Last year, at the Michigan Association for Justice’s Annual banquet, United State Senator Sheldon Whitehouse gave the following speech. The speech was presented on May 11, 2013 at The Henry, in Dearborn, Michigan during MAJ’s 68th Annual Banquet:
Tonight, I’d like to speak to you about the civil jury. No one knows better than trial advocates about civil juries as an instrument of justice.
But the civil jury is more than an instrument of justice. The civil jury is also a structural element of our American system of government. It is part of our constitutional design of separated powers. This political character of the civil jury is what I want to focus on tonight.
I don’t intend this just as an academic question. You know better than I: the civil jury is under attack, as I’ll discuss further in a minute, and it’s under attack by powerful corporate forces –and by a Court that seems to have fallen under the control of those powerful corporate forces.
We need to marshal all our available arguments in its defense, and as I hope I can show, the institutional role of the civil jury, its structural role in our American system of government, is a powerful argument in its defense. And it is an argument strongly supported by long history and great authorities.
We are in a battle, and we should arm ourselves with this argument. I’ll be fairly brief in summarizing the argument tonight, so as not to overbear your hospitality, but I promise that the more you dig into this argument the more good information you find, and the stronger the case becomes.
Let’s start with some history.
Roots of our jury system can be traced back to twelfth-century England when King Henry II first guaranteed his subjects trial by jury as a common right for certain disputes. It took firm hold, and by the 1760s, Sir William Blackstone extolled the trial by jury as the “glory of English law.”
Blackstone understood the civil jury to be a political institution. He explained its value: [T]he most powerful individual in the state will be cautious of committing any flagrant invasion of another’s right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is ascertained, the law must of course redress it. This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.
You will note that most of the structural checks and balances in our constitution are designed to protect against the concentration and abuse of governmental power; uniquely, the jury is an institutional check against “the most powerful individuals,” against the “encroachments of the more powerful and wealthy citizens.” It’s the institution for ordinary people.
The earliest American settlers well understood the importance of the jury. Juries were established as a right in 1624 in Virginia, in 1628 in the Massachusetts Bay Colony, 1677 in the Colony of West New Jersey, and 1682 in Pennsylvania.
Colonial Americans attacked British efforts to curtail the jury in the 1760s and 1770s, leading up to the Revolution. In response to intrusions on the jury in the notorious Stamp Act, colonists declared that “trial by jury is the inherent and invaluable right of every British subject in these colonies.”
As independence loomed, the jury figured prominently. The 1776 Virginia Declaration of Rights provided: “That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.” And Mr. Jefferson’s very Declaration of Independence included as its grounds the King “depriving us, in many cases, of the benefits of Trial by Jury.”
The drafters of our State Constitutions in the new republic prized that rightful power. Ten states included provisions protecting the civil jury in their early Constitutions or Bills of Rights. The civil jury was a structural element of the American model of government consistent with the Locke and Montesquieu vision of separated powers.
When the original federal Constitution was silent on the civil jury, Americans sounded the alarm. The pamphleteer calling himself “A Democratic Federalist” urged his fellow citizens to “never consent to part with the glorious privilege of trial by jury, but with your lives.”
By August 1788, five of the thirteen ratifying conventions already had demanded greater jury safeguards, and the Bill of Rights was sent to the States with the Seventh Amendment, enshrining the civil jury in our federal Constitution.
James Madison, who once doubted the need for a Bill of Rights, supported the amendment, stating that “[t]rial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre¬existent rights of nature.” When Alexis DeTocqueville wrote his renowned “Democracy in America” half a century later, he agreed, calling the American jury an “institution of government” and “a mode of the sovereignty of the people.”
So we can see that the civil jury was, from its beginnings in England, a mechanism for the people to exercise an element of sovereign power, and to defend themselves against oppression by the powerful and wealthy. It was a flashpoint for colonists in the revolutionary period for exactly this reason; it was explicitly preserved in the Bill of Rights to serve this political function; and it was clearly recognized as such by DeTocqueville and other students of American politics.
Against that historical backdrop, consider the recent Supreme Court decisions that have undermined the civil jury and its role in American society.
These decisions, relating to arbitration, pleading, class actions, and punitive damages, actually do not interpret the Seventh Amendment — indeed, they consistently ignore the Constitution’s civil jury amendment, as they busily make it harder for individuals to get to a civil jury, and harder for the civil jury to play its intended function in our system of government.
Look at arbitration.
The Federal Arbitration Act dates back to 1925, and for a long time, the Supreme Court applied the statute narrowly.
That changed in 2001. The Court expanded arbitration by expanding the Act’s coverage of employees engaged in “interstate commerce.” Then the Court held that arbitrators may even adjudicate whether their arbitration clause is unconscionable. Recently the Court held that mandatory arbitration clauses may prohibit class actions.
The result: more and more cases funneled into business-friendly arbitration, and away from the civil jury.
Look at pleading. Federal Rule of Civil Procedure 8(a) was long understood as providing a simple notice pleading system intended to focus litigation on the merits of a claim.
