MR. JUSTICE STEWART delivered the opinion of the Court.
The appellants, Negro citizens of Greene County, Alabama, commenced this class action against officials charged with the administration of the State's jury-selection
Alabama's jury-selection procedure is governed by statute. Ala. Code, Tit. 30, § 1 et seq. (1958 and Supp. 1967). The Governor appoints a three-member jury commission for each county. §§ 8-10. The commission employs a clerk, § 15, who is charged with the duty of obtaining the name of every citizen of the county over 21 and under 65 years of age, together with his occupation and places of residence and business. § 18. The clerk must "scan the registration lists, the lists returned to the tax assessor, any city directories, telephone directories and any and every other source of information from which he may obtain information . . . ." § 24. He must also "visit every precinct at least once a year
The District Court's further findings demonstrated the impact of the selection process on the racial composition of Greene County juries. According to the 1960 census, Negroes composed three-fourths of the county's population. Yet from 1961 to 1963 the largest number of Negroes ever to appear on the jury list was about 7% of the total. The court noted that in 1964 a single-judge federal district court had entered a declaratory judgment setting forth the duties of the jury commissioners and their clerk under Alabama law, instructing them not to pursue a course of conduct operating to discriminate against Negroes, forbidding them to employ numerical or proportional limitations with respect to race, and directing an examination of the jury roll for compliance with the judgment.
The District Court found that "there is invalid exclusion of Negroes on a racially discriminatory basis." It enjoined the jury commissioners and their clerk from systematically excluding Negroes from the jury roll, and directed them "to take prompt action to compile a jury list . . . in accordance with the laws of Alabama and . . . constitutional principles"; to file a jury list so compiled within 60 days, showing the information required by Alabama law for each potential juror, together with his race and, if available, his age; and to submit a report setting forth the procedure by which the commission had compiled the list and applied the statutory qualifications and exclusions.
The court declined, however, either to enjoin the enforcement of the challenged Alabama statutory provisions or to direct the Governor to appoint Negroes to the jury commission. From these rulings the appellants took a direct appeal to this Court pursuant to 28 U. S. C. § 1253. We noted probable jurisdiction. 393 U.S. 1115.
This is the first case to reach the Court in which an attack upon alleged racial discrimination in choosing juries has been made by plaintiffs seeking affirmative relief, rather than by defendants challenging judgments of criminal conviction on the ground of systematic exclusion of Negroes from the grand juries that indicted them,
On the merits, the appellants argue that the District Court erred in refusing to invalidate the Alabama statute requiring the jury commissioners to select for jury service those persons who are "generally reputed to be honest and intelligent and . . . esteemed in the community for their integrity, good character and sound judgment. . . ." Ala. Code, Tit. 30, § 21 (Supp. 1967). The appellants say § 21 is unconstitutional on its face because, by leaving Alabama's jury officials at large in their selection of potential jurors, it provides them an opportunity to discriminate on the basis of race—an opportunity of which they have in fact taken advantage.
While there is force in what the appellants say, we cannot agree that § 21 is irredeemably invalid on its face. It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors.
Statutory provisions such as those found in § 21 are not peculiar to Alabama, or to any particular region of the country. Nearly every State requires that its jurors be citizens of the United States,
Again, in Smith v. Texas,
No less can be said of the statutory standards attacked in the present case. Despite the overwhelming proof the appellants have adduced in support of their claim
The appellants also attack the composition of the Greene County jury commission. They urge that the record demonstrates the causal relation between the conceded absence of Negroes from the commission for at least the past decade and the systematic racial discrimination in the selection of potential jurors established before the District Court. It is argued that even the best-intentioned white jury commissioners are unlikely to know many Negroes who satisfy the statutory qualifications and that white jury officials in Alabama generally regard Negroes as incapable of satisfying the prerequisites for jury membership. Having shown a course of continuing and consistent disregard of statutory and constitutional standards on the part of the Greene County jury commissioners and the clerk, the appellants contend that if the discretionary provisions of § 21 are to remain the law, it is essential that the jury commission be representative of the community in which it functions, particularly in an area such as Greene County, where Negroes constitute a majority of the population. The District Court erred, the appellants say, in not ordering the Governor of Alabama to appoint Negroes to the Greene County jury commission.
