EDWARDS v. HEALY

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Argument of Kendall L. Vick

Chief Justice Warren E. Burger: We'll hear arguments next in number 73-759, Edwards against Healy and Others.

Mr. Vick, you may proceed whenever you're ready.

Mr. Kendall L. Vick: Mr. Chief Justice, may I please the Court.

I'm Kendall Vick Assistant Attorney General, State of Louisiana for Governor Edwards and others.

This case was brought by Miss Healy and others to challenge the Louisiana Constitution and Statutes, exempting women from service on juries unless they filed a written declaration of desire to serve.

This matter was heard before a three-judge panel in the Eastern District of Louisiana comprised of Judges Wisdom from the Fifth Circuit, Judges Rubin and Blake West from the Eastern District of Louisiana.

They found Hoyt Florida decided by this Court in 1961, a sterile precedent, no longer binding and held that the Constitution and statutory provisions of Louisiana unconstitutional as a denial of due process.

After appeal in this case had been perfected, the people of the State of Louisiana adopted a New Constitution which the Attorney General believes will moot the issue presently before the Court, January 1, 1975.

We filed a supplemental memorandum and type written and a supplemental brief printed reflecting those changes.

Article V, Section 33 (a) of the New Constitution of Louisiana, makes every citizen who has attained majority eligible to serve on a jury and 33 (b) of Article V of the New Constitution of Louisiana, leaves exemptions to the Supreme Court of Louisiana.

In the supplemental brief that I've supplied to the Court suggesting mootness, Exhibit One, starting on page five of the supplemental brief, which is a verbatim transcript of the convention's proceedings on the 36-day on August 24, 1973, which deals with this particular Section of the New Constitution clearly evidences, the overwhelming intention of that body made up of a 132 citizens of the State of Louisiana, that women be called for jury duty on the same basis as men.

Exhibit Two in the supplemental brief to be found starting on page 25 is a draft order of the Supreme Court of the State of Louisiana implementing the intention of the convention.

Justice William H. Rehnquist: Mr. Vick, what's the status of that draft order?

Does that the word draft, I mean, it hasn't really been promulgated yet?

Mr. Kendall L. Vick: I dare say, if I please the Court, is very much like a draft opinion that you would circulate to your brother and I checked with the Director of the judicial counsel and also with Justice Tate, who is the author of this order, on Friday and he said they was still being circularized to his brother.

I might add in an further answer to your question Your Honor, I was a delegate to the constitutional convention.

Justice Tate, Associate Justice of the Supreme Court of Louisiana was a delegate to the convention.

He is the author of this draft order and I have no doubt in my mind that this order will be in substantial form the way it appears here.

Furthermore, on Friday --

Justice Thurgood Marshall: I don't know where can you speak the Supreme Court of Louisiana?

Mr. Kendall L. Vick: I don't presume to do so.

Justice Thurgood Marshall: Well, I thought you said --

Mr. Kendall L. Vick: I don't presume to do so.

I was only reflecting --

Justice Thurgood Marshall: Is that so, that one man has drafted an order, one member of the Court and it circulated period, is that the facts?

Mr. Kendall L. Vick: That is a fact.

Justice Thurgood Marshall: Do we have anything more than that?

Mr. Kendall L. Vick: As of Friday, I have nothing more Your Honor.

Justice Thurgood Marshall: Well, as of today --

Mr. Kendall L. Vick: As of today, nothing more.

This morning --

Justice Byron R. White: We still have your opinion as to what's going to happen?

Mr. Kendall L. Vick: Yes, Your Honor I do.

I was about to say that on Friday the Attorney General issued an opinion to all clerks of Court in the State of Louisiana, directing them to put women in the wheel and in anticipation of January 1.

I do not obviously have a -- did not have time to--

Justice William J. Brennan: What's the selection from voter's list or something?

Mr. Kendall L. Vick: Yes, Your Honor.

Justice William J. Brennan: Primarily or?

Mr. Kendall L. Vick: Yes, Your Honor.

This morning, I was served with a reply to our brief suggesting mootness and I would like, if the Court please, to reject those portions that the Miss Ginsburg has raised out of hand because she has said, “While the volunteers only provision for female jury services not retained in the text of the New Constitution, nothing there in precludes continuation of the same exemption.”

I direct the Court's attention to the intention of the convention and furthermore, it directs the Louisiana's Supreme Court to provide by rule for exemption of jurors.

No provision to become operative at midnight on December 31, 1974, caused change in existing system.

I disagree, I think it most certainly does and the Attorney General has already taken steps in that direction as indeed the Supreme Court of State of Louisiana.

