1. A federal court jury panel from which persons who work for a
daily wage were intentionally and systematically excluded held
unlawfully constituted. Pp.
328 U. S. 221,
328 U. S.
225.
2. Such discrimination against daily wage earners as a class was
not justified by either federal or California law. P.
328 U. S.
222.
3. The choice of the means by which unlawful distinctions and
discriminations in the selection of jury panels are to be avoided
rests largely in the sound discretion of the trial courts and their
officers. P.
328 U. S.
220.
4. The pay period of an individual is irrelevant to his
eligibility and capacity to serve as a juror. P.
328 U. S.
223.
5. Although a federal judge may be justified in excusing a daily
wage earner for whom jury service would entail an undue financial
hardship, that fact cannot support the complete exclusion of all
daily wage earners regardless of whether there is actual hardship
involved. P.
328 U. S.
224.
Page 328 U. S. 218
6. Jury service is a duty as well as a privilege of citizenship.
A claim of financial embarrassment will excuse only when a real
burden or hardship would be imposed. P.
328 U. S.
224.
7. A judgment of the District Court in a case in which that
court denied a motion to strike a jury panel from which persons who
work for a daily wage were intentionally and systematically
excluded is here reversed by this Court in the exercise of its
power of supervision over the administration of justice in the
federal courts. P.
328 U. S.
225.
8. It is unnecessary in this case to determine whether the
unsuccessful litigant was in any way prejudiced by the wrongful
exclusion or whether he was one of the excluded class. P.
328 U. S.
225.
9. Nor is it material that the jury which actually decided the
factual issue in this case was found to include at least five
persons who were of the laboring class, though not
per
diem workers. P.
328 U. S.
225.
149 F.2d 783 reversed.
Petitioner brought suit in a state court against the railroad
company to recover damages for alleged negligence in its treatment
of him while a passenger on one of its trains. On application of
the railroad company, the suit was removed to the federal district
court on the ground of diversity of citizenship. The judgment of
the District Court, upon a trial by jury, was in favor of the
railroad company. The Circuit Court of Appeals affirmed. 149 F.2d
783. This Court granted certiorari limited to the question whether
petitioner's motion to strike the jury panel was properly denied by
the District Court. 326 U.S. 716.
Reversed, p.
328 U. S.
225.
MR. JUSTICE MURPHY delivered the opinion of the Court.
Petitioner, a passenger, jumped out of the window of a moving
train operated by the respondent, the Southern
Page 328 U. S. 219
Pacific Company. He filed a complaint in a California state
court to recover damages, alleging that the respondent's agents
knew that he was "out of his normal mind" and should not be
accepted as a passenger or else should be guarded, and that, having
accepted him as a passenger, they left him unguarded and failed to
stop the train before he finally fell to the ground. At
respondent's request, the case was removed to the federal district
court at San Francisco on the ground of diversity of citizenship,
respondent being a Kentucky corporation. Several vain attempts were
then made by the petitioner to obtain a remand of the case to the
state court; petitioner was also restrained from attempting to
proceed further in the state court. [
Footnote 1]
After demanding a jury trial, petitioner moved to strike out the
entire jury panel, alleging,
inter alia, that
"mostly business executives or those having the employer's
viewpoint are purposely selected on said panel, thus giving a
majority representation to one class or occupation and
discriminating against other occupations and classes, particularly
the employees and those in the poorer classes who constitute, by
far, the great majority of citizens eligible for jury service."
Following a hearing at which testimony was taken, the motion was
denied. Petitioner then attempted to withdraw his demand for a jury
trial, but the respondent refused to consent. A jury of twelve was
chosen. Petitioner thereupon challenged these jurors upon the same
grounds previously urged in relation to the entire jury panel, and
upon the further ground that six of the twelve jurors were closely
affiliated and connected with the respondent. The court denied this
challenge. The trial proceeded, and the jury returned a verdict for
the respondent.
