Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio
Speaker 1: Who Knows what lecks in the hearts of Men? From
Speaker 1: the Old Time radio show to later TV and movies,
Speaker 1: the shadow always sounded mysterious and secretive. Fast forward to
Speaker 1: the shadow docket, which also sounds secretive and opaque, and
Speaker 1: in a sense it is emergency orders of the Supreme Court,
Speaker 1: short and unsigned, issued outside normal procedures, without oral arguments
Speaker 1: or a full briefing, often late at night and without explanation.
Speaker 1: While the shadow docket certainly isn't new, it has grown
Speaker 1: in size and significance. Any Coney Barrett is probably the
Speaker 1: first justice to be asked to out it in your
Speaker 1: confirmation hearings. You know, the shadow docket has become a
Speaker 1: hot topic in the last couple of years. But you know,
Speaker 1: even when I was clicking on the court, it was
Speaker 1: not typical for the Court to issue opinions explaining why
Speaker 1: Sart was denied. Joining me is Steve in Plantic, a
Speaker 1: professor at the University of Checksis Law School who has
Speaker 1: written extensively about the shadow docket. Steve explained what the
Speaker 1: shadow docket is. It's a evocative term for what is
Speaker 1: usually a pretty mundane part of the Supreme Court caseload.
Speaker 1: It was coined by Chicago law professor Will bode In
Speaker 1: basically just to describe all of the orders that the
Speaker 1: Court hands down, So the non merit decision, the technical
Speaker 1: stuff that court does when controlling its docket. And I
Speaker 1: think the reason why it has become more pejorative and
Speaker 1: less evocative is because the Court in the last four
Speaker 1: or five years has been doing a lot more substantive
Speaker 1: stuff on the shadow docket, where what used to be
Speaker 1: primarily Anna Dine usual orders that nobody cared about are
Speaker 1: all of a sudden, a much larger chunk of orders
Speaker 1: having stuff into effects not just on the parties before
Speaker 1: the Supreme corport on like lots and lots of people
Speaker 1: as well. Of course, on Thursday, the Supreme Court refused
Speaker 1: to block the Texas abortion law in its shadow docket.
Speaker 1: But let's focus on the two decisions last week that
Speaker 1: ordered the Biden administration to change course, each with huge
Speaker 1: dramifications involving the migrant protection protocols known as Remain in
Speaker 1: Mexico and the c DCS eviction moratorium. What are the implications, Well,
Speaker 1: I mean, I think we saw last week with the
Speaker 1: mt P case and the eviction moratorium, just how much
Speaker 1: these rulings June can affect people. So MPP, now we're
Speaker 1: having the federal government being required to restitute immigration policies,
Speaker 1: can require potentially hundreds of thousands of style and applicants
Speaker 1: to pursue their applications from Mexico. Obviously, the eviction moratorium
Speaker 1: directly affects millions of Americans. And so I think there's
Speaker 1: sort of two pieces to the quick seek He's one
Speaker 1: is that if the court is going to be handing
Speaker 1: down decisions with such broad effects, it really needs to
Speaker 1: do a better job explaining itself. And the MP Pece
Speaker 1: cases of an example, we've got basically one sense of
Speaker 1: analysis as to why the court ordered what it did.
Speaker 1: But Jude, I think the second part is, you know,
Speaker 1: in the eviction moratory of case, where the court actually
Speaker 1: did explain itself, it still seems problematic. That's such a
Speaker 1: major issue effect that millions of people is being decided
Speaker 1: incredibly quickly, under rushed circumstances, with really only the skimpiest
Speaker 1: level of briefing, with no oral argument, and in a
Speaker 1: context where I think frankly the Court has not historically
Speaker 1: been at its best, and so I think the pressure
Speaker 1: on the justices is not just to be more transparent
Speaker 1: when handing down these rulings, but also to be more
Speaker 1: thorough and provide as much of an opportunity for involvement
Speaker 1: for plenary review, provided thorough going and explanation for what
Speaker 1: it's doing, so that it's keeping with what we tend
Speaker 1: to think of as principles of responsible judicial decision making.
