There is a longstanding debate in democratic theory between those who seek to justify democracy insofar as it is instrumentally valuable to the attainment of some good ends such as avoiding famine (Sen Reference Sen1999) or protecting fundamental rights (Arneson Reference Arneson, Dowding, Goodin and Pateman2004) and those who believe democracy should be justified by reference to noninstrumental (“intrinsic”) values [e.g., of equal respect for citizens (Waldron Reference Waldron1999)]. In recent years, a particular instrumental justification for democracy has become increasingly salient: so-called epistemic democracy. Briefly, epistemic democracy aims to justify some, if not all, features of a democratic regime by reference to its capacity to yield correct outcomes.Footnote 1 In general, epistemic democrats also tend to justify procedures instrumentally: Democratic procedures are justified just in case they help us to produce fallibly reliable outcomes.Footnote 2
The objections to this basic approach may seem obvious. Are there independent standards of correctness or truth in the domain of democratic decision-making; i.e., are most political questions truth-apt? Do we run afoul of the requirements of liberal neutrality even by presupposing that right answers to political questions exist? Why should we have confidence that democratic procedures would reliably produce anything like just outcomes? An additional complication derives from the fact that such debates over justification have typically focused on a particular set of institutions: voters, legislatures, and courts. Epistemic democrats find themselves defending, in the face of formidable real-world challenges, the basic competence of voters and the epistemic value of contemporary legislatures. In so doing, they find themselves mired in disputes about the proper exercise of the vote (for self-interested purposes or to seek a common good), the appropriate aims of representative assemblies (to enact their constituents’ expressed preferences, to pursue their constituents’ interests, or to identify the common good), and the value of constitutional courts in protecting rights—including those constitutive of the public deliberation to which epistemic democrats tend to be committed—against the risks of majoritarian decision-making.
As a means of circumventing these objections, this paper examines a democratic institution for which the epistemic (or broadly instrumental) justification should be generally uncontroversial: the jury. There are a number of adjudicative institutions that could potentially be authoritative, empowered to yield binding directives: judges, either individual or as a panel; special juries composed of highly educated members; or lay juries, randomly chosen, among them. Even those quite skeptical about the claim that politics can ever aim at anything like correctness or even reasoned agreement are likely to accept that the justification for preferring juries over judges must derive at least in part from a justified belief that jury trials are likely to yield correct or just outcomes. The argument of this paper is that the epistemic justification of the jury rests on egalitarian presuppositions, and it is on the basis of these presuppositions that prospective jurors acquire interests in equal respect for their judgment. My suggestion in the conclusion to this paper is that this justificatory approach, reconciling instrumental aims with claims to respect, may also justify other democratic institutions (including universal suffrage).
Why would we think the jury could shed light on the justification of democratic institutions more generally? One important reason is historical; since ancient Athens, voting (as a member of an assembly, or, later, for representatives) and judging as jurors have constituted the two fundamental activities of democratic citizens. These rights frequently emerged in tandem, from the eligibility of the “forty-shilling freeholder” in medieval England to vote and to serve as a juror (Hirst Reference Hirst1975, 37); to the French Constituent Assembly's debates over the role of citizens as electors and jurors; to the long history of United States constitutional jurisprudence linking voting rights under the Fourteenth, Fifteenth, and Nineteenth Amendments; to the right to serve as a juror. A second, even more significant reason is the importance of the judgments rendered by juries. If the exercise of any political power requires justification, then justifying the power of lay citizens to have their judgments coercively enforced by the state (through deprivations of liberty and even life) would seem to be paramount.
To be sure, epistemic democrats often turn to the jury as a locus for their arguments.Footnote 3 Notably, they have drawn inspiration from John Rawls's account of imperfect procedural justice, illustrated in Theory of Justice by reference to a criminal trial, in which there is an independent criterion for a correct outcome, but the procedure only fallibly achieves it (Rawls Reference Rawls1971, 85–86). David Estlund's influential model of epistemic proceduralism holds that both jury verdicts and democratic laws are “legitimate and authoritative because they are produced by a procedure with a tendency to make correct decisions” (Estlund Reference Estlund2008, 8). Jury verdicts are justified on this model by having been produced by trials designed to yield just outcomes; the jury is instrumentally valuable insofar as it performs this task reliably. At some level of fallibility—quite high, on Estlund's account, as reliability only means “better than random”—the jury should no longer be considered legitimate. Similarly, democratic procedures are instrumentally valuable insofar as they (fallibly) yield just outcomes, and, similarly, if they systematically fail to do so, then these outcomes are no longer justified.
In this paper, I concede to epistemic proceduralists the following claim: The jury itself is justified insofar as it is at least as likely to yield just verdicts as any alternative institution.Footnote 4 (The standard “at least as likely” reflects the plausible view that as long as we did not sacrifice the instrumental value of attaining just verdicts, we might think that there would be other good, nonoutcome based—for example, educative—reasons for situating the responsibility with laypersons.) If we had good reason to believe that juries were less likely than competing institutions (most obviously, professional judges) to produce just verdicts, then we would also have good reason to argue that the jury was no longer justified, and we should eliminate the jury in favor of that superior institution. For epistemic proceduralists, the instrumental value of the jury is both necessary and sufficient for it to be justified as the adjudicative institution of choice; the value of the right to serve on a jury would seem, at least, to be purely derivative or secondary.
Why would we have good reason to believe that juries are at least as reliable as professional judges in yielding just verdicts, that is, what grounds the concession to epistemic proceduralists? There are no perfect means by which we could independently assess the reliability of juries versus judges,Footnote 5 and so such beliefs must be driven in part by our sense of their historical performance and by conjectural considerations of the relative merits of the agents and procedures comprising jury or bench trials. My first aim will be to try to sketch the grounds on which lay citizens might be in at least as good an epistemic position in the role of fact-finders as professional judges. The best explanations—and certainly the most salient, historically—rest on the role of juries as forming judgments on the basis of community knowledge, supporting a defense of lay judgment as hierarchically equal (with elites),Footnote 6 and providing a view of jurors as local experts. The scope of those possessing such expertise and forming judgments has, of course, varied. In the United States and in England, the right to serve as a juror has historically been attached to vote eligibility (subject to certain constraints), and selection within the pool is typically by lot. The instantiation of horizontal equality—via near-universal eligibility and the lot—serves the instrumental aim of a fair trial (through cross-sectional juries) but also reflects a presumption of equal competence. A crucial claim of this paper is that equal eligibility (supported by the presumption of competence) is not a side constraint on the justification of epistemic procedures but a condition of the jury's epistemic value: That is, the jury's ability to achieve just verdicts derives from its dual egalitarianism. However, once we hold that just verdicts derive from equal participation by laypersons, community members acquire interests in being recognized as competent to serve as jurors, which I characterize as interests in epistemic respect.