Page 328 U. S. 220
Petitioner renewed his objections in his motion to set aside the
verdict or, in the alternative, to grant a new trial. In denying
this motion, the court orally found that five of the twelve jurors
"belong more closely and intimately with the working man and
employee class than they do with any other class," and that they
might be expected to be "sympathetic with the experiences in life,
the affairs of life, and with the economic views, of people who
belong to the working or employee class." The Ninth Circuit Court
of Appeals affirmed the judgment in its entirety, 149 F.2d 783, and
we brought the case here on certiorari "limited to the question
whether petitioner's motion to strike the jury panel was properly
denied."
The American tradition of trial by jury, considered in
connection with either criminal or civil proceedings, necessarily
contemplates an impartial jury drawn from a cross-section of the
community.
Smith v. Texas, 311 U.
S. 128,
311 U. S. 130;
Glasser v. United States, 315 U. S.
60,
315 U. S. 85.
This does not mean, of course, that every jury must contain
representatives of all the economic, social, religious, racial,
political, and geographical groups of the community; frequently
such complete representation would be impossible. But it does mean
that prospective jurors shall be selected by court officials
without systematic and intentional exclusion of any of these
groups. Recognition must be given to the fact that those eligible
for jury service are to be found in every stratum of society. Jury
competence is an individual, rather than a group or class, matter.
That fact lies at the very heart of the jury system. To disregard
it is to open the door to class distinctions and discriminations
which are abhorrent to the democratic ideals of trial by jury.
The choice of the means by which unlawful distinctions and
discriminations are to be avoided rests largely in the sound
discretion of the trial courts and their officers. This
Page 328 U. S. 221
discretion, of course, must be guided by pertinent statutory
provisions. So far as federal jurors are concerned, they must be
chosen "without reference to party affiliations," 28 U.S.C. § 412,
and citizens cannot be disqualified "on account of race, color, or
previous condition of servitude," 28 U.S.C. § 415. In addition,
jurors must be returned from such parts of the district as the
court may direct,
"so as to be most favorable to an impartial trial, and so as not
to incur an unnecessary expense, or unduly burden the citizens of
any part of the district with such service,"
28 U.S.C. § 413. For the most part, of course, the
qualifications and exemptions in regard to federal jurors are to be
determined by the laws of the state where the federal court is
located, 28 U.S.C. § 411. [
Footnote
2]
Pointer v. United States, 151 U.
S. 396. A state law creating an unlawful qualification,
however, is not binding, and should not be utilized in selecting
federal jurors.
See Kie v. United States, 27 F. 351,
357.
The undisputed evidence in this case demonstrates a failure to
abide by the proper rules and principles of jury selection. Both
the clerk of the court and the jury commissioner testified that
they deliberately and intentionally excluded from the jury lists
all persons who work for a daily wage. They generally used the city
directory as the
Page 328 U. S. 222
source of names of prospective jurors. In the words of the
clerk,
"If I see in the directory the name of John Jones and it says he
is a longshoreman, I do not put his name in, because I have found
by experience that that man will not serve as a juror, and I will
not get people who will qualify. The minute that a juror is called
into court on a venire and says he is working for $10 a day and
cannot afford to work for four, the Judge has never made one of
those men serve, and so, in order to avoid putting names of people
in who I know won't become jurors in the court, won't qualify as
jurors in this court, I do leave them out. . . . Where I thought
the designation indicated that they were day laborers, I mean they
were people who were compensated solely when they were working by
the day, I leave them out."
The jury commissioner corroborated this testimony, adding that
he purposely excluded "all the iron craft, bricklayers, carpenters,
and machinists" because, in the past, "those men came into court
and offered that [financial hardship] as an excuse, and the judge
usually let them go." The evidence indicated, however, that
laborers who were paid weekly or monthly wages were placed on the
jury lists, as well as the wives of daily wage earners.
It was further admitted that business men and their wives
constituted at least 50% of the jury lists, although both the clerk
and the commissioner denied that they consciously chose according
to wealth or occupation. Thus, the admitted discrimination was
limited to those who worked for a daily wage, many of whom might
suffer financial loss by serving on juries at the rate of $4 a day,
and would be excused for that reason.