Speaker 1: They're supposed to be a showing of irreparable harm to
Speaker 1: the court, right if the Court takes the case on
Speaker 1: an emergency basis. In these two cases, where was the
Speaker 1: irreparable harm if the Court didn't act, You know, the
Speaker 1: Court could have certainly waited on reinstituting the Trump Remained
Speaker 1: in Mexico policy. Well, and I think I think in
Speaker 1: both cases there actually was a pretty good argument for
Speaker 1: the Court moving. I mean, so in the MPP case,
Speaker 1: you know, the Biden administration was basically being ordered to
Speaker 1: um to rescue this policy right away. You know, if
Speaker 1: anything I said that should have augured in favor of
Speaker 1: slowing things down if I'm the Supreme Court, and so,
Speaker 1: you know, by not grant him the Biden administration's application
Speaker 1: for a stay. I think the court exacerbated that urgency
Speaker 1: and that exigency the eventually moratorium in Jude. Frankly, I
Speaker 1: think it's a harder case because I think there's harms
Speaker 1: on both sides. Um there's the obvious harms to landlords
Speaker 1: who you know, I think many of whom have had
Speaker 1: trouble recouping the funds that the government has made available
Speaker 1: to try to offset the effects the effects of the moratorium.
Speaker 1: And of course there's the obvious part of the folks
Speaker 1: who risk now being thrown on the streets. I think
Speaker 1: the problem runs much deeper than those two cases. The
Speaker 1: problem is that the Court has increasingly tilted the scales
Speaker 1: when it looks at the equities towards the party it's
Speaker 1: more sympathetic to on the merit. So that you know
Speaker 1: the fact that an mp P you have potentially hundreds
Speaker 1: of thousands of a stylum applicants who now faced the
Speaker 1: very real physical risk that comes with being in Mexico
Speaker 1: and the very real risk that it will prejudice their
Speaker 1: ability to apply for asylum. That seems to be no
Speaker 1: never mind to the Court's analysis, and I think that's
Speaker 1: the real concern is that one of two things is true.
Speaker 1: Either that's disappeared from the Court's analysis and that has
Speaker 1: problems of its own, or it's not that the Court
Speaker 1: is doing a wealthfully poor job to explain in itself.
Speaker 1: And so, you know, I think the there's sort of
Speaker 1: different layers to what people find problematic about the shadow docket.
Speaker 1: I think the lowest tending fruit is the insta fresh
Speaker 1: and explanations from the justices for why their ruling the
Speaker 1: way they are with the migrant protection protocols. There, the
Speaker 1: Court is telling the Biden administration that it has to
Speaker 1: change its policy. You know, a policy that hasn't been
Speaker 1: used in more than a year, wasn't even used at
Speaker 1: the end of the Trump administration. That seems like a
Speaker 1: big step to take in an emergency procedure. I think
Speaker 1: it's an enormous step to take. I think, you know,
Speaker 1: the tricky part here is that we saw over and
Speaker 1: over agains are on the Trump administration, the Court actually
Speaker 1: moving quite aggressively to stop lower courts that had blocked
Speaker 1: Trump administration immigration policies. That immigration is actually one of
Speaker 1: the most fertile areas of the shadow docket, or the
Speaker 1: trum administration. There were at least eleven different times where
Speaker 1: lower courts had blocked Trump immigration policies and the Supreme
Speaker 1: Court froze the lower courts injunction. So I think the
Speaker 1: irony of the MPP ruling is it really drives home
Speaker 1: just how partisans these rulings appear, and just how ideological
Speaker 1: they've become, because the same deference that the Court showed
Speaker 1: towards the executive branch when it came to immigration policy
Speaker 1: under a Republican president all of a sudden seemed to
Speaker 1: disappear when it comes to immigration policy and or democratic
Speaker 1: president and June Again, I think this goes back to
Speaker 1: the larger point, which is, if the court explained itself,
Speaker 1: it would be harder for folks to raise that concern.
