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THE RADICAL ROOTS OF THE REPRESENTATIVE JURY  
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Thomas Ward Frampton
November 30, 2025
The Yale Law Journal
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*
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*
*
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_ An intellectual and social history of how the “elite jury” lost
its hegemonic appeal, with particular emphasis on the overlooked
radicals—anarchists, socialists, Communists, trade unionists, and
Popular Front feminists—who battled to remake the jury. _

Communist Party leaders and Smith Act defendents Robert Thompson and
Benjamin Davis surrounded by pickets as they leave the Federal
Courthouse in New York City, World Telegram & Sun photo by C.M.
Stieglitz

 

ABSTRACT. For most of American history, the jury was considered an
elite institution, composed of “honest and intelligent men,”
esteemed in their communities for their “integrity,”
“reputation,” or “sound judgment.” As a result, jurors were
overwhelmingly male, jurors were overwhelmingly white, and jurors
disproportionately hailed from the middle and upper social classes. By
the late 1960s, an entirely different, democratic conception of the
jury was ascendant: juries were meant to pull from all segments of
society, more or less randomly, thus constituting a diverse and
representative “cross-section of the community.” This Article
offers an intellectual and social history of how the “elite jury”
lost its hegemonic appeal, with particular emphasis on the overlooked
radicals—anarchists, socialists, Communists, trade unionists, and
Popular Front feminists—who battled to remake the jury. This Article
offers a novel look at the history and tradition of the American jury,
demonstrating how the Sixth Amendment’s meaning was—gradually,
unevenly, but definitively—reshaped through several decades of
popular struggle, grassroots mobilization, strategic litigation, and
social-movement contestation.

AUTHOR. Professor of Law, University of Virginia School of Law. This
project profited greatly from feedback received at faculty workshops
at George Washington, Cornell, and Cardozo law schools; the
Neighborhood Criminal Law Conference, the Vanderbilt Criminal Justice
Roundtable, and the UChicago Constitutional Law Conference; and in the
Juries, Race, and Citizenship seminar at Duke Law School. I am
particularly indebted to Emily Coward, Daniel Epps, Brandon L.
Garrett, Valerie Hans, David Huyssen, Joseph E. Kennedy, Nancy J.
King, Anna Lvovsky, Kelly Orians, Mary Reynolds, Jocelyn Simonson, and
Brad Snyder. Cyrus Khandalavala and the editors of the _Yale Law
Journal_ deserve a special acknowledgment for their diligent work
strengthening and sharpening the final product. All errors are mine.

INTRODUCTION

In 1975, when the U.S. Supreme Court first held that the Sixth
Amendment right to a jury trial necessarily contemplates a jury drawn
from a “fair cross section of the community,” the outcome seemed
like a “foregone conclusion.”1
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Congress had already declared in 1968 that federal defendants had a
statutory right “to grand and petit juries selected at random from a
fair cross section of the community,”2
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and the Court was gradually recognizing that “the essential feature
of a jury obviously lies . . . in . . . community
participation and shared responsibility,” which (“probably”)
meant juries large enough to serve as “representative cross-section
of the community.”3
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Notably, as it took shape, the Supreme Court’s fair-cross-section
doctrine eschewed any focus on discriminatory intent: a jury drawn
from an unrepresentative pool generally cannot be “impartial”
within the meaning of the Sixth Amendment, regardless of whether the
disparities are attributable to a clerk’s discriminatory animus or
an accidental computer glitch.4
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True, the Supreme Court has never required any particular petit jury
to be perfectly, or even roughly, “representative” of the local
community. The Court has repeatedly rejected the suggestion that a
defendant might have the right to be judged by jurors sharing some
particular identity or trait.5
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But the ideal of the jury that constitutes a fair cross-section of the
community—or, what I will generally refer to as the
“representative jury” throughout this Article—has triumphed.6
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When a high-profile jury trial occurs, we are accustomed to asking
whether the petit jury is representative of the community from which
it is drawn.7
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Americans expect, and want, juries to mirror the demographics of the
community—if not in every case, at least in the aggregate.8
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But this conception of the jury, now common sense, is new. In 1925,
only a handful of radicals would have recognized it.9
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Indeed, for most of American history, juries were _not
_“cross-sections” of the community, nor were they legally required
to be “representative” in any meaningful sense. Most jurisdictions
limited jury service to “honest and intelligent
men . . . esteemed in the community for their integrity, good
character and sound judgment.”10
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Judges, jury commissioners, and “key men” tasked with identifying
suitable jurors populated their lists with upstanding citizens who, in
their minds, satisfied these subjective statutory requirements and
were “above average” in every regard. The predictable result:
jurors were men, jurors were white, and jurors disproportionately
hailed from the middle and upper social classes.11
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As Judge Learned Hand wrote in 1950, defendants could repeat the
phrase “cross-section” ad nauseum, but it was “idle to talk of
the justness of a sample, until one knows what is the composition of
the group which it is to represent.”12
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Historically, jurors were citizens possessing “intelligence,
character and general information,” so if a method of summoning
jurors “resulted in weighting the list with the wealthy” (a
disproportionate number of whom supposedly boasted such qualities),
surely it could not be unlawful.13
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More recently, Justice Thomas has made a related point: the
constitutional requirement that juries be drawn from a representative
cross-section of the community “seems difficult to square with the
Sixth Amendment’s text and history.”14
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The representative jury is not the inheritance of some unbroken
tradition, but rather a deliberate, relatively recent departure from
it.

