases when such discrimination resulted from governmental policies. In the decision announced on April 19, retiring Justice Harry Blackmun was quite explicit that his opinion was narrow and would not extend the equal protection clause's "strict scrutiny" test to women. "We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality," he said.
"Discrimination in jury selection whether based on race or on gender causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process."
Neither his opinion nor the concurrences said anything about strict scrutiny or suspect classes. Justice Blackmun explicitly said that the court did not need to determine "whether women or racial minorities have suffered more" for the majority to conclude that prosecutors may no longer exclude someone from a jury on the basis of gender. This limited decision barely extended the cause of women's rights.
Jack Fruchtman Jr. teaches constitutional law and directs the prelaw program at Towson State University.