I defend an account of the relationship between the instrumental, or outcome-based, justification of the jury and the respect-based value of eligibility for the jury, while acknowledging the possibility of trade-offs between just outcomes and equal respect for citizens’ judgment. Yet in many instances, this trade-off between just verdicts and respect-based considerations will be illusory; the probability of just verdicts would be improved by institutional reforms generated by concerns about respectful treatment of prospective jurors. In this light, I take up questions of the scope of juror inclusion and the grounds for exclusion; I then turn to juror impeachment—the permissibility of inquiry into jury deliberations on grounds of suspected racial bias—recently raised in Peña-Rodriguez v. Colorado (2017) to raise some concerns about the Supreme Court's decision for the future of the jury. Finally, I suggest that the justification of the jury has wider implications for the justification of other democratic institutions, notably universal suffrage: We ascribe decision-making responsibility to ordinary citizens because we believe that they are epistemically well positioned to judge certain questions, which in turn generates moral claims on the part of such citizens—and those who seek to be included—to be treated with equal respect as judges.Footnote 7
HIERARCHICAL EGALITARIANISM
The epistemic or instrumental defense of the jury rests on its capacity to render just verdicts; hierarchical egalitarianism reflects the view that juries are at least as competent as judges in this task. Why would we believe that laypersons possessed this ability? Although of course an account of the development of the criminal and civil jury cannot be provided in this (or any single) work, the local expertise possessed by ordinary citizens rather than by—or at least not exclusively by—elites has historically provided a central justification for the jury. The nature of this knowledge has varied over time and has both shaped, and been reflected by, the scope of tasks assigned to the jury. But, broadly speaking, community knowledge, which was local, tacit, and informal in nature, has constituted the most salient justification for tasking jurors with judgment, beginning at least in the medieval and early modern period. Community knowledge should be distinguished further between information relevant to a case and prevailing norms that ought to guide the litigants’ actions and serve as a basis for judgment. The case for the jury has sometimes also rested on a third basis for the claim that ordinary citizens have a form of expertise: common-sense morality.
The earliest English juries were inquest juries, used most notably to provide information about local assets and land tenures in King William's creation of the Domesday Book of 1086 (Masschaele Reference Masschaele2008). From the medieval through the early modern period, the English jury—both criminal and civil—was self-informing, in the sense that jurors on summoning sought to gather information relevant to the facts of the case and the reputations of the litigants before trial. In the words of legal historian John Langbein, at least through the thirteenth century, jurors “came to court more to speak than to listen” (Langbein Reference Langbein2003). Jurors may have learned from trial, but they came to court with a great deal of knowledge.
Although self-informing juries scarcely endured into the fourteenth century, the logic of vicinage—selecting jurors from the local community—remains in place, in part because certain forms of contextual information may help to generate just verdicts in an adversarial system of justice. For instance, the 1999 trial of four New York City police officers who shot Amadou Diallo, an unarmed Guinean immigrant, was relocated to Albany County from Bronx County after the defendants argued that a change in venue was necessary to ensure a fair trial, due to prejudicial pretrial publicity. Critics of the venue change claimed that Albany County jurors unfamiliar with the Bronx would have been more likely to accept the officers’ claim that they reasonably believed their lives were in danger. Unlike Bronx County residents, Albany County residents would not have been able to contextualize the officers’ claims on the basis of their own sense of security in Diallo's neighborhood, relying instead purely on testimony and their prior assumptions about safety in the Bronx in the late 1990s (Engel Reference Engel2000).
The second form of community knowledge—local beliefs about norms, standards, and practices—is more significant in the contemporary era, though it, too, dates at least to the medieval era. Jurors in medieval France were tasked with verifying custom in royal courts, as neither the king nor his justices had unmediated access to these practices. In appeals to false judgment, royal courts would summon juries to prove the regional custom in the enquête par turbe (Kuskowski Reference Kuskowski and Kaeuper2013, 107–108); juries in lower courts had the authority to define the local custom. One salient contemporary example of the use of the jury to identify and apply community standards is in obscenity trials in the United States. The first prong of the Miller text, developed in Miller v. California (1973), asks whether “the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.” (413 U.S. 15, at 24) In Justice Warren Burger's majority opinion, the jury should “measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community”: The jury, in this case, was instructed to “apply ‘contemporary community standards of the State of California’” rather than “hypothetical” national standards (413 U.S. 15, at 31). In Justice Burger's words, “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City” (413 U.S. 15, at 32).
This type of knowledge is closely linked to, yet distinguishable from, the third category, common-sense morality, which supports the claim of ordinary citizens to render judgment. A significant formulation of this view dates to the French Revolution. Deputies at the Constituent Assembly argued that laypersons were uniquely qualified to judge on the basis of “moral proofs,” unlike judges, whose judgments were distorted by the requirements of legal proofs and their learned status. In the formulation of Adrien Duport (rapporteur for the law on the jury and a former judge of the parlement of Paris), “[U]nlike judges [jurors] are not obliged . . . to decide as they are supposed to see things rather than as they actually see them; to go against their conscience and instead follow the false and absurd rules of probability” (Donovan Reference Donovan2010, 30). In a more contemporary setting, Justice Byron R. White held that the U.S. Constitution under the Fourteenth Amendment secures the right to a jury trial for state prosecutions of serious criminal cases. In White's words, “If the defendant preferred the common sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it” (391 U.S., at 156).
Today, arguments from common-sense morality are often anchored in considerations of community standards. When the jury is asked to draw on their moral sense in judgment, they often do so by considering how “average” members of the community would respond: The argument in Miller is explicitly not that citizens should look within to ascertain whether they find the material immoral but to prevailing norms. The jury is asked whether the “‘average person, applying community standards’” would find it immoral so as to be certain that “it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one” (413 U.S. 15, at 33). Another deployment of common-sense morality arises in judging the tort of intentional infliction of emotional distress (IIED). In considering a claim of IIED, a jury is tasked with determining whether the defendant's conduct was “beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community,” and that the recitation of facts to an average member of the community should lead the person to exclaim, “Outrageous!”Footnote 8
The basic historical argument, then, is that the power of juries derived from their special access to some forms of knowledge, on the basis of which they could render judgments different from, and potentially superior to, those rendered by elite judges. This is the hierarchically egalitarian claim on behalf of the jury: Laypersons are at least as good as judges at making judgments of facts (rather than of law) and may be superior in competence, because of their non-elite status. This argument is strictly instrumental and indeed epistocratic: The jury's authority to render verdicts derives strictly from its expertise in these domains (again, knowledge of contextual facts, knowledge of social norms, and common-sense morality). Of course, jurors’ access to certain types of information may also affect their impartiality; indeed, the adversarial system may encourage counsel to seek jurors whose experiences and information will make them more likely to view the evidence presented at trial in a favorable light. This may be especially problematic if the two sides possess unequal resources. But whereas an inquisitorial criminal procedure deploys the resources of the state to investigate and establish the truth, juries in the adversarial system, as in the United States, evaluate the competing trial evidence and rely (if implicitly) on their own tacit knowledge to reach verdicts. As we will see in a moment, this also suggests that the ability of the jury to achieve its instrumental value derives in part from its diversity: Such diversity enables jurors in deliberations to contest claims that may rest on racially or otherwise biased accounts of contextual facts or prevailing social norms or common-sense morality norms.