Speaker 1: It would be harder for folks to level that charge.
Speaker 1: But when you couple the appearance of that kind of
Speaker 1: favoritism with the Court's refusal to actually provide an explanation,
Speaker 1: that's what makes this certainly look so insidious, whether in
Speaker 1: fact it really is. What about the fact that there
Speaker 1: isn't a full briefing in these and there aren't oral
Speaker 1: arguments in these. I mean, so you know, I think
Speaker 1: folks who are who are sort of defenders of what
Speaker 1: the Supreme Court has been doing. I think too often
Speaker 1: caricature critics like me and say that, like we just said,
Speaker 1: there shouldn't be a show doctor at all, That's just
Speaker 1: not true. I mean sense, no one disputes that there's
Speaker 1: a need for the Supreme Court to have the ability
Speaker 1: to issue emergency relief in extraordinary circumstances. I think the
Speaker 1: way that it has gotten a bit out of hands
Speaker 1: is how far that release is running beyond the parties.
Speaker 1: Where we've seen the Supreme Court already seven times this
Speaker 1: term blocked by it delt state policies and through emergency
Speaker 1: injunctions when it had only issued four of those in
Speaker 1: John Roberts's first fifty years. Is chief justice right where
Speaker 1: the Court itself is basically going out of its way
Speaker 1: not just to sort of temporarily protect the rights of
Speaker 1: the parties in a case, but actually to control government
Speaker 1: policies large while the case works its way through the court.
Speaker 1: And I think that's the part of the shadow doctors
Speaker 1: that is to me the most problematic, because that's where
Speaker 1: you have all of these transparency, legitimacy concerns It's not
Speaker 1: that we since the Court should lack the ability to
Speaker 1: issue emergency ruling. It's that we think emergency ruling should
Speaker 1: be narrowly or subscribed and not be in the business
Speaker 1: of making broad new pronouncements about the substance of federal law.
Speaker 1: Do these decisions have the same presidential authority? I mean,
Speaker 1: can courts cite them as precedent in the same way
Speaker 1: they can with regular decisions of the Supreme Court on
Speaker 1: the merits. That's another piece of the story too, is
Speaker 1: historically the Supreme Court had insisted that these kinds of
Speaker 1: rulings were not presidential, certainly, not if they came through
Speaker 1: unsigned orders, and even not to the same extent if
Speaker 1: they came with a majority opinion. And we've seen the
Speaker 1: Court run away from that this term. So there's a
Speaker 1: couple of examples in COVID cases where the Supreme Court
Speaker 1: has treated unsigned orders as precedents find them the lower courts.
Speaker 1: There's a decision from April called Tandon versus Newsom, where
Speaker 1: at the end of the unsigned majority opinion, the Court
Speaker 1: chastises the Ninth Circuit for refusing them to correctly read
Speaker 1: the tea leads of four prior unsigned orders. So yeah,
Speaker 1: I mean the justices themselves June are now treating not
Speaker 1: just the opinions that are coming out of the shadow docket,
Speaker 1: but even some of the unsigned orders as having precedential effect.
Speaker 1: You know that it's more than just Biden the parties
Speaker 1: that actually also should be followed by the lower courts.
Speaker 1: Of course, that's an enormous problem unto itself, because if
Speaker 1: all the Supreme Court is doing is given us one
Speaker 1: sentence of explanation and telling us that that's precedent Jude,
Speaker 1: it's not hard to see how people can be pretty
Speaker 1: confused about exactly what precedent it is and what the
Speaker 1: Supreme Court has actually told the lower courts to do.