And on page 2, she says, “the Louisiana Supreme Court has held time and again that exemption at issue in the instant case is neither a rational nor discriminatory.”

May it please the Court, the Supreme Court Louisiana was following the guidelines set down in Hoyt and I don't think they could do anymore or any less.

Justice Potter Stewart: Mr. Vick, what's the practical importance of question of whether or not this case is moot to the?

You're going to be arguing the next case which involves a conviction --

Mr. Kendall L. Vick: Well, that's --

Justice Potter Stewart: And whether the same question arises and where no question of mootness could possibly exist.

So, what is the practical importance of this?

Mr. Kendall L. Vick: Practical importance is to bring the Court to the Court's attention pursuant of the rules of this Court.

Justice Potter Stewart: Which we appreciated --

Mr. Kendall L. Vick: Any change.

Justice Potter Stewart: But I just wondered what --

Mr. Kendall L. Vick: Now, our position is whatever the Court has of course is a matter for --

Justice Potter Stewart: Let's say --

Mr. Kendall L. Vick: Court.

Justice Potter Stewart: Let's say, we agree that this particular case was moot but the same issue exist in the next case, where there can be no question with mootness, isn't that?

Mr. Kendall L. Vick: That's correct.

But of course the appellants in that cases seeking reversal of a conviction.

Justice Potter Stewart: Right.

Justice Byron R. White: But don't you think that the defendant in the next case could loose that case and excluded potential women's jurors could win this case as an equal protection matter --

Justice Potter Stewart: Depart from mootness, you mean?

Mr. Kendall L. Vick: It's possible.

That's always a possibility.

Justice Byron R. White: Well, I mean just legally and logically it could happen I take it?

Mr. Kendall L. Vick: Yes.

Justice Byron R. White: So, it doesn't make some difference to whether this case is moot or not?

Mr. Kendall L. Vick: The only problem --

Justice Byron R. White: But the other case may not determine this one?

Mr. Kendall L. Vick: Indeed.

The only problem I have with that Your Honor is that when this man was tried Hoyt was good law and I assume its still is good law. Now, that's the only promise the State of Louisiana would have.

Justice Byron R. White: What ground do you think the -- in this case, didn't the Court find this settled down on the -- on potential litigants as the ones with standing?

Mr. Kendall L. Vick: In the District Court?

Justice Byron R. White: Yes.

Mr. Kendall L. Vick: Yes, You Honor.

Justice Byron R. White: And wasn't the rationale of the Court that there was such an opportunity for bias, for biased jurors that the exclusion of women was unconstitutional?

Mr. Kendall L. Vick: Indeed, they did.

Justice Byron R. White: Isn't that a due process matter?

Mr. Kendall L. Vick: It is indeed.

Justice Byron R. White: Don't -- most due process decisions retroactive?

Mr. Kendall L. Vick: Well, they have been from time to time.

Conversely Your Honor, the facts surrounding the conviction in the other case, I think might lend itself to a cry of passion of prejudice if indeed there were women in the jury, but I suppose we'll get into that then.

Justice Byron R. White: That could be a Sixth Amendment decision?

Mr. Kendall L. Vick: It could indeed.

Justice Byron R. White: Not a due process, isn't it?

Mr. Kendall L. Vick: Yes sir.

Justice Byron R. White: Well, I mean it could be a Sixth Amendment through the due processes, isn't it?

Mr. Kendall L. Vick: Yes, You Honor.

Justice Byron R. White: Which may be different than a -- the due process decision that has been rendered by the three-judge District Court, isn't it?

Mr. Kendall L. Vick: Yes, Your Honor.

Justice William H. Rehnquist: Well, there could be a question of standing in this -- in the appeal from the criminal conviction, whether or not as to whether a man has standing to raise this claim?

Mr. Kendall L. Vick: Well, Your Honor.

I'm almost prepared to concede that on the basis some decisions that have been handed by this Court recently.

However, it is an arguable point.

Justice Thurgood Marshall: What in Louisiana -- could the legislature give exemptions with the --

Mr. Kendall L. Vick: Not.

Justice Thurgood Marshall: With the present 11.28?

Mr. Kendall L. Vick: Not under the present Constitution.

May it please Your Honor, if you will read that is the entire purpose of taking out the legislators' hands.

Mr. Ambrose Lamprey, who introduced the resolution making it a reflecting what it does now in the present and in the New Constitution, was the President of the Clerks of Court Association.

He said unequivocally that he want to take out the hands of the legislature and putting it in the hands to the Supreme Court.

Justice Thurgood Marshall: That word, I mean on the language itself doesn't it preclude the legislature?

Mr. Kendall L. Vick: Unequivocally.

Justice Thurgood Marshall: That's what I thought.