HORIZONTAL EGALITARIANISM
I have focused so far on the basis of the claim that ordinary citizens have to possess the knowledge and judgment necessary to serve as fact-finders, relative to the claim of elite judges. Having held that ordinary citizens possess local expertise, how should we delimit the pool of those eligible to serve, and how should we select jurors from within this pool? The scope of eligibility has varied depending on the needs of the Crown or the state; the use of women on juries of matrons to determine the physical state of an accused woman in medieval England did not, for instance, track or immediately usher in any wider extension of citizen rights. The selective inclusion of women was purely and narrowly instrumental, reflecting no deeper account of, or commitment to, equal respect. Similarly, although today jury eligibility typically tracks eligibility to vote—indeed, jury pools often derive from voter registration lists—the right to serve on a jury was hard-won and driven in essential ways by instrumental considerations, that is, the requirement of a “fair cross-section” to ensure just verdicts.
Two U.S. Supreme Court cases characterize the instrumental justification for universal eligibility; they address, respectively, women and African Americans on juries. The first is Taylor v. Louisiana (1975), a case striking down an article of the Louisiana state constitution that specified that a woman could only be selected for jury service if she had submitted a written declaration of the desire to serve. The Court held that the systematic exclusion of women violated the requirement that “the selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial” (419 U.S. 522, at 528). The second is Batson v. Kentucky (1986), which held a prosecutor's use of a peremptory challenge to remove all four black persons from the petit jury denied a black defendant equal protection. The unequal treatment of women or blacks as prospective jurors is harmful to the interests of the defendant in a fair trial; in this way, it inhibits the instrumental value of the jury in yielding just outcomes.
Yet, beginning with Strauder v. West Virginia (1880), a defense of the instrumental value of inclusion in the service of fair trials has been accompanied by a claim that eligibility for jury service confers status on its holder. Ineligibility on the grounds of invidious distinctions constitutes a form of harm, which we might construe as dignitarian. Strauder does hold that a jury in which the state has excluded all those of the defendant's race is a denial of equal protection; the protection secured by a right to a trial by jury has as a “very essential part” a jury composed of the “peers or equals of the person whose rights it is selected or summoned to determine.” (100 U.S. 303, at 308) But the majority opinion in Strauder, written by Justice William Strong, also argues that the West Virginia statute restricting jury service to white males clearly denied to the jurors themselves equal protection of the laws and constituted a form of discrimination.
The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law as jurors because of their color, though they are citizens and may be in other respects fully qualified, is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure to all others (100 U.S. 303, at 308).Footnote 9
In Neal v. Delaware (1881), the Supreme Court found that a statute that specified that the qualifications for jurors tracked the qualifications for voters must incorporate the Fifteenth Amendment not only in its application to voters but to jurors. In failing to do so, Justice Harlan wrote, “the State is to be regarded . . . as denying to the colored race within its limits, to this day, the right, upon equal terms with the white race, to participate as jurors in the administration of justice” (103 U.S. 370, at 389). Finally, in Batson, Justice Powell's majority opinion specifically noted that racial discrimination in jury selection harmed not only the accused but the excluded juror, whose “[c]ompetence to serve as a juror ultimately depends on an assessment of individual qualifications and ability to consider evidence presented at a trial. . . . A person's race simply ‘is unrelated to his fitness as a juror.’” Beyond the defendant and the excluded juror, the Court held that the harm of discrimination in jury selection extends to “touch the entire community,” as “[s]election procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice” (476 U.S. 79, at 87).
Note, then, the tight link between the instrumental and the intrinsic defense of eligibility for service. Excluding jurors via peremptory challenges on account of race (under Batson) and gender [under J.E.B. v. Alabama, 511 US. 127 (1994)] causes instrumental harm to the pursuit of a fair and impartial jury trial, but denying someone the right to serve on a jury on the grounds of invidious distinctions—race or sex, in particular—also constitutes disrespect.
Similarly, the use of lot promotes the instrumental value of trials by securing the “cross-sectional ideal.” In federal courts, the Jury Selection and Service Act (JSSA) of 1968 grants litigants the right to “grand and petit juries selected at random from a fair cross-section of the community in the district or division where the court convenes.” The three-pronged test in Duren v. Missouri (1979), holds that to establish a prima facie violation of the fair cross-section requirement under the Sixth Amendment: (1) the allegedly excluded group is “distinctive” in the community, (2) the representation of that group in the “venires from which trial courts select juries is not fair and representative in relation to the number of such persons in the community,” and (3) that the “underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (439 U.S. 357, at 364) The second prong of this test establishes that the selection of venire members must be random, so that even if a given venire is not representative, it will be so over time. Although a defendant is not guaranteed to have a particular group represented on any petit jury, the defendant is entitled to the “fair and undistorted chance” that such a group will be, as in McCray v. Abrams (750 F. 2d 1113, at 1129).
But once we consider the institution that the JSSA was introduced to replace, the value of random selection in securing equal respect also becomes clear: Until 1960, federal courts used “blue-ribbon juries,” in which jury commissioners solicited names of “men of recognized intelligence and probity” from key men in the community. As Bernard Manin has argued, the lot gives citizens an equal probability of obtaining an opportunity (in his example, the Athenian allocation of offices), regardless of expertise (Manin Reference Manin1997). In promoting lotteries rather than elections, Alexander Guerrero has argued that the former ensures the condition of equal chance of political power, without commitment to the view that some are better able to rule than others (Guerrero Reference Guerrero2014, 169). One way to understand how this happens is through the “sanitizing” function of lotteries, precluding us from relying on reasons (Stone Reference Stone2011). The lottery prevents us from relying on bad reasons, such as racism or sexism, for selecting jurors. But it also disables us from relying on good reasons, such as demonstrated probity. It may be that we think we cannot have the latter without risk of the former, so we introduce the lottery—the probability of equal selection—as a second-order means of preventing ourselves from intentionally or inadvertently introducing biases into the pool. But the implication of the lottery for jury selection goes farther: We thereby institutionalize a presumption (defeasible for cause) that any citizen will be competent to serve. This is how random selection instantiates equal respect.