Speaker 1: When did we start to see this increase in emergency
Speaker 1: orders in the shadow dockets, the up kick in emergency
Speaker 1: applications June, we really see throwing the Trump administration. And
Speaker 1: some of that is because of the Trump administration. I mean,
Speaker 1: Trump files forty one applications for emergency relief from the
Speaker 1: Supreme Court in four years, compared to a total of
Speaker 1: eight in the previous sixteen years by the Obama and
Speaker 1: Bush administrations combined. So that's the twenty old increase in
Speaker 1: applications from the federal government. But it's not just the
Speaker 1: federal governments in private party filing more and more of
Speaker 1: these applications. And I think where we really see this
Speaker 1: trend accelerate June is when Justice Kavanaugh replaced Justice Kennedy
Speaker 1: in the summer of And I think there are some
Speaker 1: pretty obvious explanations for that. You know, I think Justice Kennedy,
Speaker 1: as you know, was, if not a moderate, at least
Speaker 1: a moderate and influence on both of the sort of
Speaker 1: wings of the court to his left and his right.
Speaker 1: And with his departure, I think any procedural constraints that
Speaker 1: might have come with that went with him. And so
Speaker 1: now there's not only a solid conservative majority on the
Speaker 1: merit of these cases, but also now a staali conservative
Speaker 1: majority to use this procedural vehicle to basically effectively decide
Speaker 1: those merits. So any of the data, no matter how
Speaker 1: you slice it, you really see this phenomenon takeoff starting
Speaker 1: with the court October eighteen term. You know, Justice Kavanaugh's
Speaker 1: first on the bench. Is there a hint that some
Speaker 1: of the justices have problems with the shadow docket In
Speaker 1: the eviction case, Justice Stephen Briar referenced some of the
Speaker 1: shadow docket criticism in his dissenting opinion. He said, these
Speaker 1: questions call for considered decision making, informed by full briefing
Speaker 1: and argument. Their answers impact the health of millions. Yeah,
Speaker 1: I mean, so you know, that's I think the most
Speaker 1: Justice Briar has said, at least in an opinion, to
Speaker 1: criticize the shadow dockets. Um just the stood of my work,
Speaker 1: perhaps not surprisingly has been much more outspoken. She's written
Speaker 1: a couple of descents in these cases where she has
Speaker 1: been quite critical of the conservative majority for how it
Speaker 1: is to use the shadow docket. But you know, June,
Speaker 1: these have been and far between, and I actually think
Speaker 1: it's been you know, part of why this has been
Speaker 1: flying under the radar is because to the state of
Speaker 1: extent as the conservative justices, I think the more progressive
Speaker 1: justices are fighting these cases on their merits. And so,
Speaker 1: you know, a good example again is that Tandon religious
Speaker 1: liberty case from April, where Justice Kagan writes this incredibly
Speaker 1: powerful and incredibly sharp brief the sent about why you
Speaker 1: just couldn't agree with the Supreme Court's interpretation of the
Speaker 1: free exercise clause, but sort of allies, the fact that
Speaker 1: the Court was doing this in the context of the
Speaker 1: shadow docets we it's not supposed to UM and so
Speaker 1: I think, you know, the procedural objections are starting to
Speaker 1: get a bit louder from the left, but they've been
Speaker 1: with the exception of Justice Sodomitory, they've been pretty tame
Speaker 1: for much of the you know, sort of uptick and
Speaker 1: for much of the first couple of years of this
Speaker 1: of the rise of this pattern. What's the greatest concern
Speaker 1: Is it the lack of transparency? Is it the rushed proceedings?
Speaker 1: What's the greatest concern here for you or for other scholars? Um?
Speaker 1: It's a really good question. I think the short answer
Speaker 1: is um, all things equal. If I could be one
Speaker 1: thing would be the transparency, if the justices would just
Speaker 1: write more UM and so in that respect, I would
Speaker 1: encourage folks to put side by side the MPP decision
Speaker 1: and the eviction moratorium. You know, whatever you think of
Speaker 1: the eviction moratorium ruling, we got eight pages of explanation
Speaker 1: from the court identifying what the standard of review was,
Speaker 1: identifying why, you know, they thought that the Alabama Association
Speaker 1: of Realtors application statisfy that center of review. June. You
Speaker 1: and I might disagree with some or all of that reasoning,
Speaker 1: but at least we got it. And so you know,
Speaker 1: there's lots of other stuff I'd like to fix, but
Speaker 1: if there was one big thing, I just wish the
Speaker 1: Court would explain itself a lot more often. Not because
Speaker 1: we're going to agree with them, but because it's so
Speaker 1: much better for everybody if we at least know why
Speaker 1: the Court is doing what it's doing. Thanks Steve. That's
Speaker 1: Professor Stephen Vladdock of the University of Texas Law School.