This exclusion of all those who earn a daily wage cannot be
justified by federal or state law. Certainly nothing in the federal
statutes warrants such an exclusion. And the California statutes
are equally devoid of justification for
Page 328 U. S. 223
the practice. Under California law, a daily wage earner may be
fully competent as a juror. A juror, to be competent, need only be
a citizen of the United States over the age of 21, a resident of
the state and county for one year preceding selection, possessed of
his natural faculties and of ordinary intelligence and not
decrepit, and possessed of sufficient knowledge of the English
language. California Code of Civil Procedure, § 198.
Cf. §
199. Nor is a daily wage earner listed among those exempt from jury
service. § 200. And, under the state law,
"A juror shall not be excused by a court for slight or trivial
causes, or for hardship, or for inconvenience to said juror's
business, but only when material injury or destruction to said
juror's property or of property entrusted to said juror is
threatened. . . ."
§ 201.
Moreover, the general principles underlying proper jury
selection clearly outlaw the exclusion practiced on this instance.
Jury competence is not limited to those who earn their livelihood
on other than a daily basis. One who is paid $3 a day may be as
fully competent as one who is paid $30 a week or $300 a month. In
other words, the pay period of a particular individual is
completely irrelevant to his eligibility and capacity to serve as a
juror. Wage earners, including those who are paid by the day,
constitute a very substantial portion of the community, [
Footnote 3] a portion that cannot be
intentionally and systematically excluded in whole or in part
without doing violence to the democratic nature of the jury system.
Were we to sanction an exclusion of this nature, we would encourage
whatever desires those responsible for the selection of jury panels
may have to discriminate against persons of low
Page 328 U. S. 224
economic and social status. We would breathe life into any
latent tendencies to establish the jury as the instrument of the
economically and socially privileged. That we refuse to do.
It is clear that a federal judge would be justified in excusing
a daily wage earner for whom jury service would entail an undue
financial hardship. [
Footnote
4] But that fact cannot support the complete exclusion of all
daily wage earners regardless of whether there is actual hardship
involved. Here, there was no effort, no intention, to determine in
advance which individual members of the daily wage earning class
would suffer an undue hardship by serving on a jury at the rate of
$4 a day. All were systematically and automatically excluded. In
this connection, it should be noted that the mere fact that a
person earns more than $4 a day would not serve as an excuse. Jury
service is a duty, as well as a privilege, of citizenship; it is a
duly that cannot be shirked on a plea of inconvenience or decreased
earning power. Only when the financial embarrassment is such as to
impose a real burden and hardship does a valid excuse of this
nature appear. Thus, a blanket exclusion of all daily wage earners,
however well intentioned and however justified by prior actions of
trial judges, must be counted among those tendencies which
undermine and weaken the institution of jury trial.
"The the motives influencing such tendencies may be of the best
must not blind us to the dangers of allowing any encroachment
whatsoever on this essential right. Steps innocently taken may one
by
Page 328 U. S. 225
one, lead to the irretrievable impairment of substantial
liberties."
Glasser v. United States, supra, 315 U. S.
86.
If follows that we cannot sanction the method by which the jury
panel was formed in this case. The trial court should have granted
petitioner's motion to strike the panel. That conclusion requires
us to reverse the judgment below in the exercise of our power of
supervision over the administration of justice in the federal
courts.
See McNabb v. United States, 318 U.
S. 332,
318 U. S. 340.
On that basis, it becomes unnecessary to determine whether the
petitioner was in any way prejudiced by the wrongful exclusion, or
whether he was one of the excluded class.