To be sure, the democratic promise of a jury as a body of one’s
“peers” dates to the Magna Carta. “urors and voters were
conceptualized as complementary legislators” at the Founding,15
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with the jury box giving “the common people [as jurors]” a
mechanism to wield control in the judiciary.16
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Throughout the nineteenth century, criminal defendants, often racial
minorities and women, protested that unrepresentative juries denied
them their basic constitutional rights.17
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But the “elite jury” still reigned.18
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In American law and culture, little incongruity existed between the
idea of a “jury of one’s peers” (or the “impartial” jury
guaranteed by the Sixth Amendment) and the dominant practice of elite
juries.19
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And democratizing the jury box by taking affirmative steps to include
those who lacked the superior qualities expected of jurors struck many
as nonsensical.20
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So, what changed? How did our popular, common-sense understanding of
the jury shift so dramatically over such a short period of time?

There are standard ways of answering these questions. The most
superficial might stress the relatively late dates of landmark Supreme
Court cases democratizing the jury—_Taylor v. Louisiana _in 1975 and
_Batson v. Kentucky _in 1986, for example—and view these opinions
exclusively as downstream (and belated) fruits of “the civil rights
movement of the 1960s ca up with the jury.”21
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On this view, the law of the jury is something of a backwater, with
the most important civil-rights developments occurring in the realms
of public education, voting, employment, or public accommodations. A
more nuanced, though still top-down, doctrinal account might locate
the seeds of the Supreme Court’s mature “fair-cross-section”
jurisprudence in cases decided somewhat earlier.22
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In 1940, for example, responding to an egregious record of racial
exclusion of Black jurors in Harris County, Texas, Justice Black
asserted for the majority, without citation, that “t is part of the
established tradition in the use of juries as instruments of public
justice that the jury be a body truly representative of the
community.”23
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In subsequent cases, dicta endorsing “the concept of the jury as a
cross-section of the community” began appearing in Supreme Court
opinions.24
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On occasion, the Court used its supervisory power to vacate federal
criminal convictions where incontrovertible evidence established that
wage earners25
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or women26
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had been improperly excluded from jury service as a class. After the
Warren Court incorporated the right to trial by jury against the
states in 1968,27
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it was only a matter of time before dicta from these earlier
cases—and the inchoate democratic principles they
articulated—crept into constitutional criminal procedure.

Looking beyond the Supreme Court, however, offers a far richer answer.
From such a perspective, this Article argues that the “elite jury”
lost its hegemonic appeal in significant part due to a forgotten
struggle to democratize the American jury—beginning decades before
what is classically viewed as the heyday of the Civil Rights
Movement.28
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The protagonists of this story include not only litigators affiliated
with well-known organizations like the NAACP and the ACLU, but also
left-wing radicals—anarchists, Communists, socialists, trade
unionists, and Popular Front feminists—who recognized the jury box
as an important battleground in overthrowing capitalism, dismantling
white supremacy, and expanding the horizons of twentieth-century
American democracy. Their battle to remake the jury was waged not only
in the courtroom but also through confrontational “mass defense”
campaigns in the streets, often at substantial personal risk. Lawyers
who raised jury-discrimination claims risked lynching and professional
ruin; protestors supporting their efforts were sometimes met with
police truncheons and tear gas.29
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In the short term, their combined efforts achieved mixed results in
individual cases—but they were effective in exposing the yawning gap
between America’s rhetoric of equal citizenship and the
criminal-legal system’s inegalitarian reality. In the long run, they
played a critical role in transforming a core American institution.