Mr. Kendall L. Vick: Thank you.

Chief Justice Warren E. Burger: Very well.

Mrs. Ginsburg.

Ms Ruth Bader Ginsburg: Mr. Chief Justice, may it please the Court.

I will address first appellant's mootness suggestion.

In a judgment entered in September 1973, the Louisiana Constitution, Article VII, Section 41 and legislation enacted pursuant to it where declared unconstitutional by the Federal District Court for the Eastern District of Louisiana sitting as a three-judge court.

Article VII, Section 41, precludes jury service by women who do not file with the clerk of the Court, a written declaration of their desire to serve.

On April 20, 1974 while this appeal was pending, Louisiana adopted a New Constitution to become affective at the start of 1975.

On the basis of that development, appellant suggests that this controversy, although, not now moot will become moot on January 1, 1975.

The New Constitution as appellate has pointed out provides that all citizens who have reached the age of majority are eligible for jury service.

It authorizes the legislature to provide additional qualifications.

The legislature has not yet had its session to implement the constitutional divisions and it directs the Louisiana Supreme Court to provide by rule for exemption.

The draft order on exemptions under the New Constitution and next to appellant's memorandum suggesting mootness is at this stage merely a proposal.

It's interesting to note that it was drafted by Justice Tate, who has been a consistent dissenter from the Louisiana's Supreme Court opinions upholding the jury service exemption for women.

The volunteer's only scheme remains fully operative until that system is discarded and replaced by a system that renders women and men equally amenable to jury service.

Justice William J. Brennan: Would that be true after January the 1st?

Ms Ruth Bader Ginsburg: There is no way unknowing that --

Justice Byron R. White: Is that volunteers only, would that continue after January 1st, until there was a Supreme Court rule?

Ms Ruth Bader Ginsburg: Unless and until something comes from the Supreme Court or from the legislature there is nothing on which to base a change.

There's just a constitutional provision, is absence of a constitutional provision where there was one before.

In Hoyt v. Florida there was no constitutional provision involved, there was just a statute.

Justice William H. Rehnquist: What is -- what will the New Constitution say about jury service Mrs. Ginsburg?

Ms Ruth Bader Ginsburg: It will say, “Simply,” this is practically verbatim from the text, “all citizens who have reached the age of majority are eligible for jury service.”

The women are not eligible for jury service and then it authorizes the legislature to provide and the expression is additional qualifications and it directs the Louisiana Supreme Court to provide by rule for exemption.

Justice William H. Rehnquist: What if neither of those bodies act and you simply have the constitutional provision and nothing else?

What's the court of a typical --

Ms Ruth Bader Ginsburg: Likely still to follow the statute and Louisiana Code of Criminal Procedure 402, which says that we don't put women on the list unless they register, the statute would still be enforced unless the legislature acts to ignore it.

Justice William H. Rehnquist: Well, wouldn't it be inconsistent with the constitutional provision, it says all persons are eligible?

Ms Ruth Bader Ginsburg: All persons are eligible for jury service or all citizens are eligible for jury service in Louisiana.

Now, it isn't a question of women's ineligibility.

Question is whether they are to be accorded an exemption under which they are not put on the list unless they affirmatively come in and volunteer for service.

Appellees and the class they represent, all female citizens of Louisiana engaged in State Court litigation in which trial by jury is sought.

They maintain that the Louisiana jury selection system which effectively excludes more than half of the population eligible for jury service, impacts adversely upon the state's adjudicatory system and denies all litigants jury trials consistent with representative Government and a democratic society composed of men and women.

More particularly, they assert that the Louisiana jury selection system denies them the equal protection of the laws and due process of law because the system precludes any possibility that their cases will be tried by a jury drawn from a representative cross-section of the community.

Rather the system assures that their peers, members of their sex, 53 % of the population of persons eligible for service are almost totally absent from the jury pool.

Appellees standing to challenge the absence of members of their class is evident.

Women are surely a cognizable group within the community.

They are a readily identifiable class similarly constant in membership.

As litigants, women are no less entitled to maintain a challenge of this kind than on members of a racial, national origin or religious group as --

Justice Potter Stewart: The class -- the class was what?

The plaintiff's --

Ms Ruth Bader Ginsburg: There are three classes in the action as instituted in a District Court.

Judge Rubin left open the question of a standing of two of those classes.

He declared that the class of women litigants had standing and therefore, it was unnecessary to decide whether the class of woman as potential jurors or of men as potential jurors had standing.

Justice Potter Stewart: So, that he allowed the class of women litigants or potential women litigants?

Ms Ruth Bader Ginsburg: Yes.

Justice Byron R. White: Only potential?

