Courts are America’s most insulated political institutions. They’re insulated because they are the branch of government furthest removed from the sovereign people. Federal courts are especially removed: judges are not elected but are instead appointed by the President who himself is elected indirectly. Following their appointment, judges are then confirmed by the Senate, meaning they are three steps removed from the popular source of authority. 

Some states appoint their judges, removing them one step from electors, while others operate in a mixed regime where judges are elected at certain intervals, but appointed when an opening emerges. These systems are closer to the people, but judges still operate at a significantly greater distance than either representatives or many executive officers. They are harder to remove—and often elected more infrequently.

Many view this bulwark of counter-majoritarianism favorably. They claim it keeps our political and judicial house in order, grounding the principle of judicial supremacy where the Constitution means exactly what a judge says. This limits potential external interference in judges’ decision-making.

Today’s myopic focus on judges blinds us to the presence of the most important party in the courtroom, the group wearing neither black robes nor, increasingly, a tie. That is the jury. 

For all our focus on black-robed counter-majoritarianism, we find that the role of judges, while important in the public debates surrounding ratification of the Constitution, was less fraught and impassioned than the discussion about juries. The jury issue was one of a handful that threatened to derail the constitutional process. Writers in the constitutional debate constantly fretted about the proposed Constitution’s restriction of the right to a jury trial to criminal proceedings. This pressure was so intense, that the guarantee to a civil jury trial right would find prominence in the Seventh Amendment, a rare, single-subject amendment that does nothing other than secure the right to trial by jury.

Yet, the jury remains uniquely neglected today as an institution. Not only are jury trials increasingly rare, but court procedures both on the federal and state levels do everything they can to discourage jury trials, especially civil jury trials, which have often been seen, especially in the progressive era, as “inefficient” or un-modern.

In pursuit of efficiency, courts have created and reinforced mechanisms like Summary Judgment, where judges declare an issue to be legal and thus subject to a judge’s exclusive jurisdiction rather than a jury’s. (In our system, judges determine questions of law while juries determine questions of fact.) These tools enable (often require) judges to favor their own decision-making and cut the juries out of the judicial process.

The Founders recognized this hair-splitting of the Fact-Law Dichotomy and its consequent threat to justice when discussing the appellate jurisdiction of the Supreme Court in both “fact and law.” Timoleon wrote that:

In settling and adjusting a question of fact, when intrusted (sic) to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder.

Specifically addressing the dangers of Summary Judgment-like manipulation, Federal Farmer argued that:

It is a very dangerous thing to vest in the same judge power to decide on the law, and also general powers in equity; for if the law restrains him, he is only to step into his shoes of equity, and give what judgment his reason or opinion may dictate.

Put simply, judges, when they can, tend to transmute questions of fact into issues of law to increase their control over the judicial process at the expense of juries. Such is the modern experience. 

To illustrate, consider a typical fraudulent misrepresentation case in which the verdict turns on the question of whether the person accused of fraud knew what they said was false. Normally this knowledge is a question of fact, which means that a jury would have to determine it. If, however, a judge can determine that “no reasonable jury” could find that the person didn’t know it was false, or could show that, for some reason, the person’s knowledge doesn’t matter, then the judge can decide the case on “Summary Judgment” and dispose of it without a jury. This two-step, determining either that a fact doesn’t matter or that it is so clear it needn’t go to the jury, are the two primary ways that cases are prevented from reaching juries.

The solution to these unjust manipulations was robust protection for the trial by jury “[wh]ere therefore a competent number of sensible and upright jurymen, chosen from among those of middle rank, will be found the best investigators of truth, and the surest guardians of public justice.” 

The jury is the only entity in court that represents the American sovereign: the people.

Summary Judgment is far from the only prejudice against the jury trial. Courts enforce extended discovery processes whose purpose is in part to encourage pre-trial settlement by converting lawyers into jurors weighing the merits of their own cases. This is a dubious practice, just as if a judge were permitted to sit in judgment over his own case, for lawyers often overestimate chances of victory, especially if they have an interest in the outcome (a contingency-fee agreement, for example). Today’s procedure requires parties to mediate (sometimes multiple times) until they are often compelled into settlement by cost and exhaustion. Even when jury trials are reached, it might take half a decade to get there at which point it’s often not worth litigating cases valued even in the low hundreds of thousands of dollars because the fees dwarf the underlying amount. 