This Article’s basic aim, then, is to recover the role of nonelite,
nonstate actors—radical lawyers, civil-rights organizers, labor
activists, and excluded juror-citizens themselves—in enduring forms
of lawmaking. The central contribution of this Article is _not_ simply
that the Supreme Court’s fair-cross-section jurisprudence reflects
the ideological contribution of socialists or Communists, actors often
regarded as external or even hostile to American democracy.30
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Nor does this Article contend that radical activists were the
representative jury’s sole architects; the fair-cross-section
requirement was propelled by a broad array of social, political, and
legal developments alongside those this Article foregrounds.31
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Instead, this Article demonstrates that these radical litigants and
the masses they mobilized—and, in particular, their engagements with
the legal institutions they viewed with profound skepticism—comprise
a missing and indispensable vantage point from which to understand the
doctrine’s development. Following Lani Guinier and Gerald Torres,
this Article’s genealogy of the fair-cross-section doctrine is
offered as a “demosprudential” case study in how popular
participation and collective action—not just courts or
legislatures—influenced cultural understandings of the jury, the
development of legal norms, and, eventually, constitutional law.32
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Put slightly differently, while radical lawyers and high-profile
criminal cases play an important role in this story, this Article is
fundamentally concerned with how the Sixth Amendment’s meaning
was—gradually, unevenly, but definitively—reshaped through several
decades of popular struggle, grassroots mobilization, strategic
litigation, and social-movement contestation.

This Article proceeds in five parts. Part I is a prelude of sorts,
briefly introducing the American jury circa 1925. It surveys the state
of the law, the composition of juries in the real world, and the
increasingly contested social understandings of what the jury _ought
_to be. During the 1920s, the embattled American labor movement
modeled an alternative vision of the jury: in high-profile trials,
unions would deploy racially diverse “labor juries” to monitor
proceedings from the audience, eventually deliberating and rendering
their own verdicts (which often conflicted with those returned by the
bourgeois juries of the courts).33
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The post-World War I crackdown on Communists, anarchists, and other
labor radicals, Part I argues, helped crystallize the importance of
public “mass defense” campaigns and heightened the salience of
jury-selection practices to those struggling to transform American
society. Toward the decade’s end, as Communists came to recognize
that white Southerners were “us the criminal justice system to
enforce their political economy,”34
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the jury box became a central battleground for larger fights over
citizenship, white supremacy, and economic inequality.

Part II focuses on the work of the International Labor Defense (ILD),
a Communist-backed “mass defense” organization that emerged from
the labor battles surveyed in Part I. While the ILD’s efforts on
behalf of the Scottsboro Boys in Alabama are well known,35
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its other major cases from the era have been overlooked, and the
organization’s critical role in repeatedly pressing
jury-discrimination claims, including in the Scottsboro case itself,
has received no scrutiny whatsoever. Across the country, from
Maryland36
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to Georgia,37
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the ILD established itself as the country’s most militant champion
of Black citizens’ rights in the early 1930s, in significant part by
scoring key legal victories against the all-white jury.38
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Apart from demonstrating that such legal claims _could _be
successfully brought, even in the Deep South, the Communists’ daring
assaults on the all-white jury—and their inflammatory denunciations
of their rivals—prodded more established groups like the NAACP to
begin raising similar challenges, too.39
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But in the early years, it was the ILD that forced open a space for
jury-discrimination claims in both the courts and the country’s
political imagination—often through confrontational “mass
defense” tactics that the NAACP eschewed.