Just potential, none of them are accidentally --

Ms Ruth Bader Ginsburg: Oh, yes they were.

In fact Judge Rubin point specifically to Jenny Lee Smith Baggett, one of he named representatives of the cause of litigants.

She had filed a civil damage action.

Justice Potter Stewart: Civil and/or criminal litigants?

Ms Ruth Bader Ginsburg: That presented a certain problem.

The difficulty of joining women who are enmeshed in the criminal process, in a civil litigation report of three-judge Court, so our named representatives are all civil litigants, not criminal litigants.

However, they assert the interest of women litigants generally in both proceedings.

This Court noted in Ballard against United --

Justice Potter Stewart: What is that claimed damage?

What is their claimed injury?

Ms Ruth Bader Ginsburg: Two claims.

One, that they are denied equal protection as any other well defined group would be by the total absence of their peers from the jury.

And --

Justice Potter Stewart: Why -- I thought the new theory was that there's very little difference between men and women and so why wouldn't a men jury be there --

Ms Ruth Bader Ginsburg: Well, I am not aware of that new theory.

I subscribe and I think most people do to a theory announced by one of the justices some years ago in Ballard against the Unites States, that the two sexes are not fungible, that the absence of either may make the jury even less representative of the community than it would be if an economic or a racial group were excluded.

Justice Potter Stewart: What was the other's injury?

You said, one was denial of the equal protection to --

Ms Ruth Bader Ginsburg: And the other is denial of due process.

The right of every litigant who is subject to jury trial to a jury that is drawn from a representative cross-section of the community and that is the right of all litigants male or female to that jury composed of a representative cross-section.

The difficulty for the three-judge court was this Court's 1961 --

Justice Byron R. White: What's the source of that?

Justice Potter Stewart: Yes.

Ms Ruth Bader Ginsburg: What is the source of that?

Justice Byron R. White: Provision of the Constitution 21.08?

Ms Ruth Bader Ginsburg: Well, due process, yes.

Justice William H. Rehnquist: What decision?

Ms Ruth Bader Ginsburg: This Court has expressed in, for example, appeal against Southern Pacific Company 328 --

Justice William H. Rehnquist: It was a Federal Court case?

Ms Ruth Bader Ginsburg: Yes, but the proposition expressed that went beyond supervision of the Federal Judicial system.

The Court said that the American tradition of trial by jury in criminal or civil cases necessarily contemplates an impartial jury drawn from a cross-section of the community.

Justice Byron R. White: Well, what -- the state could try these civil cases without any jury at all as far as any decision this Court is concerned?

Ms Ruth Bader Ginsburg: Yes the -- well, at least I should put it even if there is no Seventh Amendment right to jury trial in a state court, once the State does provide a jury trial Justice White, the State does provide a grand jury though it's not required, then its selection and procedures become subject to equal protection and due process scrutiny as does any other state action.

On the merits, Hoyt against Florida upheld the statute virtually identical to the scheme at issue here and indeed this court has not yet explicitly reconsidered its 1880 dictum in Strauder against West Virginia, 100 U.S. at 310, that a state may constitutionally confine jury duty to males after Strauder, but before Hoyt in 1947 and Fay v. New York, 332 U.S.

The “blue ribbon” jury was contested but also in New York's automatic exemption of women, the Court upheld that women don't need exemption and in the process indicated that women might be beyond the pale of the Fourteenth Amendment.

The majority opinion in Fay assert that though, there maybe no logical reasoning for differential treatment of men and women for jury service purposes, the states are constitutionally compelled to acknowledge only one aspect of women's full membership in the political community, her Nineteenth Amendment right to vote.

The Fay Court was relying exclusively on the fact that well into the 20th Century, it was the virtually universal practice in the United States to allow only men to sit on juries.

Appellants had asserted in their jurisdictional statement and appellees agree, that this case presents an appropriate occasion for the Court to articulate guidelines and standards with respect to the equal amenability of women and men to jury service.

Because this Court's own past pronouncements have operated not merely to sanction women only jury service exemptions, devious from the start, but to impede change long over due though a majority of States now treat jury service as a basic civil right as well as a fundamental civic responsibility.

Justice Potter Stewart: Is Louisiana -- Louisiana is unique as I understand it from the briefs, is it not?

Ms Ruth Bader Ginsburg: In the registration system.

There are six other States that have one slight variant on that.

Women are placed in the jury pool but they are exempt simply because they are women and then there are several other States that have a range of women only exemptions and these exemptions persist well into the 1970's and challenges to them are rejected summarily by both federal and state courts.

Justice Potter Stewart: For the basis of Hoyt, isn't it?

Ms Ruth Bader Ginsburg: Yes, and Hoyt is precedent.