The Court’s decisions in Twombly and Iqbal departed from this understanding, deciding that a complaint “must state a claim to relief that is plausible on its face.” This made it easier for defendants to use dispositive motions to keep civil plaintiffs away from a jury.
Relatedly, the Roberts Court has made it harder to establish that a class action is appropriate. As a result, injured Americans may be left to pursue relief one by one, effectively preventing cases of large¬scale but low-amount fraud from ever getting before a civil jury.
Last, look at damages. Recent Supreme Court decisions have increasingly limited the civil jury’s traditional authority to impose punitive damages.
In the 1990s, the Court began to impose both procedural and substantive limits on jury awards in state court cases. In 2008, the Court took this concept even further, holding that an award of punitive damages higher than the compensatory damages award would make punitive damages too “unpredictable” for corporations.
Think of it. The judgment of the jury; its role as a mechanism for redress against the powerful; and the historic wisdom of the Founding Fathers, all yielded, to providing corporations “predictability.”
That result, of course, has been the intent of organizations such as the U.S. Chamber of Commerce and its “Institute for Legal Reform.” A corporate-funded “Astroturf” campaign has pressed the fight in local judicial elections, in state and federal legislatures, and in the court of public opinion.
Ask Americans to fill in a blank before the word “jury,” and how many of them would come up with the word “runaway”? Every one who does is a testament to the influence of this campaign.
We have backslid a long way from the popular outcry for jury trial in 1776. One might even wonder whether we, as Americans, have lost our historic understanding of the political function of the civil jury.
We forget our history at our peril. The American system of government, after all, is built on Montesquieu and Locke’s premise that divided government and separated powers are most protective of individual liberty. The civil jury further distributes the authority of the state, vesting citizens with authority to resolve disputes among citizens. And, uniquely, it creates protections for ordinary people not just from abuses by government, but from the encroachments of the wealthy and powerful.
Imagine that you are all alone and unpopular; that the forces of society are arrayed against you. Imagine that your adversary’s lobbyists have the legislature tied in knots and the governor in their pocket. Imagine that the owners of the local press have marshaled public opinion against you.
Under our system of government, one last sanctuary remains: the hard square corners of the jury box stand firm against the tide of influence and money.
That was why DeTocqueville called the jury an “institution of government” and “a mode of the sovereignty of the people.” Not for nothing was the chapter of “Democracy in America” in which he discusses the civil jury entitled: “On What Tempers the Tyranny of the Majority.” Not for nothing did Blackstone stand the jury against “the encroachments of the…powerful and wealthy.”
The powerful will always seek to gain influence over the levers of government. That is the premise of our system of government, but it is also the fact. Look at the efforts of big corporations to seek influence over the legislative and executive branches, through lobbyists and campaign contributions, and now through Super PACs. Not the jury; trying that with a jury would be tampering, a crime.
It appears that powerful and wealthy commercial interests have succeeded at inhibiting the very institution of government designed exactly as a check and balance to counter their power and wealth.
So, what can we do?
First, the Court could incorporate the Seventh Amendment against the states. The civil jury would appear to meet the incorporation doctrine’s judicial test that it be “deeply rooted in this Nation’s history and tradition” and “fundamental to our scheme of ordered liberty.”
The Supreme Court also could be as solicitous of the Seventh Amendment as it is of other amendments.
In the First Amendment context, the Supreme Court has struck down rules that “chill” the exercise of free speech rights. Why not, under the Seventh Amendment, strike down rules that “chill” the ability to proceed to a civil jury?
The Supreme Court has shown great solicitude for the Second Amendment, recently discovering an individual right to bear arms for the purpose of self-defense. Could you imagine the Supreme Court making decisions affecting access to guns, without discussing the Second Amendment? They made decisions limiting access to juries without discussing the Seventh Amendment.
In the Fifth and Sixth Amendment contexts, Miranda warnings inform an individual of his or her legal rights, to avoid unwitting surrender of rights protected by the Constitution. Why not, in the context of the civil jury, prohibit pre-dispute mandatory arbitration clauses without a clear and specific knowing, voluntary waiver?
Congress too can act.
Congress could override most if not all of the Supreme Court’s recent decisions that have undermined the civil jury. Unfortunately, the same power of corporate interests, from which the jury is protected by anti-tampering laws, usually defeats these legislative efforts. The Lilly Ledbetter Act, which related to the civil justice system if not the civil jury, provides some hope for those of us championing this fight, but it will be an uphill slog.
We could do more in Senate confirmations to promote the civil jury’s structural role. Judicial nominees should not be confirmed to the bench thinking that the civil jury is simply an appendage of the court to manage and diminish.
I hope that history will prove that the Court understands the importance of the jury. It’s not headed that way now. The Seventh Amendment is an inconvenient amendment for a Court so often dedicated to the well-being of corporations. But Constitutional text and American history place the civil jury squarely as a political institution within our American system of government.
At our peril, we allow it to wither unheeded and unappreciated. Let’s not make that mistake. Let’s not lose this argument.
Juries aren’t runaway. They are American.