There is more to be said about the presumption of competence, but first we require greater precision as to how horizontal equality—universal inclusion and sortition—instantiates such respect, and how, as a result, eligibility for jury service is a matter of respect for citizens, apart from its value in producing just outcomes. Miranda Fricker's work on epistemic injustice, which she considers an “umbrella concept” under which new phenomena may be subsumed, helps to illuminate the stakes (Fricker Reference Fricker2007). Fricker identifies two main forms of discriminatory epistemic injustice, “testimonial injustice” and “hermeneutical injustice.” The former obtains when a speaker is taken to be less credible in providing testimony by virtue of her identity (qua member of a marginalized group); the second occurs when members of marginalized group “participate unequally in the practices through which social meanings are generated” (Fricker Reference Fricker2007, 6). The basic claim is that epistemic injustice harms a person specifically in her capacity as an epistemic subject, whether as a “giver of knowledge” or in her “capacity for social understanding (an unjust deficit of intelligibility)” (Fricker Reference Fricker2013, 1320). Similarly, insofar as women or African Americans are excluded from jury service by dint of their alleged incompetence to render judgment, they are harmed in their capacity as epistemic subjects. The particular harm constitutes a sort of “judgmental injustice,” which may incorporate both a form of testimonial injustice (their ability to be taken seriously as providers of community knowledge) and a form of hermeneutical injustice (their ability to participate in the social practices of fact-finding).
What type of epistemic justice, then, does universal eligibility and sortition instantiate? This is a harder question. Elizabeth Anderson affirms the significance of epistemic justice as a virtue of social institutions, requiring structural remedies to rectify; indeed, she writes that remedies designed to check the effects of prejudice might be offered to promote testimonial justice in settings such as criminal and civil trials (Anderson Reference Anderson2012, 168). Anderson argues that the “virtue of epistemic justice for institutions is otherwise known as epistemic democracy: universal participation on terms of equality of all inquirers” (Anderson Reference Anderson2012, 172). Following Anderson, the jury's ability to instantiate epistemic justice entails treating citizens as presumptively competent to render judgment; universal eligibility and random selection both constitute epistemically just institutions on this account. Universal eligibility reflects the view that no group of adult citizens should be deemed prima facie incompetent to render judgment. Although this should be uncontroversial with respect to race and gender, two categories of persons—those with felony convictions and those with cognitive disabilities—constitute harder cases, to which we shall return shortly.
The lottery prevents us from relying on bad reasons but also on what we might believe to be good reasons: “recognized intelligence and probity.” Yet, as the discussion of hierarchical equality suggested, ordinary citizens possess the types of community knowledge necessary for fact-finding, even if their lack of expertise would disqualify them from making determinations of law. The lottery's ability to achieve the instrumental goal of just verdicts would be undermined if we believed that it picked out the incompetent just as readily as the competent.Footnote 10 Given universal eligibility—at least among adult, English-speaking citizens without serious cognitive disabilities or felony convictions—the justifiability of the lottery requires us to presume that ordinary citizens are competent to judge. This claim to presumptively equal competence is important, because it both is a condition of the ability of juries to achieve just verdicts and of epistemic respect for citizens.
THE PRESUMPTION OF EQUAL COMPETENCE
The presumption of equal competence constitutes essential support for the equal eligibility of citizens to serve on juries. Three questions arise: First, what faculty or capability is “competence” intended to pick out; second, why ought it be presumed to be equal; and, third, how wide is the scope of its applicability? First, competence as a juror requires the ability to understand, draw inferences, and assimilate evidence presented at trial and to deliberate to judgment as part of a group. It is possible that such competence could be secured through the assistance of another (e.g., a sign language interpreter designed to enable a juror to understand testimony and to participate in deliberations); as will be discussed shortly, these questions become most challenging when we consider eligibility among the cognitively disabled. For the purposes here, it should suffice to suggest only that there is some threshold of abilities, subject to specification, below which we might have good reason to believe that a person would not be able to understand evidence or the instructions of the judge or participate effectively in deliberations. Above this threshold, citizens are deemed competent, though people's capacities to analyze conflicting testimony or to argue persuasively during deliberations will surely vary.
But if people's capacities empirically do vary, why should we treat them as if they are equally competent rather than merely sufficiently competent? One reason is that the deflationary language of “sufficiency” may too readily encourage efforts at identifying those with special qualifications; why accept the merely sufficient when we can try to pick out the excellent? Without the presumption of equal competence, we may be tempted to try to select for those apparently exceeding the sufficiency threshold, relying on heuristics such as advanced professional degrees as a proxy for judgment. Note, however, that as the hierarchical egalitarian account suggested, it is the very ordinariness of their members on which the jury's claim to reliability has rested. Insofar as educational attainment both reflects, and is partially constitutive of, socioeconomic status, jurors possessing college educations may be systematically biased in their judgments of community standards or common-sense morality, for instance. Similarly, we may fear that education or performance on any test designed to identify competence would correlate with wealth or with membership in privileged racial or ethnic groups. In these cases, the failure to presume equal competence may lead to the selection of less diverse juries and in turn to less-just outcomes.Footnote 11
Yet there are other reasons apart from just outcomes to presume equal competence. These are respect-based considerations for the prospective jurors. As suggested above, competence is a range property; it is binary in that a person is either competent or not. But it is ascribed in virtue of the capacities on which it supervenes, in this case, the ability to form good judgments through a deliberative process. Drawing on Rawls, Ian Carter (Reference Carter2011) adopts this strategy for moral personality (personhood), which supervenes on a number of agential capacities (possessed unequally). He then argues that “opacity respect” for persons (in possession of this range property) provides independent moral grounds for a commitment to treating persons as equals. In the public sphere, on his account, we relate to our fellow citizens simply as agents, respecting their “outward dignity” as bearers of political entitlements. On this account, we adopt evaluative abstinence—we avoid looking into the varying capacities to guide how we should treat people and instead look solely at the range property. Following Carter, we might hold that respect for citizens—in this case, prospective jurors—entails avoiding prying into their cognitive and emotional strengths and weaknesses. Prospective jurors have a claim to a form of opacity respect, which entails being treated as if equally competent to judge as part of a jury trial.