Justice Potter Stewart: What's the present status Mrs. Ginsburg of the proposed equal rights amendment to the Constitution of the United States?

Ms Ruth Bader Ginsburg: The proposed amendment has been ratified by 33 States.

The period in which ratification is open runs until 1979.

Justice Potter Stewart: 79?

Ms Ruth Bader Ginsburg: Yes.

Justice Potter Stewart: And it requires a how many States?

Ms Ruth Bader Ginsburg: 38.

Justice Potter Stewart: 38 and it's been ratified by 30?

Ms Ruth Bader Ginsburg: 33.

Justice Potter Stewart: 33.

Justice William J. Brennan: That include the two that have drawn?

Ms Ruth Bader Ginsburg: No.

No, it adds a question not appropriate to go into at this point, but two have purported to withdraw their ratification.

Justice Potter Stewart: Two and you're including those two in the 33?

Ms Ruth Bader Ginsburg: I know I'm not.

It would be 31 if those withdrawals were effective.

Justice Potter Stewart: Well, you're including those two in the 33?

Ms Ruth Bader Ginsburg: I am including them, yes correct, yes.

Justice Potter Stewart: So, there are at least five to go between now and 1979?

Ms Ruth Bader Ginsburg: At least five and if you accept the argument that withdrawal is effective than seven.

The --

Justice Potter Stewart: How many have affirmatively rejected?

Ms Ruth Bader Ginsburg: I don't know what the counties on that.

A number of States have rejected it but that doesn't -- that's not binding.

If a State that once rejects, I think that's --

Justice Potter Stewart: Can later approve?

Ms Ruth Bader Ginsburg: Yes.

Yes.

Justice Potter Stewart: So, long it is done before 1979 --

Ms Ruth Bader Ginsburg: Yes.

Justice Potter Stewart: By the date of 1979?

Ms Ruth Bader Ginsburg: Yes and of course, that as would be expected, the States that have already ratified with States in which the ratification campaigns were easier than the remaining states.

Justice Potter Stewart: The -- I asked that because I'm reminded that there is some discussion of that proposal amendment in the Frontiero opinion and --

Ms Ruth Bader Ginsburg: Yes, yes.

The progress has been slow since the Frontiero opinion on ratification.

Justice William J. Brennan: Since or because of it?

Ms Ruth Bader Ginsburg: I think it unrelated.

Justice Potter Stewart: You think what?

Ms Ruth Bader Ginsburg: Unrelated.

Justice Potter Stewart: Oh.

Ms Ruth Bader Ginsburg: Well, I'm -- I might have say with it -- that with respect to this Strauder dictum and without regard to any bold dynamic development of that dictum is totally understandable in it's historic context.

The common more jury was composed of three unlawful men not women and Blackstone had explained in the third volume of his commentary that, though the Latin word “homo” are referred to members of both sexes, the female was, of course, excluded from jury service because of the defects of her sex and that pattern was accepted in 19th Century even early 20th Century United States.

Why should the women serve on juries when they couldn't vote or hold office, when many of them, a married woman, were subject to a range of legal disabilities that drastically curtailed their scope of activity.

Hoyt decided just 13 years ago is not susceptible to the same kind of historical interpretation, but it maybe explained on the basis of an assumption apparently indulged by the Court, that the volunteers' only system might yet yield substantial female participation.

The system had been in effect in Florida only some 10 years at the time Hoyt was tried. Until 1949, Florida (Inaudible) jury said, “This is exclusively to men.”

The three concurring justices were unable to say based on the Hoyt record that Florida failed to make an effort to have women perform jury duty and the majority opinion suggests that appellant Hoyt had not ruled out other circumstances for chance as one of the reasons for the porosity of women jurors.

But in the instant case, it is not disputed that the Louisiana selection system and only that system not other circumstances and not chance, produces jury list that rarely include any woman's name.

Based on the stipulated facts, the court below found that Louisiana's benign dispensation, not chance yields jury panels that never include more than 5% women and frequently less.

Significantly Mr. Justice Douglas, who concurred in Hoyt later acknowledged that inevitably, a volunteer's only system results in almost as total an exclusion as would obtain in women were not permitted to serve at all for --

Justice Potter Stewart: In there any variation among the counties or parishes is I guess you call them in Louisiana?

Ms Ruth Bader Ginsburg: I had not made a survey but I think that the stipulation was generous that not more than 10% are I think, I suppose less.

Justice Potter Stewart: Anywhere, in the state?

Ms Ruth Bader Ginsburg: Within in the State, Yes.

Justice Byron R. White: Let assume but by the time this case is decided there's a new rule in Louisiana that does not exclude with women amenity that exactly like with respect jury duty, would this case of the moot or not?