Speaker 1: All right, Mr clinteen, let me ask you. Do you
Speaker 1: think it's a juror you would be able to set
Speaker 1: aside any prior opinion you might hold about the savings
Speaker 1: alone industry? That was a question, sir, What do I
Speaker 1: like banks? Your honor? May I have a minute place
Speaker 1: to confer with my colleagues. You may dump them. Let's
Speaker 1: get to number four six, and I'd say these number
Speaker 1: twelve except the Crosscutor's gonna be done and do it
Speaker 1: for us. In the movie The Devil's Advocate, Keyana Reeves
Speaker 1: is a lawyer using peremptory challenges to get rid of
Speaker 1: jurors without having to give a reason to the judge.
Speaker 1: It's a tool both prosecutors and defense attorneys used to
Speaker 1: get a jury they feel will be sympathetic to their case.
Speaker 1: Now Arizona is taking a bold, unprecedented step. It's eliminating
Speaker 1: peremptory challenges entirely, the first state to do so, embracing
Speaker 1: a reform proposed by Justice third Goood Marshal more than
Speaker 1: three decades ago as the only way to end racial
Speaker 1: discrimination in jury selection. Joining me as former federal prosecutor
Speaker 1: Robert Mintz, a partner macrter in English, start by telling
Speaker 1: us about jury selection and URVOI dear who asked the questions,
Speaker 1: just sort of give us the broad overview of jury selection. Sure,
Speaker 1: the selection of a jury is one of the most
Speaker 1: important phases of any criminal or civil trial because those
Speaker 1: are the individuals will ultimately decide the case. And in
Speaker 1: a criminal case, it's especially important because those are the
Speaker 1: jurors who will have to decide unanimously as to whether
Speaker 1: or not the defendant is guilty or not guilty, and
Speaker 1: ultimately may go to jail, often for a long period
Speaker 1: of time. So when you're a prosecutor and you're a
Speaker 1: defense lawyer. The selection of the jury in a criminal
Speaker 1: case is a vital part of the case. Prosecutors a
Speaker 1: defense lawyers spend a lot of time questioning jurors and
Speaker 1: trying to determine whether there is some kind of implicit bias,
Speaker 1: either for or against the defendant if you're the defense
Speaker 1: lawyer lawyer, or for or against the government if you're
Speaker 1: the prosecutor. Typically, in both criminal and civil jury trials,
Speaker 1: a court will assemble a panel of potential jurors that
Speaker 1: is much larger than the actual number of jurors needed
Speaker 1: to hear the case, and the reason for that is
Speaker 1: that there is a long process picking a jury where
Speaker 1: both lawyers from both sides of the case get to
Speaker 1: ask a series of questions to jurors to determine whether
Speaker 1: or not they believe that those jurors can be fair
Speaker 1: and impartial and can give their client, whether it's the
Speaker 1: United States if you're a prosecutor, or the state if
Speaker 1: you're a prosecutor, or whether it's the defendant if you're
Speaker 1: a defense lawyer, whether they can sit there here the
Speaker 1: evidence and make a decision solely based on the evidence
Speaker 1: that is presented in the courtroom and that their decision
Speaker 1: will ultimately not be affected by any express or even
Speaker 1: implicit biases that they may bring into the courtroom that
Speaker 1: could possibly affect their decision. So explain the challenges for
Speaker 1: cause and peremptory challenges. So. Although the rules vary from
Speaker 1: state to state, and the federal system has its own
Speaker 1: set of rules, the way the process works is that
Speaker 1: lawyers on both sides get to ask a judge to
Speaker 1: remove a juror for cause if they can articulate a
Speaker 1: reason as to why they believe that cur cannot be
Speaker 1: impartial and cannot fairly hear the evidence in the case.