But what of prospective jurors deemed incompetent? One might argue that on this account, the violation of respect is doubled, because not only is one deemed to lack the relevant property (one is incompetent), but also the determination has been made by prying into these subvening properties. This constitutes a reason to be especially concerned about the process by which such determinations are made: to reduce affronts to the dignity of members through public rather than private scrutiny into the nature of disabilities, for instance. Moreover, there are circumstances in which inquiries into subvening properties, and making a particular determination of competence, may be appropriate and consistent with respect for jurors. For instance, a blind person may be competent to serve on a complex civil trial involving the oral presentation of technical information but incompetent to serve on a simple trial for drug possession in which the alleged concealment of contraband, requiring close visual scrutiny of evidence, is in dispute. Although exclusion in this latter case does not entail worrisome disrespect, the activity of probing into citizens’ capacities is perilous, if sometimes warranted, given that we might reasonably believe that a criminal defendant's interest in just outcomes would otherwise be threatened.
The liability of the presumption of equal competence is its intuitive implausibility: Why should we think our institutions ought to reflect values that we believe to be false? At peril of becoming grandiose, at least since Plato, democracy has been tarred with making unequals equal, with failing to recognize fundamental differences in value and ability among persons; a Nietzschean version of this claim is that democracy's veneration of equality debases standards of excellence. Moreover, many political institutions rest on implausible or counterfactual assumptions of citizens’ equality, particularly economic equality: In the famous words of Anatole France, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.” On the account of democratic justifications offered here, this presumption of equal competence constitutes a fundamental basis of respect for citizens: As such, democratic institutions should treat ordinary citizens as if they were equally capable of judging relevant matters in those domains to which they are assigned responsibility.Footnote 12 This is the force of Elizabeth Anderson's “conjecture” mentioned above that epistemically just institutions require “universal participation on terms of equality of all inquirers.” Finally, in this context, claims on the part of would-be jurors to epistemic respect are linked, perhaps inextricably, to claims to moral respect. In excluding members of the community from the right to serve as jurors, we deny them not merely the chance to participate to stand in relation to each other as equals within the courthouse—as equal coparticipants in a process of the deliberative formation of judgments.Footnote 13 In a sense, we fail to extend them the moral respect due to them as members of a polity whose role centrally consists in judging qua peers.Footnote 14
Again, if we believed that juries systematically empaneled the incompetent, we would have good reason to believe that juries were incapable of rendering just verdicts and thus that juries were unjustified. In turn, we would have good reason to choose judges or some alternative institution to replace them. For democratic citizens deprived of the right to serve as jurors, there would be substantial cost—including, potentially, some generalized disrespect—but were there substantial evidence that an alternative institution performed better, the interests of the litigants and the state more generally in fair trials would outweigh these concerns. (Again, one might note, however, that because there is no straightforward independent basis on which we might assess the reliability of judges versus juries, such a judgment would necessarily be speculative.) But if we believe that lay juries are in fact justifiable, it should be at least in part on the grounds that jurors possess the competence to deliberate and render judgment on the basis of the evidence presented at trial. For this reason—and because the presumption of equal competence prevents us from relying on diversity-reducing heuristics—the jury's instrumental value thus rests crucially on our presumption of equal competence. Yet this presumption of equal competence is simultaneously the source of the jury's ability to instantiate epistemic respect.
RECONCILING THE TWO VALUES
As I have argued, the justification for situating judgment with jurors rather than professional judges depends on dual egalitarianism, one that is necessarily rooted in a set of historically rooted and conjectural claims. As we lack conclusive support for one institutional scheme over another, our confidence in the jury's justifiability on instrumental grounds depends on these egalitarian presuppositions. Yet insofar as the “engine” of the jury's instrumental value rests on the presumptive competence of ordinary citizens, those excluded from eligibility may rightly object to epistemic disrespect. The instrumental value of the jury depends on respect-conferring commitments to egalitarianism; the claim to epistemic respect, in turn, depends on the view of the jury as securing the instrumental value of just trials.
Let me now distinguish this claim from two alternative justificatory strategies by which one might be tempted. The first is that epistemic or moral respect would constitute a sufficient justification for the jury. This argument would fail on two grounds. It would be insufficiently concerned about the justice of verdicts, particularly for defendants but also for society more generally. Second, absent the instrumental aim of rendering just verdicts, the respect-based claims would be vacuous. In a different context, Jon Elster characterizes the educative value of political participation as an essential by-product; participation motivated strictly by the desire for edification, rather than the aim of achieving some political goal, would be empty if not incoherent (Elster Reference Elster, Elster and Hyllund1986, 125). So, too, for juries: The value (including, perhaps, the educative benefits) of jury service as a marker of respect for judgment is crucial, but such value derives only from acting to fulfill the instrumental goal of impartially judging their fellow citizens.
The second justificatory argument would be narrowly instrumental: here, we need not take into account respect-based considerations, as the sole consideration must be just verdicts. Again, if we had good reason to believe that professional judges were more likely to produce just verdicts, we would do no wrong by situating this responsibility with them; the obligation to achieve substantive justice for litigants would outweigh our duties to realize epistemic justice. Yet once we accept that the jury's value as an instrument derives from its hierarchical and horizontal egalitarianism, community members do acquire an interest in the public recognition of their capacity to judge. As such, those excluded from eligibility, or otherwise treated disrespectfully, may reasonably claim that they have suffered dignitarian harm. In turn, disrespectful treatment and exclusion may harm not only the dignity of citizens, but reduce both the reliability of verdicts and the public perception of their authority.
Finally, we are now able to see how this account departs from a competing vision of the jury as an epistemic proceduralist institution, which David Estlund outlines in Democratic Authority (Reference Estlund2008). Estlund argues that “a (suitably constructed) jury system has an epistemic value that no reasonable or qualified point of view could deny” (Estlund Reference Estlund2008, 156). As his aim is to offer a “philosophical framework,” Estlund declines to offer any account of either the institutional details that would promote the value of juries or the details of the historical or cultural setting of the jury system. But he does conjecture that the “essential elements of the argument for the authority of the jury system are all present in a democratic system of government”: (1) the value of substantively just laws and policies; (2) the “demographically neutral” features of the jury and democracy that would block “qualified objections”; (3) the value of “many citizens thinking together, potentially reaping the epistemic benefits this can bring, and promoting substantively just decisions better than a random procedure”; and (4) “that there is no nondemocratic arrangement that all qualified points of view could agree would serve substantive justice better” (Estlund Reference Estlund2008, 157).
