"Red Juries & Blue Juries"

The title of this post is the title of this new article authored by Richard Lorren Jolly available via SSRN. Here is its abstract:

The United States is a democracy divided.  Perhaps not since the Civil War have Americans been so deeply and bitterly at odds with one another.  This polarization stretches beyond mere policy disagreements and has become a type of identity that studies show is for many of greater importance than race, gender, and religious faith.  The result of this division has been a loss of confidence across the nation’s institutions, with potentially dire implications.  This Article is the first to examine the jury as an institution in light of partisan hyperpolarization.  It reviews the history and underlying purposes of the jury as a democratic body, stressing that political biases are an inherent — and at times desirable — part of the institution.  But, in drawing on extensive empirical socio-psychological scholarship, it demonstrates that today’s polarization is so extreme that fresh approaches are necessary.  In order to ensure procedural and substantive legitimacy, courts must be diligent in seeking partisan representation in venires and policing partisan partiality among jurors in all cases, not just those that are explicitly political.  Critically, it concludes that potential jurors should not be excluded solely on the basis of political affiliation or past votes cast.  The jury as an institution demands the voices of many in order to fulfill its role as the democratic bench of the judiciary.