See Glasser v. United
States, supra; Walter v. State, 208 Ind. 231, 195 N.E. 268;
State ex rel. Passer v. County Board, 171 Minn. 177, 213
N.W. 545. It is likewise immaterial that the jury which actually
decided the factual issue in the case was found to contain at least
five members of the laboring class. The evil lies in the admitted
wholesale exclusion of a large class of wage earners in disregard
of the high standards of jury selection. To reassert those
standards, to guard against the subtle undermining of the jury
system, requires a new trial by a jury drawn from a panel properly
and fairly chosen.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
The injunction against petitioner's proceeding in the state
court was affirmed upon appeal.
Thiel v. Southern Pacific
Co., 126 F.2d 710,
cert. denied, 316 U.S. 698.
[
Footnote 2]
Federal statutes prohibit the service by any person as a petit
juror "more than one term in a year," 28 U.S.C. § 423, exempt from
jury service artificers and workmen employed in the armories and
arsenals of the United States, 50 U.S.C. § 57, and set up
disqualifications for service as a juryman or talesman "in any
prosecution for bigamy, polygamy, or unlawful cohabitation, under
any statute of the United States," 28 U.S.C. § 426.
See, in general, Blume, "Jury Selection Analyzed:
Proposed Revision of Federal System," 42 Mich.L.Rev. 831; Report to
the Judicial Conference of Senior Circuit Judges of the United
States of the Committee on Selection of Jurors (1942); Report of
the Commission on the Administration of Justice in New York
(1934).
[
Footnote 3]
In the San Francisco-Oakland industrial area in 1939, there were
76,374 wage earners employed by manufacturers out of a total
population (as of 1940) of 1,412,686. Sixteenth Census of the
United States: 1940, Manufactures 1939, Vol. III, p. 80.
[
Footnote 4]
See statement of Judge John C. Knox in Hearings before
the House Committee on the Judiciary, 79th Cong., 1st Sess., on
H.R.3379, H.R.3380 and H.R.3381, Serial No. 3, June 12 and 13,
1945, p. 4.
". . . when jurors' compensation is limited to $4 per day, and
when their periods of service are often protracted, thousands upon
thousands of persons simply cannot afford to serve. To require them
to do so is nothing less than the imposition upon them of extreme
hardship."
Id., p. 8.
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE REED concurs,
dissenting.
This was a suit brought by the petitioner, a salesman, against
the Southern Pacific Company for injuries suffered by him while a
passenger on one of the Railroad's trains, and attributed to the
Company's negligence. The trial was in the United States District
Court sitting in San Francisco. The jury rendered a verdict against
the petitioner.
Page 328 U. S. 226
The District Court found no ground for setting it aside and
entered judgment on the verdict. Upon full review of the trial, the
Circuit Court of Appeals for the Ninth Circuit affirmed the
judgment. 149 F.2d 783. Thus, a verdict arrived at by a jury whose
judgment on the merits the District Court has found unassailable,
which the Circuit Court of Appeals has affirmed on the merits, and
which this Court has refused to review on the merits, 326 U.S. 716,
is here nullified because of an abstract objection to the manner in
which the district judges for the Northern District of California
have heretofore generally discharged their duty, with the approval
of the reviewing judges of the Ninth Circuit, to secure appropriate
jury panels.
The process of justice must, of course, not be tainted by
property prejudice, any more than by race or religious prejudice.
The task of guarding against such prejudice devolves upon the
district judges, who have the primary responsibility for the
selection of jurors, and the circuit judges, whose review of
verdicts is normally final. It is embraced in the duty, formulated
by the judicial oath, to "administer justice without respect to
persons, and to equal right to the poor and to the rich. . . ." 1
Stat. 73, 76, 36 Stat. 1087, 1161, 28 U.S.C. § 372. But it is not
suggested that the jury was selected so as to bring property
prejudice into play in relation to this specific case or type of
case, nor is there the basis for contending that the trial judge
allowed the selective process to be manipulated in favor of the
particular defendant. No such claim is now sustained. Neither is it
claimed that the district judges for the Northern District of
California, with the approval of the circuit judges, designed
racial, religious, social, or economic discrimination to influence
the makeup of jury panels, or that such unfair influence infused
the selection of the panel, or was reflected in those who were
Page 328 U. S. 227
chosen as jurors in this case. Nor is there any suggestion that
the method of selecting the jury in this case was an innovation.