Part III turns to the prosecution and ultimate execution of Odell
Waller, a Black sharecropper who shot and killed his white landlord in
1940. There are no historical markers commemorating Waller’s case in
the town of Gretna, Virginia, today, but at the time, Waller was a
household name across America. On the eve of his execution in 1942,
Harlem went dark as residents turned out their lights in protest, and
twenty thousand supporters rallied to save his life inside Madison
Square Garden.40
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Behind the scenes, Eleanor Roosevelt was lobbying Justice Frankfurter
on Waller’s behalf, and President Franklin D. Roosevelt secretly
appealed to Virginia’s governor to spare his life.41
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In many ways, the campaign to save Waller resembled the ILD’s
efforts described in Part II: Waller was originally defended by a tiny
Trotskyite group and later by the more mainstream socialists of the
Workers Defense League (WDL); organizers embraced a “mass defense”
strategy, litigating their cause both in court and in the streets; and
the appeals in the capital case turned on a jury-discrimination claim.
But whereas the ILD’s campaigns in the 1930s focused exclusively on
race, Odell Waller’s appeals challenged Virginia’s use of
“poll-tax juries,” which excluded both Black _and_ poor white
citizens. The unprecedented use of the Equal Protection Clause to
attack wealth-based legal discrimination thus advanced a more
capacious understanding of what it meant for a jury to reflect a
“fair cross-section of the community.” And it put a national
spotlight on Virginia’s longstanding practice of limiting the
political rights of the poor, raising uncomfortable questions about
the United States’s commitment to democracy at home as the country
geared up to fight totalitarianism abroad.42
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On the other side of World War II, jury-selection practices once again
played a central role in the country’s highest-profile trial: the
1948-1949 conspiracy prosecution of the leaders of the Communist Party
USA (CPUSA). Part IV revisits the Foley Square Trial, today best
remembered as a landmark free-speech case in which the Supreme Court
upheld the Smith Act against a First Amendment challenge.43
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But for its first eight weeks, the prosecution was derailed by the
most comprehensive challenge to jury-selection practices ever seen in
an American courtroom, going far beyond the type of discrimination
claims at issue in Parts II and III. The Communists alleged that the
ad hoc method of summoning jurors in the Southern District of New York
(SDNY) resulted in the unconstitutional underrepresentation of the
“poor” and “propertyless”; manual workers; residents of “low
rent” neighborhoods; “Negroes and other racial and national
minorities”; women; Communists; and a variety of other groups.44
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In effect, the Communists asserted a constitutional right to a jury
that was a true cross-section of New York, and they compiled droves of
evidence demonstrating how SDNY’s juries fell short of this ideal.
Once again, the proponents of the representative jury lost the
immediate battle. The Communists’ “attack on the jury system,”
however, gave pause to even the most anti-Communist liberals and
effectively prefigured the model of random jury selection that would
become federal law within two decades’ time.45
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Part V concludes by returning to Alabama, thirty years after the
Scottsboro Boys’ convictions were vacated on jury-discrimination
grounds, to reexamine another landmark case in the ascendance of the
representative jury: _White v. Crook_.46
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While the campaigns and litigation examined in Parts II through IV had
done a great deal to democratize the jury box, women were still
regularly excluded from the “cross-section of the community” that
juries were meant to reflect. Gardenia White, a Black female activist
in “Bloody” Lowndes County, Alabama, served as lead plaintiff in a
1965 class-action lawsuit that aimed to change that. The litigation
was pathbreaking in multiple regards: (1) the lawsuit was the first
time that prospective jurors themselves, as opposed to defendants, had
sued to vindicate their own rights as jurors, and (2) the plaintiffs
advanced the novel argument that the Equal Protection Clause barred
discrimination based on race _and _sex.47
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The animating theory—that sex-based discrimination and race-based
discrimination were not only analogous, but interrelated forms of
subordination48
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arguments unsuccessfully advanced by Odell Waller twenty-five years
earlier, and for good reason. The Alabama litigation was the
brainchild of a queer Black lawyer, Pauli Murray, whose decision to
enroll at Howard Law School was prompted by her work as the WDL’s
lead field organizer on the Waller campaign.49
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In early 1966, a three-judge panel sided with Murray and White; it was
the first time a federal court had held that sex-based discrimination
violated the Equal Protection Clause.