Ms Ruth Bader Ginsburg: By the time this case is decided?

In other words, if an exemption similar to the one attached to the memorandum is adopted and if the legislator doesn't put on additional qualifications and if the list, that's an important thing the implementation of it.

Justice Byron R. White: Well, just answer my question.

Let's assume that women and men are treat exactly alike under whatever new rules adopted with it.

Ms Ruth Bader Ginsburg: Yes.

Then, there is a difficulty in my case that is not present in Taylor that is in showing injury.

If you're --

Justice Byron R. White: All of your women plaintiffs would be eligible -- will be treated just like men.

Ms Ruth Bader Ginsburg: Yes.

Justice Byron R. White: And your --

Ms Ruth Bader Ginsburg: And they are not claiming the damages for the past.

Justice Byron R. White: And do your litigants and your civil litigants would have a right your potential litigants and litigants will have had their cases tried --

Ms Ruth Bader Ginsburg: That's right.

Justice Byron R. White: Would have -- have --

Ms Ruth Bader Ginsburg: That's right.

Justice Byron R. White: So, your case would be pretty empty, wouldn't it?

Ms Ruth Bader Ginsburg: If that happens well, we don't -- its mere speculation whether it will happen --

Justice Byron R. White: Oh, I understand that.

Ms Ruth Bader Ginsburg: Yes.

It would be certainly difficult --

Justice William J. Brennan: Well, do you have any idea Mrs. Ginsberg what state plans in that regard?

Is this the plan of the circulated Supreme Court document and whatever legislature is going to do or accomplish before the first of January?

Ms Ruth Bader Ginsburg: It should be accomplished before the first of January because that's one that when the New Constitution goes into an effect whether it will be I don't know.

I was told at the Court --

Justice William J. Brennan: But the plan is to have it by then --

Ms Ruth Bader Ginsburg: Yes.

I think that is right.

Justice Byron R. White: And is true that the rule that is circulating is what represented to the circulating report?

Ms Ruth Bader Ginsburg: Yes.

There is -- that is a draft rule drafted by Justice Tate that is now circulating.

What --

Justice Byron R. White: Assume that rule becomes the law?

Ms Ruth Bader Ginsburg: That rule, I might say is a model with jury exemptions.

It makes no distinction whatever between men and women.

It permits for excuses based on individualized circumstances and so that, in fact, is the rule of that appellees wished Louisiana had.

Justice Byron R. White: Have any of you -- have any of your actual women litigants have their cases tried yet?

Ms Ruth Bader Ginsburg: No.

No, not at this time.

Justice Byron R. White: And you don't have --

Ms Ruth Bader Ginsburg: And they can't ask --

Justice Byron R. White: If you don't ask this to pass on the standing of any other group here --

Ms Ruth Bader Ginsburg: Since the standing of the other groups --

Justice Byron R. White: You're supporting the decision below?

Ms Ruth Bader Ginsburg: Well, the decision below was to recognize clearly the standing of one group.

The standing of another group, I think, women as potential jurors is also clear in Judge Rubin's opinion at page 1114.

He does find unequivocally that women as jurors are denied equal protection.

Since the system conspicuously fails to meet the equal protection requirements for women as potential jurors because he made that finding on the merits, it's difficult to understand why he left over is the standing question and indeed appellees --

Justice Byron R. White: Well, it is not difficult if he says, a potential woman who wants to serve on the jury claiming she's denied equal protection of the law.

All she has to do is go ahead.

Ms Ruth Bader Ginsburg: That was not his position and I suppose it wasn't because that's -- we could make an analogy to voting.

Suppose there was a requirement that all women were eligible to vote but they must come in and register, while the men automatically added to the list when they reached the age of 18.

I suppose that would also be saying that women could do if they wanted to do but that additional burden I think would be --

Justice Byron R. White: But he did pass up their standing.

The standing --

Ms Ruth Bader Ginsburg: On the basis of the size of the class.

Not on the basis that they could register to service.

Justice Thurgood Marshall: What difference does it make it?

You got one class and you win, will you be satisfied?

Ms Ruth Bader Ginsburg: Yes, of course, I'd be delighted.

Finally, I'd like to deal with the purported justifications for Hoyt that I heard in the Louisiana and in Federal State courts, passing on similar to those likely less extreme exceptions.

Two points are made.

One, it's administratively convenient to exclude the women as a class, and the other is we must be concerned with family stability.

As far as the administrative convenience of a lump exemption of an individual project excuse is concerned, this Court's decisions in Reed v. Reed 404 U.S. and Frontiero v. Richardson 411 U.S., should be dispositive administrative ease is not sufficient to justify legislative resort to a gender criteria.

