The Jury as a Political Institution: An Internal Perspective

TABLE OF CONTENTS INTRODUCTION I. HISTORICAL CONSIDERATIONS A. Contrasting Senses of the Political B. Hannah Arendt and the Political Nature of the Jury II. THE AMERICAN TRIAL AS A POLITICAL FORUM A. Two Recent Calls for an Increasingly Political Role for the Criminal Jury CONCLUSION INTRODUCTION In this Essay, I will briefly describe some of the more obvious ways in which the jury has been considered a political institution. I will then discuss the senses in which we can understand the term \"political\" in the context of the American jury trial. I will describe the senses in which Hannah Arendt, perhaps the most important political philosopher of the twentieth century, tried to distinguish between \"the political\" and the \"the legal\" and the limitations of any such distinction. I will then turn to the heart of this Essay, a description of the ways in which the American trial, as we actually have it, is a political institution. I argue that attention to our actual linguistic practices at trial reveals the jury trial to be a hybrid institution, with aspects of traditional legal formalism, but one in which the jury is finally asked to make what we may fairly call a political judgment about what is most important in the case. Finally, I will describe two recent important attempts to revive the political dimension of the work of the jury in the context of criminal law. First, I address the nature of the question lawyers ask when we ask whether the jury is a political institution. This sort of question inevitably has both descriptive and normative dimensions. One can describe the actual practices in which lawyers are engaged at trial. Additionally, one can try to determine whether each of those practices is consistent with something like the \"true function\" or the \"legitimate function\" of the jury trial in the American constitutional order. Lawyers\u0027 practices may be consistent or inconsistent with broader philosophical commitments--for example, the lawyer\u0027s preparation of witnesses or his ability to engage in a very minimally constrained \"free narrative\" in his opening statement that defines \"what this case is about\" in a way that appeals to a whole range of norms, including those that may not be embedded in the \"law of rules,\" as Justice Scalia likes to put it. (1) However, I agree with the proposition that those broader commitments should be generally consistent with what John Rawls calls our \"considered convictions of justice,\" (2) the specific determinations often embedded in institutions and practices in which we have the greatest confidence. The relationship between particular practices and broader philosophies is normatively indeterminate, indeed circular. We may modify our practices in light of our broader political philosophy or modify our philosophy by careful attention to our actual practices. As is true at trial itself, one achieves insight into these matters by \"a continuous dialectical tacking between the most local of local detail and the most global of global structure in such a way as to bring both into view simultaneously.\" (3) We can ask in a specifically doctrinal idiom whether we ought to structure our trial practices so as to permit the jury to engage in political deliberation at trial. Or, we can ask that question in a more theoretical and normative idiom, in which case we are best served through some attempt to reach what Rawls calls \"reflective equilibrium,\" a (temporary) balance between our practices and our broader self-understandings. (4) My own inclination is conservative in these matters because I believe that most of the specific practices in which we engage at trial reflect a good deal of inherited wisdom. (5) I. HISTORICAL CONSIDERATIONS Here, I am not focused on making the case for the political nature of the American jury through considerations of constitutional history. The Founding Fathers\u0027 understanding of English history and their experience of the jury trial during the colonial period convinced them that it was a key expression of American political liberty. …