There’s historical precedent for these problems. In England, as in America before twentieth-century court reforms, there were two kinds of courts: equity and law. Equity courts had extensive pre-trial procedures that resemble today’s discovery processes. They never involved a jury. While law courts had extensive pleading requirements, pre-trial processes were limited and always involved a jury. Courts at law had much shorter times to decisions and were actually much more efficient than courts at equity, whose languid pace was the object of infamous, mocking ire in works like Dickens’s Bleak House. 

It wasn’t just Dickens who lamented the injustice of equitable delay. The Founders also knew this problem well. As dissent in the Pennsylvania Convention put it, “The lengthy proceedings of the civil (equity) law courts in the chancery of England, and in the courts of Scotland and France, are such that few men of moderate fortune can endure the expence of; the poor man must therefore submit to the wealthy. Length of purse will too often prevail against right and justice.” 

The Founders’ solution to inequitable equitable delay was to reinforce the right to a jury trial at law.

Nevertheless, in the 1920s and ’30s, the height of progressivism, American legal scholars decided to make the American legal system more efficient and “equitable,” eliminating, as far as possible, the jury’s role by eliminating, as far as possible, the trial as an institution of American justice, replacing legal with equitable procedures. The goal was to simplify the often complex and sometimes convoluted system of pleadings that defined law courts. 

The reformers thus created Modern Procedure involving the discovery, pre-trial motions, and Summary Judgment described above. The reformers hoped to gain the advantages of equity while eliminating the complexity of common law pleading, theoretically benefitting from both systems.

Far from gaining the advantages of both courts, we instead won the booby prize, gaining their respective failures. 

In both state and federal courts today, discovery and pretrial motions dwarf litigation of the merits. Pleadings, once thought to be simplified by Modern Procedure, are byzantine in complexity so that in federal courts, where one must sometimes make a filing to request to make a filing, most cases are resolved entirely by pleadings (viz. pre-trial motions) or are rejected based on arcane points of procedure, as in the worst of yesterday’s law courts.

What this process lost in efficiency, it sadly also lost in republican virtue.

Legal reformers once mocked civil jury trials as a kind of pearls-before-swine justice where the rubes of the community rule on the arguments of their learned elites. But the Founders understood this process differently, seeing the jury as key to constraining the action of courts otherwise far removed from the popular political process. 

To cite Federal Farmer again:

The trial by jury [is among] those fortunate inventions which have procured [for the people] in this country, their true proportion of influence, and the wisest and most fit means of protecting themselves in the community. Their situation, as jurors and representatives, enables them to acquire information and knowledge in the affairs and government of the society; and to come forward, in turn, as centinels (sic) and guardians of each other.

In one of his most famous essays, Ralph Lerner developed this argument, showing that early Supreme Court judges, riding circuit through the colonies, functioned essentially as teachers to the American people of their civic, republican responsibilities. At this time, federal judicial proceedings were remarkably public, happening in taverns and other common areas. The proceedings attracted large crowds who watched their new government directly through court procedures. Thus, when the justices spoke to the jurors, they also spoke to the crowd. 

During a proceeding, juries are periodically instructed by judges on things they must do. These instructions detail how the jury should perform its function and the law the jury must consider when deliberating. 

Lerner observed that when the justices provided these instructions, they also were required to teach the jurors about the new republic, the centrality of law, and the unique and important role that the jurors themselves played. The jurors needed to understand that they, in sitting in their duties effectively, became the embodiment of the Republic, that common, popular thing. 

Sitting jurors are still the proper embodiment of the Republic. The jury is the only entity that everyone, including the judge, rises for when they enter the court. In functional terms, the jury also binds the judge’s scope as an interpreter of the law, for “when once the fact is ascertained, the law must, of course redress it. This, therefore, preserves in the hands of the people that share which they ought to have in the administration of public justice.” 

The jury’s nature reflects its centrality, being selected randomly from the people of the vicinage, coming as closely as a limited number of people can to represent the whole. In other words, the jury is the only entity in court that represents the American sovereign: the people.

For many, service on a jury is the only time they will exercise a public charge. For those who don’t serve in the military; work as peace officers; hold elected, appointed, or government office; or otherwise bear the burden of public service (that is the majority of Americans), jury duty is their only opportunity to know what duty in service of the republic means, and to hold the awesome power of government over their fellow citizens. It is their moment to be civically virtuous.

In our system, where we have historically rejected the ability of elites to determine these moral questions for American citizens, we entrust those considerations to the people as part of their exercise of sovereignty. It is the people who decide them. It is the people where moral authority rests and it is the people who comprise a jury and create truly efficient, republican justice.