With respect to ensuring the care of dependence, particularly small children, the women only exemption is a appallingly overbroad, and stereotypically underinclusive.

Overboard because it includes the childless woman, the woman whose children are grown, the woman who can provide without hardship or care consistent with her family's needs while she's away from home and underinclusive because it does not encompass men among them without fathers husbands with incapacitated wives whose presence at home maybe essential to the family's well-being, but the total rationality of the Louisiana classification is demonstrated by census data and labor market statistics.

Focusing on the statistics for Louisiana set out at pages 18 and 19 of our brief, in 1970, 59% of Louisiana's total adult female population had no children under 18 and of the 41% with children under 18, 37% were in the labor force.

Thus, for nearly three quarters of the population covered by this benign dispensation, child care is not a factor determining involvement in civic responsibility or in employment outside of home.

National statistics are similar.

Justice Potter Stewart: Hoyt against Florida was decided less than 13 years ago?

Ms Ruth Bader Ginsburg: Yes.

Justice Potter Stewart: And it was a unanimous Court?

Ms Ruth Bader Ginsburg: Yes.

Justice Potter Stewart: You seem to could it really cavalierly, talking about it's purported justification and so on --

Ms Ruth Bader Ginsburg: Well, I think they were two reasons I did not tend to be cavalier.

There was the point that -- no, two points.

One, there was no assurance at that time that this system would in fact produced no women.

The three concurring justices indicated that, that maybe if Florida makes it a good faith effort to try and get women, women will serve.

Later, I think it's been acknowledged that as a practical matter a volunteer's only system whether it's offered to men or women will lead to virtual absence of that group from the jury people simply do not, most people, do not volunteer for what they might regard as a burdensome civic responsibility.

That was one aspect of it.

The other aspect of it was that the statistics in Hoyt not the same as those presented here in addition to the tremendous increase even initial period of time, women's participation in the labor force.

Hoyt court, never adverted to all the unemployed women, who do not have childcare responsibilities, that was another factor and the third factor was the concentration in Hoyt on the woman as potential juror.

This was a benign dispensation of favor to her, she could serve if she wanted to, but she had no responsibility to serve.

Chief Justice Warren E. Burger: In my respect it was somewhat like Shevin against Kahn, wasn't it?

Ms Ruth Bader Ginsburg: Well, if I may take a cue from Mr. Justice Brennan on that on his remark yesterday, Kahn against Shevin was a tax case and the dominant theme of that opinion is the large leeway, the line drawing permitted to the states in making tax classifications.

But what the focus on women jurors caused the Court to lose sight of what should have been the principle focus.

Now that action -- in that action, the defendant's crime was committed after an altercation in which she claimed her husband had insulted and humiliated her to the breaking point, convicted of second degree murder by an all-male jury.

She believed that women jurors might better understand her state of mind when she picked up a baseball bat and administered the blow that led to the litigation.

The Court did not focus on the denials of equal protection due process to Mrs. Hoyt.

The focus was on the benign nature of a classification to women as jurors rather than the unfairness to the litigant.

And that viewed in that light, the overriding consideration really should not be the burden or the benefit of jury service to perspective jurors, but the fairness of the system to litigants.

Justice Potter Stewart: Louisiana has age limits against it, doesn't it?

Ms Ruth Bader Ginsburg: No.

It provides an -- I think it --

Justice Potter Stewart: Can a two-year-old child serve --

Ms Ruth Bader Ginsburg: Oh!

Oh I'm sorry.

I though you meant upper age limits.

Yes, certainly than 18 is the age limit.

Justice Potter Stewart: 18?

Ms Ruth Bader Ginsburg: Yes.

Justice Potter Stewart: And under the draft proposal I think it says some 70, over 70?

Ms Ruth Bader Ginsburg: The 70 would be the basis for an exemption, I think.

I don't --

Justice Potter Stewart: Yes.

Ms Ruth Bader Ginsburg: People are off the list.

Justice Potter Stewart: So, there's a -- if a 75-year-old man is a litigant?

Does he have a lawsuit?

That he --

Ms Ruth Bader Ginsburg: At 75 --

Justice Potter Stewart: That he didn't got any jury of his peers --

Ms Ruth Bader Ginsburg: Of course, there is a tremendous difference between age, which is something that happens to all of us --

Justice Potter Stewart: 75-year-old man or a woman?

Ms Ruth Bader Ginsburg: -- and sex which is immutable and doesn't change.

And that's why age classifications should not properly be considered in the same light as classification based on a factor like race or sex or national origin something that is not going to happen to everybody.

You put in that status at birth and you can't get out of it.