Speaker 1: Peremptory challenges allow lawyers to strike a juror for no
Speaker 1: reason at all. Lawyers do not have to explain why
Speaker 1: they're striking a juror. They do not have to be
Speaker 1: able to convince the judge that the that the perspective
Speaker 1: juror may not be fair. They can simply remove a
Speaker 1: juror for any reason at all. The number of peremptory
Speaker 1: challenges available to lawyers vary depending upon the system, depending
Speaker 1: upon the state, depending upon the type of case, but
Speaker 1: for federal felony trials, for example, prosecutors may strike up
Speaker 1: to six cures for a peremptory basis, in other words,
Speaker 1: for no reason at all, while the defense may strike
Speaker 1: up to ten jurs on a peremptory basis, but under
Speaker 1: the bats In case, if it's thought that discrimination is
Speaker 1: the motive for a peremptory challenge, they can bring that
Speaker 1: to the judge. There are few constitutional limits on these
Speaker 1: peremptory challenges, but there is one constitutional limit that goes
Speaker 1: back to a case called bats And versus Kentucky, which
Speaker 1: was a Supreme Court case decided in Night six. In
Speaker 1: that particular case, a black man was charged for burglary
Speaker 1: and receipt of stolen goods. The prosecutor used these peremptory challenges,
Speaker 1: in other words, without giving any basis whatsoever to suggest
Speaker 1: that a juror would be it would not be able
Speaker 1: to impartially decide the fate of the defendant, to eliminate
Speaker 1: all four African American perspective jurors. The defendant in that
Speaker 1: case was convicted, and then in the seven to two ruling,
Speaker 1: the Supreme Court overturned the conviction and said that the
Speaker 1: prosecutor's action unconstitutionally denied the defendant his right to a
Speaker 1: fair trial and his right to equal treatment under the law.
Speaker 1: So what is a defense attorney or a prosecutor have
Speaker 1: to prove to make a bats and challenge? What happens
Speaker 1: the judge decides. So what Batson stands for is the
Speaker 1: proposition that lawyers cannot remove a juror because of that
Speaker 1: juror's race. What it means in practice is that if
Speaker 1: a defendant raises a credible claim that a juror was
Speaker 1: excluded because of that curer's race, then the burden shift
Speaker 1: to the prosecution to come forward with a neutral explanation
Speaker 1: as to why it decided to exclude a particular adjuror.
Speaker 1: At that point, it's up to the judge to determine
Speaker 1: whom to believe. The problem with that system is that
Speaker 1: prosecutors can come up with all kinds of neutral reasons
Speaker 1: why they might want to strike a juror. For example,
Speaker 1: they may believe that the juror expressed a bias against police.
Speaker 1: They may claim that a juror is inattentive, and then
Speaker 1: it's very difficult ultimately for the judge to determine whether
Speaker 1: or not there was truly a race neutral explanation for
Speaker 1: striking that curre or whether there was some racially motivated
Speaker 1: reason for trying to eliminate that juror from the case.
