Sonia Sotomayor Reflects on Civil Jury Trials, Arguing They are Uniquely Empowering, Unifying, and Just

As the Senate considers the qualifications of a new prospective Supreme Court justice (after the GOP stonewalled Obama’s final nominee), we’re looking back a year to when NYU’s Civil Jury Project held a discussion with Supreme Court Associate Justice Sonia Sotomayor. On February 8, 2016, the Project held a forum titled, “Will Juries Go the Way of Powdered Wigs? The Seventh Amendment and the Modern World.”

Sotomayor_and_SussmanThe Civil Jury Project launched that same year to examine the causes and consequences of the rapid decline in the use of of jury trials in civil cases, as well as what solutions might begin to mitigate those effects. Justice Sotomayor is uniquely qualified to talk on the subject, as she is the only member of the Supreme Court who has both presided over a civil jury trial and conducted one as a trial lawyer. The conversation was led by trial lawyer Stephen Susman, who was heralded as one of the nation’s Top 10 litigators by the National Law Journal in 2006, among other accolades.

Justice Sotomayor began the talk by describing jury service and voting as two aspects of American citizenship and democracy that are uniquely empowering relative to all others. Jury service, she explained, is

“the one responsibility of citizenship that no one else can actually do… everybody pays taxes whether you’re a citizen or not, people serve in the military whether they’re citizens or not… but this is the one activity where you’re asked to serve and actually come to a decision on the behalf of the society that we represent.”

Furthermore, the process of deliberating and engaging over issues often of extreme consequence for the lives of fellow community members can bring otherwise socially disparate and separate individuals together:

“You talk to jurors, many of them become friends… there is something about that process that is both engaging and self-fulfilling. To be a responsible person, to come to a decision after you’ve looked at all sides of an issue… we often don’t make decisions that way… and this is a way of forcing people to think about how useful that collaborative effort can be.”

The conversation then moved toward the decline in civil jury trials; for some context, in 1990 there were 4765 civil trials, whereas in 2015 there were only 1882 civil jury trials, a decline of 60.5%. Justice Sotomayor argued that the reason to lament the decline could best be derived from an understanding of why the founding fathers had a desire to protect the civil jury system in the first place:

“Read about the seventh amendment, and read about what motivated our founding fathers to think that it was an important protection of a sense of liberty… I think that they understood, and I think we should understand, that the jury is the front line of protecting the society and its liberties.”

She also argued that juries can often reach decisions that are overwhelmingly more just and in the community’s interest, but which otherwise would not be reached. She made this point while discussing the relatively-unknown power of “jury nullification,” the history and importance of which we touched on in a November blog post here:

“Think about what juries did during the Civil Rights movement. If it weren’t for jury nullification, we would have many civil rights individuals who would be convicted felons, or otherwise, for things that today we think are protected by the first amendment.”

In the last segment of the talk, the discussion moved to how the civil jury process could be revitalized . Susman asked if jury selection could occur over the Internet, rather than through a process that forces potential jurors to spend one or two days in the courthouse:

“I think what that misses is the dynamic that occurs among venire people [those summoned to the courthouse], in the discussions that go on in the group. People will say things in the process of open court that other jurors may not have thought about but begin to consider because its been stated openly… you would lose something very valuable if you [conducted jury selection in that manner].”

In the absence of such a change, Justice Sotomayor argued that jury service could be made more attractive by framing jury service in a manner that properly emphasizes the necessary and unique role that jury trials play in protecting and furthering the public good: Sotomayor has personally found the most success by “explaining to jurors the importance of the process, [as well as] their individual importance in being a part of the process.”

 

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