What is challenged is a longstanding practice adopted in order to
deal with the special hardship which jury service entails for
workers paid by the day. What is challenged, in short, is not a
covert attempt to benefit the propertied, but a practice designed,
wisely or unwisely, to relieve the economically least secure from
the financial burden which jury service involves under existing
circumstances.
No constitutional issue is at stake. The problem is one of
judicial administration. The sole question over which the Court
divides is whether the established practice in the Northern
District of California not to call for jury duty those otherwise
qualified but dependent on a daily wage for their livelihood
requires reversal of a judgment which is inherently without
flaw.
Trial by jury presupposes a jury drawn from a pool broadly
representative of the community, as well as impartial in a specific
case. Since the color of a man's skin is unrelated to his fitness
as a juror, negroes cannot be excluded from jury service because
they are negroes.
E.g., Carter v. Texas, 177 U.
S. 442. A group may be excluded for reasons that are
relevant not to their fitness, but to competing considerations of
public interest, as is true of the exclusion of doctors, ministers,
lawyers, and the like.
Rawlins v. Georgia, 201 U.
S. 638. But the broad representative character of the
jury should be maintained, partly as assurance of a diffused
impartiality and partly because sharing in the administration of
justice is a phase of civic responsibility.
See Smith v.
Texas, 311 U. S. 128,
311 U. S.
130.
Obviously, these accepted general considerations must have much
leeway in application. In the abstract, the Court acknowledges
this.
"The choice of the means by
Page 328 U. S. 228
which unlawful distinctions and discriminations are to be
avoided rests largely in the sound discretion of the trial courts
and their officers."
Congress has made few inroads upon this discretion. Its chief
enactment underlines the importance of avoiding rigidities in the
jury system, and recognizes that ample play must be allowed the
joints of the machinery. The First Judiciary Act adopted for the
federal courts the qualifications and exemptions, with all their
diversities, prevailing in the States where the federal courts sit.
1 Stat. 73, 88. That has remained the law. 36 Stat. 1087, 1164, 28
U.S.C. § 411. (For a collection of federal statutes regulating the
composition and selection of jurors,
see 37 Harv.L.Rev.
1010, 1098, 1100.) We would hardly have taken this case to consider
whether the federal court in San Francisco deviated from the
requirements of California law, and nothing turns on that here. But
it is not without illumination that, under California law, all
those belonging to this long string of occupations are exempted
from jury service: judicial, civil, naval, and military officers of
the United States or California; local government officials;
attorneys, their clerks, secretaries, and stenographers; ministers;
teachers; physicians, dentists, chiropodists, optometrists, and
druggists; officers, keepers, and attendants at hospitals or other
charitable institutions; officers in attendance at prisons and
jails; employees on boats and ships in navigable waters; express
agents, mail carriers, employees of telephone and telegraph
companies; keepers of ferries or tollgates; national guardsmen and
firemen; superintendents, engineers, firemen, brakemen, motormen,
or conductors of railroads; practitioners treating the sick by
prayer. California Code of Civil Procedure, § 200.
Placed in its proper framework, the question now before us comes
to this: have the district judges for the Northern District of
California, supported by the circuit judges of
Page 328 U. S. 229
the Ninth Circuit, abused their discretion in sanctioning a
practice of not calling for jury duty those who are dependent upon
a daily wage for their livelihood?
The precise issue must be freed from all atmospheric innuendoes.
Not to do so is unfair to the administration of justice, which
should be the touchstone for the disposition of the judgment under
challenge, and no less unfair to a group of judges of long
experience and tested fidelity. If workmen were systematically not
drawn for the jury, the practice would be indefensible. But concern
over discrimination against wage earners must be put out of the
reckoning. Concededly, those who are paid weekly or monthly wages
were placed on the jury lists. And that no line was drawn against
the wage earners because they were wage earners, and that there was
merely anticipatory excuse of daily wage earners, is conclusively
established by the fact that the wives of such daily wage earners
were included in the jury lists. As to any claim of the operation
of a designed economic bias in the method of selecting the juries,
the Circuit Court of Appeals rightly found
"no evidence that the persons whose names were in the box, or
the persons whose names were drawn therefrom and who thus became
members of the panel, were 'mostly business executives or those
having the employer's viewpoint.'"