Linking these cases and campaigns, in addition to a recurring cast of
key figures, is the enduring influence of a particular form of
grassroots American radical politics—sometimes labeled Popular
Frontism—that emerged as a mass social movement in the 1930s.50
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More than an ephemeral liberal-left political alliance against
European fascism,51
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the Popular Front took shape as “a radical social-democratic
movement forged around anti-fascism, anti-lynching,
and . . . industrial unionism.”52
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It emerged in nascent forms in the United States before Moscow
abandoned the ultrasectarian posturing of the Soviet Union’s Third
Period in the early 1930s,53
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and it endured long after the Popular Front nominally ended by 1940.54
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For the people who shaped and were shaped by its culture, the Popular
Front promoted

support for a multiracial American national identity [cast by] people
of color, immigrants and radicals . . . insistence that political
and labor movements be grassroots and rank-and-file led . . . and
adherence to a revolutionary politics based in multiracial and
cross-class campaigns for race, gender, and economic justice,
simultaneously.55
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And, in many ways, the campaigns and political program of the ILD
(discussed in Part II) served not only as “the heart of the
political and artistic energies of the proletarian avant-garde” of
the 1930s,56
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but also provided strategies and an ethos that reverberated in legal
fights over the subsequent decades.57
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It should come as no surprise, then, that the figures who emerged
later in this history had formative political experiences in the jury
struggles that preceded them. The roots of the representative jury are
found in the democratic and egalitarian soil of this political milieu,
which shaped the worldview and lives of so many of this Article’s
protagonists.58
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The primary focus of this Article is to track how these efforts
reshaped the American jury, but it also illuminates how fights over
the jury box prefigured and sometimes directly influenced developments
in other areas of American law. When Euel Lee’s Communist lawyer
persuaded Maryland’s high court to vacate his murder conviction in
1931, for example, Lee successfully argued that the implicit biases of
the white judge who compiled the jury lists rendered the process
unlawful, decades before such terminology would enter popular usage.59
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Thurgood Marshall—who, as a recent law-school graduate, was
tangentially involved in the case—would use strikingly similar
language fifty-five years later in arguing for the abolition of
race-based peremptory strikes in _Batson v. Kentucky_.60
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The jury challenge made by the Communists in the Foley Square Trial
essentially anticipated the modern fair-cross-section doctrine that
would solidify within two decades’ time. And, as mentioned above,
the _Waller _and _White _cases both involved groundbreaking attempts
to expand the scope of the Equal Protection Clause to classifications
based on wealth and sex, respectively. Though largely forgotten today,
feminist activists regarded the latter as the “_Brown v. Board of
Education _for women” when it was first issued.61
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Far from a backwater, throughout the twentieth century, the law of the
jury served as a key battleground for those contesting the
subordination of workers, racial minorities, and women. It provided a
foundational site of struggle for those who understood all three
phenomena as intertwined features of American political economy.

 

1 Taylor v. Louisiana, 419 U.S. 522, 527, 535 (1975).

2 Jury Selection and Service Act of 1968, Pub. L. No. 90-274, § 101,
82 Stat. 53, 54 (codified at …

3 Williams v. Florida, 399 U.S. 78, 100 (1970).

4 Duren v. Missouri, 439 U.S. 357, 371 (1979) (Rehnquist, J.,
dissenting) (“nder Sixth Amendmen…

5 _See, e.g._, Holland v. Illinois, 493 U.S. 474, 483 (1990);
_Taylor_, 419 U.S. at 538; Fay v. New Yor…

6 _See, e.g._, People v. Wheeler, 583 P.2d 748, 759-60, 762 (Cal.
1978) (“he goal of an impartial…

7 _See, e.g._, Calder McHugh, _How Much Do We Really Know About the
Trump Jury?_, Politico Mag. (Apr. 1…

8 Philip Bump, _The Chauvin Jurors Deserve Better than Partisan
Armchair Assessments of Their Decisio…_

9 _See _Jeffrey Abramson, We, the Jury: The Jury System and the Ideal
of Democracy 99 (1994) (“The c…

10 Ala. Code § 8603 (1923); _see also _Hale, _supra _note 9, at 140
(“In the traditional view, jurors…

11 _See infra _notes 87-112 and accompanying text.