Speaker 1: So Bob tell us about the history of peremptories. Peremptory
Speaker 1: challenges are nothing new. In fact, they actually go back
Speaker 1: to English law into the thirteen hundreds. They were regionally
Speaker 1: put into the system in order to give criminal defendants
Speaker 1: the ability to remove jurors basically for any reason at all,
Speaker 1: and the idea was that in a criminal case, the
Speaker 1: life and the liberty of a criminal defendant was at stake,
Speaker 1: and so they should have some additional rights to exclude
Speaker 1: jurors who they think, for any reason at all, might
Speaker 1: be biased against them. When that process came to the
Speaker 1: United States, American courts didn't follow that sanctuaries old English
Speaker 1: practice of only giving peremptory strikes to defense counsel in
Speaker 1: criminal cases, and they applied it to both prosecutors and
Speaker 1: defense lawyers. So the peremptory challenges have been coming under
Speaker 1: fire for quite a while, but particularly during the George
Speaker 1: Floyd case, that peremptory challenges are often used to exclude
Speaker 1: jurors because of their race. The real controversy here is
Speaker 1: that when you look at the evidence. There are studies
Speaker 1: after studies which show that peremptory challenges result in a
Speaker 1: racially imbalanced jury. So, for example, there was a study
Speaker 1: in Arizona that showed that the proportion of wake curers
Speaker 1: seeded varied only by three percent from their representation in
Speaker 1: the population, as compared to black curs, who were underrepresented
Speaker 1: by six Similarly, Hispanics were underrepresented on juries by So
Speaker 1: the argument against the peremptory challenges that it results in
Speaker 1: a racially in balanced jury and it does not truly
Speaker 1: give a defendant the right to have a jury of
Speaker 1: his peers beside their case. So now Arizona is going
Speaker 1: to completely eliminate peremptory challenges, the first state to do so.
Speaker 1: I assume that why they're doing this is they think
Speaker 1: that by eliminating peremptory challenges, they're going to eliminate racially
Speaker 1: discriminatory juries. That seems to be the motivation here. But
Speaker 1: it's also important to point out that the elimination of
Speaker 1: the peremptory challenge really does cut both ways, because remember,
Speaker 1: defense lawyers also get to exercise peremptory challenges, and in fact,
Speaker 1: in criminal cases they get even more peremptory challenges than
Speaker 1: the prosecution does. So it really comes down to the
Speaker 1: question of which ultimately is better to give lawyers the
Speaker 1: right to strike jurors for no reason whatsoever, or to
Speaker 1: say that that is being used for some racially improper
Speaker 1: purpose and eliminate that right for both the prosecution and
Speaker 1: the defense. Now there are even defense lawyers who are
Speaker 1: not necessarily in favor of eliminating peremptory challenges, because sometimes
Speaker 1: defense lawyers may look at a juror, may look at
Speaker 1: the way they're dressed, may look at their body language,
Speaker 1: may look at the way that they've answered questions, and
Speaker 1: determine that they may not be entirely fair to their client,
Speaker 1: And with the elimination of peremptory challenges, they will no
Speaker 1: longer be able to strike those jurors, because they, like
Speaker 1: the prosecution, will have to articulate a basis in order
Speaker 1: to convince the judge as to why that particular juror
Speaker 1: may not be impartial, and that is not always evident
Speaker 1: based simply upon the answers to questions. Defense lawyers argue
Speaker 1: that it is not realistic to expect a perspective juror
Speaker 1: to candidly admit that they can't be fair in a trial.
Speaker 1: And there is something to the argument that when jurors
Speaker 1: are asked about their ability to be fair and impartial,
Speaker 1: to express views about race, or to express views about
Speaker 1: the justice system, that they jurors may be reluctant to
Speaker 1: express those personal beliefs in the context of a courtroom
Speaker 1: and in the context of a trial in front of
Speaker 1: a bunch of strangers who they don't even know. And
Speaker 1: that's the concern that those jurors may still hold some
Speaker 1: implicit biases, and it may be a bias for the government,
Speaker 1: and may be a bias for the defense. And now,
Speaker 1: without the elimination of peremptory challenges, both sets of lawyers,
Speaker 1: whether on the prosecution or the defense, will not be
Speaker 1: able to eliminate those jurors unless they can articulate to
Speaker 1: the judge some reason to believe that those jurors will
Speaker 1: not be fair and impartial, and prosecutors and defense attorneys
Speaker 1: can still eliminate jurors of color with pretextual reasons for cause.