Estlund's account relies, crucially, on the “qualified acceptability” of the jury, which achieves its epistemic value deliberatively. By “qualified acceptability,” Estlund means that it does not entail “invidious comparisons,” which would fail under the scrutiny of all qualified or reasonable points of view. One might well argue, against Estlund, that the qualified acceptability requirement should not disqualify professional judges, assuming that the qualifications for appointment were nonarbitrary and that the judicial positions were open to all applicants possessing the relevant criteria; the authority of judges over criminal justice matters could be given a justification acceptable to all qualified points of view, and those lacking the requisite expertise would have no cause for complaint if excluded. (If we were to insist—as Estlund at points does—that the egalitarian force of qualified acceptability precludes us from this move, then we might also ask whether the epistemic argument is truly doing the justificatory work with which it is tasked.Footnote 15) Estlund's defense of the jury over judges on epistemic grounds must be demographic: that judges would have “epistemically countervailing” biases that would undermine their claim to expertise relative to juries (Estlund Reference Estlund2008, 215). But those skeptical of juries might reply that the distorting effects of biases are matched by the ignorance and competing biases of ordinary citizens, and it is difficult to see how this argument could be ushered out on grounds of unacceptability or unreasonable conjecture. As such, if the jury can be defended, on Estlund's own account, as “being (at least nearly) the best epistemic instrument available so far as can be determined within public reason” (Estlund Reference Estlund2008, 154), then it would seem it, too, must presuppose the epistemic value of deliberations among equal and diverse citizens.
Epistemic proceduralism is silent about the respectful treatment of jurors, as it takes the virtue of these procedures to lie essentially in their instrumental value. Indeed, Estlund himself would seem to reject the claims of those who would demand equal eligibility on respect-based grounds; while he denies the claims of the educated to extra votes because of the risk of demographic distortions, he also holds that “equal voting is a questionable ideal” (222), one not necessarily mandated by qualified acceptability. This demonstrates the poverty of epistemic proceduralism in isolation from considerations of epistemic justice, particularly as a justification for the jury or democracy. We cannot appeal to the instrumental benefits of democratic equality in the context of the jury—the benefits of deliberation among randomly selected, diverse citizens—without acknowledging that such an account presupposes citizens’ competence as judges and thus validates citizens’ claims to equal epistemic and moral respect. Alternatively, we may accept epistemic proceduralism as a source of political authority, but we must be prepared to abandon commitments to egalitarian or deliberative arrangements in favor of nondemocratic alternatives, with the moral and political risks such institutions also carry. The promise of the account on offer here is that it may, at least under certain conditions, neatly reconcile the aims of just outcomes and of equal epistemic respect.
INCLUSION, EXCLUSION, AND THE TWO VALUES
Does the hypothesized reconciliation between the aims of just verdicts and of respectful treatment of jurors hold? One means of reconciling the two is to suggest that, absent concerns about respectful treatment, we may be too easily tempted to exclude certain members on instrumental grounds, that is, to hold that certain members do not deserve to be treated as presumptively equal in their judgment. In particular, we may be tempted to presume that the judgment of both felons and the disabled is defective rather than reflecting on whether their distinctive perspectives might improve outcomes or whether the presence of assistants in the case of persons with disabilities may enable the latter's participation on equal terms.
There are two primary justifications for excluding persons with felony convictions from juries: (1) the probability that they will be biased against the prosecution in a criminal trial because of their own negative experience with the criminal justice system and (2) that their “probity” is demonstrably corrupt, as their commission of a felony proves. Concern about felon exclusion has typically arisen on the grounds of disrespect, as with objections to felon disenfranchisement: It is often suggested that these rules owe their development to Jim Crow laws and that they constitute a means of racial exclusion by other means (Alexander Reference Alexander2010). Indeed, in 2003, Brian Kalt estimated that thirteen million people, including approximately thirty percent of black men, are permanently barred from jury service because of felony convictions (Kalt Reference Kalt2003).
In the case of women and African Americans, there were no possible epistemic benefits gained from exclusion; their exclusion was indeed simply an unwarranted brand. In the case of felons, though, the claim of “probity” entails a facially neutral justification for their exclusion, one that has passed constitutional muster. One straightforward response is to show that the putatively instrumental benefits of exclusion are met by instrumental costs: The disproportionate exclusion of racial minorities may harm the ability to draw a fair cross section of the community, and jury members with experience of the criminal justice system may provide valuable and distinctive insights during deliberations. Finally, even if one might have reason to believe that a person with a criminal conviction might be inclined to side with defendants against the state, no such bias would operate in civil trials, in which the government is not a party.
Those excluded from service may argue that their fundamental interests in epistemic, and moral, respect are harmed by their exclusion. First, they may argue that racially disparate policing and sentencing, especially for drug-related crimes, may mean that whites are less likely to be convicted of felonies and to be subsequently ineligible to serve, despite having violated the same laws; as such, exclusion simply reaffirms the harms of unjust disparate treatment. Moreover, insofar as the aim of criminal justice and imprisonment is at least in part rehabilitative, there should be no reason to preclude all those with felony convictions from service on the grounds of incorrigibility. Indeed, many states specify the categories of those who may serve on the grounds that felonies differ quite dramatically in their severity, and violations deemed felonies in one jurisdiction may be misdemeanors in others. Absent concerns about disrespect, arguments about the relative instrumental costs or benefits of felon disenfranchisement might never arise; the presumption that felons are unequally competent to serve would remain unchallenged. Taking seriously the interests of excluded citizens forces us to assess the epistemic costs and benefits of exclusion, and we might reasonably believe that only when the evidence is quite strong that inclusion will come at the expense of fair trials should exclusion occur.
One such case may arise if we consider the exclusion of persons with serious cognitive disabilities. Considered strictly from an outcome-based perspective standpoint, we might take inclusion of the cognitively disabled to be a nonissue; that is, whatever interests the disabled may claim to have in epistemic respect should be of no concern, as we do them no harm by excluding them from roles that they cannot fulfill. Yet if we are willing to acknowledge that exclusion, even if warranted, may entail a form of dignitarian harm, then we must consider more fully the nature of the objection. Martha Nussbaum has distinguished among categories of cognitive disabilities, arguing, for instance, that a person who may have difficulty reading may be nonetheless capable of serving on a jury, particularly if efforts at inclusion (along the lines of those made available for those with physical disabilities) were offered (Nussbaum Reference Nussbaum2009). Nussbaum argues further that persons capable of communicating preferences to guardians—but incapable of expressing them in a way comprehensible to the wider world, including fellow jurors—might still be capable of exercising this function were the guardians present. Such barriers present special difficulties because of the fundamentally deliberative and interactional nature of jury service and because of appropriate skepticism about certain mechanisms, such as facilitated communication, which may enable the facilitator to substitute (if inadvertently) her judgment for the noncommunicative person (Schlosser et al. 2014). The ability of the jury to perform its labor depends so crucially on the involvement of each member that the mediated nature of noncommunicative guardian intervention may harm the ability of both the disabled juror and the jury as a whole to reach its instrumental aims. However, in cases in which the disability is merely communicative rather than intellectual, and in which reliable tools to augment communication are available, both the aim of just verdicts and of respect may be promoted by inclusion.