12 United States v. Dennis, 183 F.2d 201, 224 (2d Cir. 1950).

13 _Id._

14 Berghuis v. Smith, 559 U.S. 314, 334 (2010) (Thomas, J.,
concurring).

15 Richard M. Re, _Re-Justifying the Fair Cross Section Requirement:
Equal Representation and Enfranch…_

16 Jenny E. Carroll, _The Jury as Democracy_, 66 Ala. L. Rev. 825, 831
n.15 (2015) (quoting 2 Charles F…

17 _See, e.g._, Thomas Ward Frampton, _The First Black Jurors and the
Integration of the American Jury_,…

18 _See _Abramson, _supra _note 9, at 108.

19 For a rough contemporary analogue, many would recognize the federal
legislature as “representati…

20 _See, e.g._, _Veto It_, Oregonian, Mar. 4, 1937, at 10 (“It is
said . . . that the regi…

21 Abramson, _supra _note 9, at 117 (“Matters stood in this mixed
position until the civil rights mov…

22 Hale, _supra _note 9, at 193-206; Abramson, _supra _note 9, at
99-142. An important exception—one of…

23 Smith v. Texas, 311 U.S. 128, 130 (1940).

24 _See, e.g._, Glasser v. United States, 315 U.S. 60, 86 (1942).

25 _See_ Thiel v. S. Pac. Co., 328 U.S. 217, 225 (1946).

26 _See_ Ballard v. United States, 329 U.S. 187, 193 (1946).

27 Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

28 On historical accounts adopting a “long civil rights movement”
perspective, see, for example, …

29 _See infra _notes 135, 148, 185, 196, 213, 348 and accompanying
text; _see also _Gilbert King, Devil i…

30 To be sure, the frequency with which radical litigants played a key
role in important and high-pro…

31 To offer just one example, the advent of scientific polling
techniques in the late 1930s, coupled …

32 _See_ Lani Guinier & Gerald Torres, _Changing the Wind: Notes
Toward a Demosprudence of Law and Socia…_

33 _See infra _notes 66-77, 128-138 and accompanying text.

34 Gilmore, _supra _note 28, at 99.

35 _See, e.g._,_ id. _at 106-56. _See generally _James Goodman,
Stories of Scottsboro (1994) (providing the…

36 _See infra _Section II.A.

37 _See infra _Section II.B.

38 _See infra_ notes 144-244 and accompanying text.

39 _See infra _notes 249-257 and accompanying text.

40 _See infra _notes 316-320 and accompanying text.

41 _See infra _notes 330-334 and accompanying text.

42 _See generally _Mary L. Dudziak, Cold War Civil Rights: Race and
the Image of American Democracy (20…

43 Dennis v. United States, 341 U.S. 494, 516 (1951) (holding that the
First Amendment does not exten…

44 Joint Appendix at *13038-39, United States v. Dennis, 183 F.2d 201
(2d Cir. 1950) (No. 242).

45 _See _Jury Selection and Service Act of 1968, Pub. L. No. 90-274,
§ 101, 82 Stat. 53, 54-56 (codif…

46 251 F. Supp. 401 (M.D. Ala. 1966).

47 _See infra _notes 471-478 and accompanying text.

48 _See _Serena Mayeri, Reasoning from Race: Feminism, Law, and the
Civil Rights Revolution 3-4 (2011).…

49 _See infra _notes 339-341 and accompanying text. I use she/her
pronouns for Pauli Murray in this pie…

50 _See_ Reynolds, _supra _note 28, at 2-3.

51 _See _Joseph Fronczak, Everything is Possible 185 (2023) (“The
older historiographical answer, sha…

52 Michael Denning, The Cultural Front: The Laboring of American
Culture in the Twentieth Century, at…

53 Barrett, _supra_ note 51, at 533 (“The Popular Front strategy had
been evolving on a local and nat…

54 _See _Denning, _supra _note 52, at 21-27, 463-72 (discussing
periodization); Reynolds, _supra _note 28, …

55 Reynolds, _supra _note 28, at 3.

56 Denning, _supra _note 52, at 66.

57 _Id. _at 125 (“he Popular Front combined three distinctive
political tendencies: a social democ…

58 Those figures include Ben Davis, Jr., profiled in Parts II and IV,
and Pauli Murray, profiled in P…

59 _See infra _Section II.A; _see also _B. Keith Payne & Bertram
Gawronski, _A History of Implicit Social …_

60 _See _Batson v. Kentucky, 476 U.S. 79, 106 (1986) (Marshall, J.,
concurring).

61 _See infra _text accompanying note 498.
 
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