Justice Potter Stewart: Well, it's some few exemptions.

Ms Ruth Bader Ginsburg: Which from (Inaudible) – [Attempt to Laughter]

Justice Potter Stewart: Worry about the favor sometime?

Ms Ruth Bader Ginsburg: Yes.

Well, --

Justice Byron R. White: At least Hoyt put a rest of any claims at that time anyway that there was something bias about juries without women on it?

Ms Ruth Bader Ginsburg: I don't think that it put --

Justice Byron R. White: And in that respect -- in that respect the Hoyt can't hardly be squared can it with this three-judge court decision?

Ms Ruth Bader Ginsburg: But Hoyt cannot be squared with these three judge court decision.

This three judge court said in Hoyt was --

Justice Byron R. White: And you can talk about --

Ms Ruth Bader Ginsburg: Sterile precedent and --

Justice Byron R. White: You can talk about, I mean, there are other reasons, that if it talked about Hoyt another jury cases, will you focus on the equal protection ramifications of excluding some potential jurors from serving on the jury without records to who the defendant is or what the consequences to the defendant might be --

Ms Ruth Bader Ginsburg: Yes.

Justice Byron R. White: -- but Hoyt involved the woman defendant in a criminal charge?

Ms Ruth Bader Ginsburg: Yes.

And I think that --

Justice Byron R. White: And the question was -- one of the questions was, whether exclusion of women -- that there was an unfair jury not whether there are some other --

Ms Ruth Bader Ginsburg: Well, there after all women are like men so they represented a cross section so it can be achieved by having men represent women.

Justice Byron R. White: I know, but the judge -- the judgment you're defending is that excluding women means they are unfair bias juries?

Ms Ruth Bader Ginsburg: Now, this, --

Justice Byron R. White: Now, what's happen since Hoyt?Did they think --

Ms Ruth Bader Ginsburg: This point has acknowledged that this --

Justice Byron R. White: -- that juries without women on are more unfair today than they were 15 years ago?

Ms Ruth Bader Ginsburg: If it were necessary to prove the unfairness in any particular case that would be virtually impossible standard --

Justice Byron R. White: But what's happened to say, that in enough cases it happened that you want to have a general rule about it?

Ms Ruth Bader Ginsburg: But it is a general rule I believe, I mean not only from (Inaudible) but from Williams case --

Justice Byron R. White: But it wasn't in Hoyt?

Ms Ruth Bader Ginsburg: No, it certainly wasn't in Hoyt, but there been a lot of jury cases in this Court, Carter against Jury Commission, Williams against Florida, talking about the essential attributes of a jury trial and one of the critical attributes is that it would be drawn from a representative cross section of the community, something that cannot be achieved if women are absent --

Justice Byron R. White: Can I suggest to you that the representative cross section requirements more related to equal protection than the due process in the sense of unfairness, equal protection and the sense of protecting members of the community from exclusion from jury service?

Ms Ruth Bader Ginsburg: Well, I think that it has come up in at least three context equal protection, due process, and then specifically, in the context of the Sixth Amendment.

Justice Byron R. White: Well, do you know of a case that says because of the -- because of the lack of a fair cross section just generally unfair cross section that you conclude that there is a unfair and unfairness in the jury in the sense that it is biased or that there could be an unreliable result?

Ms Ruth Bader Ginsburg: A case in this Court?

There are several District Court decisions.

All men --

Justice Byron R. White: There's a lot of them -- there are a lot of them that say that you have to have fair cross sections.

Ms Ruth Bader Ginsburg: Yes.

Justice Byron R. White: But what interest you're taking about that requirement furthers?

Now, this --

Ms Ruth Bader Ginsburg: Well, --

Justice Byron R. White: -- this district judge didn't say that the problem here was a cross section problem and it was a problem excluding women and then --

Ms Ruth Bader Ginsburg: And this -- I think --

Justice Byron R. White: And a jury without women on it trying a woman defendant would be unfair.

Ms Ruth Bader Ginsburg: If the Court -- I think said that in due process discussion in the context of the cross section requirement.

What it did say was that, the absence of women makes impossible this cross section.

The cross section is essential to the integrity of the jury system, is inherent in due process of law and therefore as a safeguard for all litigants.

That was the determination of the court below similar to the position taken by Justice Marshal in Peters v. Kiff.

I think, I've got no time --

Chief Justice Warren E. Burger: I'm not sure you need any defense Mrs. Ginsburg, but your brief and argument is much less cavalier toward Hoyt than the three judges of the Fifth Circuit.

Mr. Vick, do you have anything further?

Mr. Kendall L. Vick: No, Mr. Chief Justice.

Chief Justice Warren E. Burger: Ah --