As Nussbaum suggests, even if we came to the conclusion that any participation by aids was impermissible, we would still have had an important debate about the inclusion of disabled persons, one that a purely instrumental standpoint will not encourage. Considering the inclusion of persons with cognitive disabilities helps us to subject our judgments about the appropriate threshold of competence to scrutiny; the history of racial and gender-based exclusions has taught us that such judgments may demand revision, and we may be liable to presume incompetence where it is unwarranted.
Peña-Rodriguez v. Colorado and the scope of respect
One might ask whether eligibility for jury service exhausts the requirement of respectful treatment. For instance, the requirement of reason-giving constitutes a form of respect for judgment that shape prospective and empaneled jurors’ experience in crucial ways, affecting in turn the probability that they will produce just verdicts. One might argue further that respect for the judgment of lay citizens must also encompass practices that shield them from coercion, including an expectation that their deliberations will remain private. What does the reconciliation model recommend when respectful treatment—treating jurors’ judgments as immune from inquiry—threatens just outcomes?
In Peña-Rodriguez v. Colorado (2017) the Supreme Court addressed the issue of whether a court may consider a motion for a new trial when a juror presents evidence, at odds with the common-law rule against “impeachment,” that one or more jurors were motivated by racial animus in voting to convict. Following a criminal trial in Colorado, in which the defendant was found guilty of unlawful sexual conduct and harassment, two jurors came forward to report that another juror had expressed anti-Hispanic bias toward the defendant and his alibi witness. The no-impeachment rule, which dates to the eighteenth century, shields the jury from “intrusive inquiry” into its deliberations, in part on the grounds that the jury itself possesses interests in “full and frank discussion” and in remaining free from harassment by the defeated party. In Peña-Rodriguez, the Supreme Court held that the no-impeachment rule should “give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee” under the Sixth Amendment (580 U.S. __, at 17). Yet one way to construe the question posed by Peña-Rodriguez is how to weigh the interests of the jurors in respect for their judgments—formed independently, through a deliberative process—against the interests of the defendant and the state more generally in fair trials. When the verdict may have resulted from racial animus, the Court held that the instrumental aim of just outcomes should outweigh the respect-based concerns of the jury.
In the case typically taken to originate the no-impeachment rule, Vaise v. Delaval (1785) Lord Mansfield declined to consider an affidavit from two jurors who held that the jury had reached its verdict by lot. In Tanner v. United States (1987), the Court rejected a Sixth Amendment exception for evidence that some jurors were under the influence of drugs and alcohol during the trial. In these cases and others, were we strictly oriented towards the instrumental value of trials, it would be difficult to explain the value of no-impeachment. Indeed, the argument in favor of permitting impeachment as essential to just outcomes is especially strong if, as the majority opinion in Peña-Rodriguez held, concerns about racial bias risk causing “systemic injury to the administration of justice” (580 U.S. __, at 16). But seen from a wider perspective, a no-impeachment rule might promote the overall aim of fair trials even if in particular circumstances it secured an unjust verdict. As the Court held in Tanner, the risk of impeachment could undermine “full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople” (483 U.S. 107, 120–121) as well as the willingness of jurors to serve, as Justice Samuel A. Alito, Jr., suggested in his dissent to Peña-Rodriguez.
Again, “the community's trust in a system that relies on the decisions of laypeople” is necessarily fragile; it derives from the reasonable belief in the jury's reliability if also its fallibility. Justice Alito's dissent in Peña-Rodriguez characterizes the “hierarchical egalitarian” justification for the jury as such:
Jurors are ordinary people. They are expected to speak, debate, argue, and make decisions the way ordinary people do in their daily lives. Our Constitution places great value on this way of thinking, speaking, and deciding. The jury trial right protects parties in court cases from being judged by a special class of trained professionals who do not speak the language of ordinary people and may not understand or appreciate the way ordinary people live their lives. To protect that right the door to the jury room has been locked, and the confidentiality of jury deliberations has been closely guarded. (580 U.S.__at 2)
The logic in this passage suggests that the epistemic claim of the jury—its ability to achieve its instrumental ends—rests crucially on jurors’ status as ordinary people, living lives in particular communities. It takes jurors’ interest in privacy in deliberations to be partially derivative of their lack of expertise: Unlike the other participants in the trials (especially judges and attorneys), they are not professionals, whose words and deeds may be recorded and scrutinized. Indeed, one might characterize the Alito dissent as placing substantial weight on the respect-based interests of the jurors. It does so not in terms of equal eligibility as such but instead emphasizes both jurors’ interest in participating in deliberations as fully and transparently as possible and in remaining free from harassment after the trial has concluded. Justice Alito further argued that jurors who reluctantly signed onto verdicts may be especially susceptible to overtures by the losing party, leading in turn to threats to the finality of verdicts.
The central question for this paper is whether the instrumental aim of fair trials can be reconciled with the jurors’ claim to respect for their judgment. The majority opinion holds that respect-based claims of jurors must give way in the face of evidence demonstrating that a juror's racial bias led to conviction and, indeed, that confidence in the instrumental value of trials can only be realized with such an exception. To be sure, intrinsic considerations may help to support the majority opinion as well, as jurors may have respect-based interests in additional barriers to racist arguments in their deliberations, and in being able to raise concerns about unfairness motivated by racism even postverdict.
As troubling as we should find the prospect of unchecked racism in jury deliberations, there are important risks associated with the holding in Peña-Rodriguez for the jury's viability and justifiability. As supporters of no-impeachment have long held, any exception creates an incentive for losing parties to harass jurors, seeking information into potential biases, whether plausible or not. The consequences would include even greater reluctance to serve on juries—perhaps especially on the part of vulnerable members of the community, who are more susceptible to coercion—and would undermine the finality of verdicts. For the account of the jury advanced here, the threat is profound. Our confidence in the jury's capacity to yield just verdicts is fragile: It hinges on our willingness to presume that ordinary citizens can judge fairly and equally and that our process of voir dire reliably, if not infallibly, eliminates prospective jurors harboring racial biases or other distorting causes of partiality. By inviting such challenges—permitting jurors’ judgment to be subject to ongoing scrutiny—we undermine our respect for jurors’ judgments, and in turn our confidence in juries’ ability to produce just verdicts.