149 F.2d 783, 786.
"When the question is narrowed to its proper form, the answer
does not need much discussion. The nature of the classes excluded
was not such as was likely to affect the conduct of the members as
jurymen, or to make them act otherwise than those who were drawn
would act. The exclusion was not the result of race or class
prejudice. It does not even appear that any of the defendants
belonged to any of the excluded classes. The ground of omission, no
doubt, was that pointed out by the state court -- that the business
of the persons omitted was such that either they
Page 328 U. S. 230
would have been entitled to claim exemption or that probably
they would have been excused."
So this Court, speaking through Mr. Justice Holmes, answered a
related question in
Rawlins v. Georgia, 201 U.
S. 638,
201 U. S. 640.
And the justification for the answer applies to the present
situation.
It is difficult to believe that this judgment would have been
reversed if the trial judge had excused, one by one, all those wage
earners whom the jury commissioner, acting on the practice of trial
judges of San Francisco, excluded. For it will hardly be contended
that the absence of such daily wage earners from the jury panel
removed a group who would act otherwise than workers paid by the
week, or the wives of the daily wage earners themselves. The
exclusion of the daily wage earners does not remove a group who
would, in the language of Mr. Justice Holmes, "act otherwise than
those who are drawn would act." Judged by the trend of census
statistics, laborers paid by the day are not a predominant portion
of the workers of the country.
See Sixteenth Census of the
United States, 1940, Population, Vol. III, The Labor Force, Part 2,
pp. 290
et seq. It certainly is too large an assumption on
which to base judicial action that those workers who are paid by
the day have a different outlook psychologically and economically
than those who earn weekly wages. In the language of Mr. Chief
Justice Hughes, "Impartiality is not a technical conception. It is
a state of mind."
United States v. Wood, 299 U.
S. 123,
299 U. S. 145.
And American society is happily not so fragmentized that those who
get paid by the day adopt a different social outlook, have a
different sense of justice, and a different conception of a juror's
responsibility than their fellow workers paid by the week. No doubt
the insecurities of a system of daily earnings, or generally of
wages on less than an annual basis, raise serious problems, as
does, of course, also the question of guaranteed wage plans.
See the letter of President Roosevelt to the Director of
War Mobilization, James F. Byrnes, on the date of March 20, 1945,
carrying out the suggestion of a report to the President by the War
Labor Board for the creation of a Commission to study the
Page 328 U. S. 231
question of guaranteed wage plans.
And see Basic Steel
Case, 19 W.L.B. 568, 653
et seq.; NWLB Research and
Statistics Report No. 25, Guaranteed Employment and Annual Wage
Plans (1944). But these are matters quite irrelevant to the problem
confronting district judges in dealing with the present plight of
daily wage earners when called to serve as jurors and the power of
the judges, as a matter of discretion, to excuse such daily wage
earners from duty.
For it cannot be denied that jury service by persons dependent
upon a daily wage imposes a very real burden. Judge John C. Knox,
Senior District Judge of the Southern District of New York, thus
described the problem:
". . . when jurors' compensation is limited to $4 per day, and
when their periods of service are often protracted, thousands upon
thousands of persons simply cannot afford to serve. To require them
to do so is nothing less than the imposition on them of extreme
hardship."