Speaker 1: Lawyers will still have the ability to eliminate jurors for cause,
Speaker 1: and then ultimately is up to the judge to decide
Speaker 1: whether that is a legitimate reason or whether there was
Speaker 1: some improper reason to try to eliminate those jurors. So
Speaker 1: it's not to say that you cannot eliminate an African
Speaker 1: American juror or a white juror for any reason whatsoever.
Speaker 1: You have to articulate a reason as to why you
Speaker 1: believe that that person cannot be fair and impartial in
Speaker 1: order to ask them to be removed from the jury panel.
Speaker 1: And also this means that in civil cases where race
Speaker 1: may not be an issue, you no longer have those peremptories.
Speaker 1: That's exactly right. This will eliminate peremptory challenge is not
Speaker 1: only in criminal cases, but in civil cases as well.
Speaker 1: And there are cases, for example, that are not criminal
Speaker 1: where you do have lawyers who also have come out
Speaker 1: against the elimination of peremptory challenges. For instance, in medical
Speaker 1: malpractice cases where lawyers may be representing a doctor, maybe
Speaker 1: representing a hospital, and they're worried about jurors being swayed
Speaker 1: by emotion rather than the facts of the case. Those
Speaker 1: are cases where sometimes lawyers will look at the juror
Speaker 1: will look at the body language, will look at the
Speaker 1: way they're dressed, will maybe look at their background. And
Speaker 1: although those jurors may have expressed the ability to be
Speaker 1: fair and impartial, the lawyers have a feeling that they
Speaker 1: may not be entirely fair, that they may be somebody
Speaker 1: who has tilted slightly more towards the plain IFFs, and
Speaker 1: they will not be able to eliminate those particular jurors
Speaker 1: unless they can articulate a basis a cause on the
Speaker 1: record based upon the answers to the questions that those
Speaker 1: jurors gave during the void deer or the questioning process.
Speaker 1: They have to be able to point to something that
Speaker 1: was said in the courtroom to demonstrate by a preponderance
Speaker 1: of the evidence that the jury cannot render a fair
Speaker 1: and impartial verdict if they want to remove from the
Speaker 1: jury panel. So, personally, how would you feel not having
Speaker 1: a peremptory when you went to trial. Well, I think
Speaker 1: it's a difficult call, and I certainly see the evidence
Speaker 1: that the jury panels are not racially balanced, and I
Speaker 1: think in this case, what we're seeing is a decision
Speaker 1: that by eliminating peremptory challenges, we're going to get a
Speaker 1: jury that more fairly represents the community, which ultimately is
Speaker 1: what's important here. But when you're the lawyer sitting in
Speaker 1: the courtroom and you're not looking at the numbers, and
Speaker 1: you're not looking at the statistics, and you're just trying
Speaker 1: to pick a jury that you think is going to
Speaker 1: be fair and impartial and going to make a decision
Speaker 1: based solely upon the evidence that's in the best interests
Speaker 1: of your client. You do have cases where a particular
Speaker 1: juror may not have said anything but the way that
Speaker 1: they've answered questions. Sometimes, even if you're a defense lawyer
Speaker 1: in a criminal case, you look at the way a
Speaker 1: juror maybe looking at your client, and you just have
Speaker 1: a feeling that they may not be entirely fair, despite
Speaker 1: the fact that they're saying that they can be fair
Speaker 1: and impartial. And those are the kind of jurors who
Speaker 1: you would like to eliminate. With the elimination of peremptory challenges,
Speaker 1: you'll no longer be able to strike those jurors unless
Speaker 1: you can come up with some kind of a basis
Speaker 1: based upon the answers to their questions as to why
Speaker 1: you think they can't be fair and impartial. That's Robert
Speaker 1: Manson McCarter and English. And that's it for the sedition
Speaker 1: of The Bloomberg Law Show. Remember you can always get
Speaker 1: the latest legal news on our Bloomberg Lawn podcast. You
Speaker 1: can find them on Apple Podcasts, Spotify and at www
Speaker 1: dot bloomberg dot com slash podcast Slash Law. I'm June
Speaker 1: Brusso and you're listening to the m