As argued above, the justification of the jury rests on the view that its dual egalitarianism enables it to fallibly achieve the goal of just verdicts and that it is at least as likely as judges to accomplish this end. Again, if we had good reason to believe that juries in general were more likely to yield racially biased verdicts than judges, then we should prefer the latter to the former; indeed, we may want to consider eliminating juries entirely. Yet the tragic history is that no adjudicative institution is impervious to racial bias; the enduring hope of reformers has been that diverse juries will improve the substantive justice of verdicts, while simultaneously evincing respect for the judgment of members of racial minorities. Regrettably, if the account of the jury here is correct, in seeking to redress the problem of racial bias in isolated cases, Peña-Rodriguez may harm the broader cause of racial justice in both its epistemic and substantive forms.
CONCLUSION
I have argued that the epistemic proceduralist claim—that jury trials are justified by reference to their tendency to produce just verdicts—must rest on egalitarian commitments, which derive in turn from the presumption that ordinary citizens are competent to judge. Situating this responsibility for judgment with ordinary citizens, however, produces a set of interests on the part of community members in epistemic respect. The aim of yielding just verdicts may seem to conflict with members’ interests in serving on a jury; I argued that, at least in certain circumstances, deeper inquiry into prospective jurors’ claims to respectful treatment can enable us to reconcile these aims, as we may find that the grounds for their exclusion are less compelling than we might have previously thought (as in the discussion of those persons with felony convictions and with disabilities). At the limit, however, if we came to believe that jurors could not competently or justly yield verdicts in certain domains—for example, if we had compelling evidence that only specially trained judges could fairly adjudicate the most complicated civil trials or that pervasive racism contaminated juries but not (somehow) judges—we should no longer believe that the jury could serve its core instrumental purpose, and we would be justified in eliminating it. The discussion of Peña-Rodriguez demonstrated the difficulty of this latter issue, highlighting the challenge of redressing racial injustice in particular instances without undermining the ability of the relevant institutions to promote these goals in general. Because the jury's justification rests on beliefs in its overall ability to yield just verdicts, evidence of unjust verdicts necessarily threatens its justifiability. Indeed, in light of this analysis, it may seem remarkable that the jury has been able to endure.
How, then, does this shed light on questions surrounding the justification of democratic decision-making? Here I will necessarily be brief and schematic. As suggested, the right to serve as a juror is one of the two fundamental capacities of citizens, recognized from antiquity; the other is the right to vote. The basic historical argument remains, in effect, the same: the early modern inception of the franchise, via representative institutions, derived in the first instance from the fiscal and informational needs of the crown.Footnote 16 The ability to serve well in performing this instrumental role became a mark of distinction. Suffrage denoted status, but as it expanded horizontally—initially, again, in large part for informational reasons—the deprivation of the franchise became a source of stigma and of epistemic and moral disrespect. As with the jury, attempts to expand eligibility have been met with the objection that they will diminish the epistemic quality of outcomes. In response, claimants have appealed to the intrinsic value of the vote as a marker of respect for their judgment.
Still today, the claim to an equal right to vote is challenged by those who argue that one's intrinsic claim to vote cannot override the instrumental interests we have in producing good outcomes; on these grounds (and others) rest claims in favor of epistocracy [most recently by Brennan (Reference Brennan2016)]. My basic claim, though, is that like the jury, democratic decision-making rests on a presumption of competence, the ability of citizens to render judgments, although here I am agnostic about the content of these judgments [where the shoe pinches, in the Deweyan sense (Dewey Reference Dewey1991, 219), or whether a policy will serve the common interest]. Indeed, because citizens themselves will be bound by the outcome of the decisions—whereas jurors judge the fate of others—the case for such a presumption is even stronger. We presume rather than test, both because, as on the hierarchically egalitarian account, we believe ordinary citizens to be in a basically sufficient epistemic position to render judgments on questions posed to them, and, as on the horizontally egalitarian account, because any test will be subject to manipulation for exclusionary ends. The putative claims of inferiority in judgment, manifested most viciously in literacy tests, long served to justify the exclusion of African Americans from the polls. The presumption of competence underlies the argument that democratic procedures can perform well from the standpoint of aggregating dispersed local knowledge, but such procedures’ value is not merely instrumental; the ascription of such value also reflects respect for the judgment of ordinary citizens.
In conclusion, let me first take up the objection that this presumption is gravely misplaced; such would be the objection of both critics of democracy (particularly epistocrats, such as Jason Brennan) and those who, while unwilling to abandon democratic commitments, are concerned about the normative and institutional implications of placing excessive confidence in the judgment of ordinary citizens. Although I cannot respond fully to these objections here, let me acknowledge that the presumption of competence is itself utterly dependent on citizens’ having access to the educational resources necessary for the formation of judgment. Debra Satz has persuasively argued that the “idea of educational adequacy should be understood with reference to the idea of equal citizenship” (Satz Reference Satz2007, 635). As she demonstrates, in the New York State educational adequacy rulings, the Court of Appeals held that the constitution requires that the state provide an education sufficient to enable children “to eventually function productively as civic participants capable of voting and serving on a jury” (Campaign for Fiscal Equity, et al. v. The State of New York 86 N.Y. 2nd 316). In a subsequent ruling, New York Judge Leland DeGrasse struck down the entire New York State school financing system on the grounds that the New York constitution invokes an idea of education that involves: “more than just being qualified to vote or serve as a juror, but to do so capably and knowledgeably” (Campaign for Fiscal Equity, et al. v. The State of New York 100 N.Y. 2nd 893). Absent education sufficient to enable members of our political community to participate effectively in deliberative contexts, it is difficult to presume anything very much at all about citizens’ abilities. However, we might also note that eligibility for jury service has not consistently picked out even basic literacy as a necessary attribute—as the hierarchical account sought to demonstrate, local and tacit knowledge was sufficient—and so we should be wary of efforts to insist that the qualifications should be any more than minimal.
Finally, if eligibility for jury service is, like enfranchisement, a marker of epistemic and moral respect, then the exclusion of a great many community members warrants serious attention. Perhaps in part because of the burdensome nature of jury service—which many citizens seek to avoid—juror exclusion tends to meet with little public concern, except insofar as limited pools increase the frequency of summons. As argued above, the exclusion of persons with felony and even misdemeanor convictions is a matter of particular worry, especially given racial disparities. But attention to the value of local knowledge encourages us to think more capaciously about the value of including noncitizen members as well. In 2013, Governor Jerry Brown vetoed a bill, passed by the California legislature, that would enable legal, noncitizen permanent residents to serve. Governor Brown defended his decision on the grounds that “jury service, like voting, is quintessentially a prerogative and responsibility of citizenship.”Footnote 17 As we consider (ever more urgently) the question of securing paths to citizenship, both the instrumental and intrinsic value of enabling long-standing community members to serve as judges should weigh heavily. The aim of this paper has been to provide us with some comfort that we need not choose between these values and that democracy rests on both.
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