"With respect to the item last-mentioned, it is easy to say that
jury duty should be regarded as a patriotic service, and that all
public spirited persons should willingly sacrifice pecuniary
rewards in the performance of an obligation of citizenship. With
that statement I am in full accord, but it does not solve the
difficulty. Adequate provision for one's family is the first
consideration of most men. And if, with this thought predominant in
a man's mind, he is required to perform a public service that means
a default of an insurance premium, the sacrifice of a suit of
clothes,
Page 328 U. S. 232
or the loss of [his] job, he will entertain feelings of
resentment that will be anything but conducive to the rendition of
justice. In other words, persons with a grievance against the
Government or who serve under conditions that expose them to
self-denial are not likely to have the spiritual contentment and
mental detachment that good jurors require."
Hearings before H.R. Committee on the Judiciary on H.R. 3379,
H.R. 3380, H.R. 3381, 79th Cong., 1st Sess. (1945) 8.
No doubt, in view of the changes in the composition and
distribution of our population and the growth of metropolitan
areas, a reexamination is due of the operation of the jury system
in the federal courts. Just as the federal judicial system has been
reorganized and administratively modified through a series of
recent enactments (
see Act of September 14, 1922, 42 Stat.
837, 838, 28 U.S.C. §§ 218
et seq.; Act of February 13,
1925, 43 Stat. 936, 28 U.S.C. §§ 41
et seq.; Act of August
7, 1939, 53 Stat. 1223, 28 U.S.C. §§ 444
et seq.,) the
jury system, that indispensable adjunct of the federal courts,
calls for review to meet modern conditions. The object is to devise
a system that is fairly representative of our variegated
population, exacts the obligation of citizenship to share in the
administration of justice without operating too harshly upon any
section of the community, and is duly regardful of the public
interest in matters outside the jury system. This means that the
many factors entering into the manner of selection, with
appropriate qualifications and exemptions, the length of service
and the basis of compensation must be properly balanced. These are
essentially problems in administration calling for appropriate
standards flexibly adjusted.
Wise answers preclude treatment by rigid legislation or rigid
administration. Congress has devised the appropriate
Page 328 U. S. 233
procedure and instrument for making these difficult and delicate
adjustments by its creation, in 1922, of the Conference of Senior
Circuit Judges. The Conference, under the presidency of the Chief
Justice of the United States, is charged with the duty of
continuous oversight of the actual workings of the federal judicial
system, and of meeting disclosed needs, either through practices
formulated by the Conference, or, when legislation is necessary or
more appropriate, through proposals submitted to Congress.
See 40 Harv.L.Rev. 431. That is precisely the course that
has been followed in regard to the inadequacies in the operation of
the federal jury system. In September, 1941, the late Chief Justice
brought the matter before the Conference. As a result, Mr. Chief
Justice Stone appointed a committee of experienced district judges,
see Report of the Judicial Conference (1941) 16, under the
chairmanship of Judge Knox who, because of the length and richness
of his experience in the busiest district of the country, brought
unusual equipment for devising appropriate reforms. In September,
1942, the Committee reported, Report to the Judicial Conference of
the Committee on Selection of Jurors (1942) 1, and submitted
proposals for legislation.
Id. at 44, 62, 107. Bills to
carry out these recommendations were introduced in the Senate on
January 11, 1944, S. 1623, 1624, 1625, 78th Cong., 2d Sess., and in
the House on June 5, 1945, H.R. 3379, 3380, 3381, 79th Cong., 1st
Sess. Hearings were had upon the House Bills on June 12 and 13,
1945, and action on them is now pending.
The Court now deals by adjudication with one phase of an organic
problem, and does so by nullifying a judgment which, on the record,
was wholly unaffected by difficulties inherent in a situation that
calls for comprehensive treatment, both legislative and
administrative. If it be suggested that, until there is
legislation, this decision will be
Page 328 U. S. 234
the means of encouraging the district judges to uncover a better
answer than they have thus far given to a lively problem, an
appropriate admonition from the Court would accomplish the same
result, or common action regarding the practice now under review
may be secured from the Conference of Senior Circuit Judges. To
reverse a judgment free from intrinsic infirmity and perhaps to put
in question other judgments based on verdicts that resulted from
the same method of selecting juries reminds too much of burning the
barn in order to roast the pig.
I would affirm the judgment.