For present purposes we may assume that the State may no more exclude Negroes from service on the jury commission because of their race than from the juries themselves. But the District Court found the appellants had shown only that for many years the jury commission had been composed entirely of white men, and concluded that without more the appellants' attack failed for want of proof. We think that ruling was correct. Quite apart from the problems that would be involved in a federal court's ordering the Governor of a State to exercise his discretion in a particular way, we cannot say on this record that the absence of Negroes from the Greene County jury commission amounted in itself to a prima facie showing of discriminatory exclusion. The testimony before the District Court indicated that the Governor had appointed no Negroes to the Greene County commission during the 12 years preceding the commencement of suit. But the appellants' trial counsel conceded that he could not prove his charge of discriminatory selection without the testimony of the Governor.
Nor can we uphold the appellants' present contention that, apart from the question of discrimination in the composition of the jury commission, the absence of Negroes from the commission compelled the District Court to order the appointment of Negro commissioners. The appellants are no more entitled to proportional representation by race on the jury commission than on any particular grand or petit jury.
There remains the question of the propriety of the relief afforded the appellants by the District Court. The court, as we have noted, enjoined the jury clerk and commissioners from systematically excluding Negroes from the Greene County jury roll, and directed them "to take prompt action to compile a jury list . . . in accordance with the laws of Alabama and . . . constitutional principles . . . ."
Accordingly, the judgment below is affirmed, without prejudice to the right of the appellants to seek modification of the District Court's decree as circumstances may require.
It is so ordered.
I concur in the judgment and opinion of the Court except insofar as it may leave an implication that this Court has the power to vacate a state governor's appointment of jury commissioners or the power to compel the governor of a State to appoint Negroes or any other persons to the office of jury commissioner. In my judgment the Constitution no more grants this Court the power to compel a governor to appoint or reject a certain individual or a member of any particular group than it grants this Court the power to compel the voters of a State to elect or defeat a particular person or a member of a particular group.
MR. JUSTICE DOUGLAS, dissenting in part.
There comes a time when an organ or agency of state law has proved itself to have such a racist mission that it should not survive constitutional challenge. The instances are not numerous in our history. But they have appeared. One was present in Louisiana v. United States, 380 U.S. 145, where a state constitution required every voter who applied to register to "be able to understand" as well as "give a reasonable interpretation" of any section of the State or Federal Constitution "when read to him by the registrar." Id., at 149. This interpretation test had a history of depriving "otherwise qualified Negro citizens of their right to vote," id., at 150, and was deemed incapable of fair application through policing by injunction. Id., at 150 n. 9. We therefore struck it down.
The District Court in the instant case held that "[t]he attack on racial composition of the [jury] commission fails for want of proof. No proof was adduced except that the commission in Greene County now is and for many years has been composed entirely of white men appointed by the governor." 298 F.Supp. 181, 192.
I cannot see any solution to the present problem, unless the jury commission is by law required to be bi-racial. In the Kingdom of Heaven, an all-white or an all-black commission could be expected to do equal justice to all races in the selection of people "generally reputed to be honest and intelligent" and "esteemed in the community for their integrity, good character and sound judgment." Ala. Code, Tit. 30, § 21 (Supp. 1967). But, where there exists a pattern of discrimination, an all-white or allblack jury commission in these times probably means that the race in power retains authority to control the
We have often said that no jury need represent proportionally a cross-section of the community.
The problem in the present case is to keep the selective process free of any racist influence. That implicates the jury commission that has continuing oversight over the operation of the jury system.
I expressed my doubts in Sellers v. Laird, 395 U.S. 950, whether under the Selective Service System an all-white
Where the challenged state agency, dealing with the rights and liberties of the citizen, has a record of racial discrimination, the corrective remedy is proportional representation. Under our Constitution that would indeed seem to be the only effective control over the type of racial discrimination long practiced in this case.
I would not write a decree that requires a governor to name two Negroes out of three commissioners. I would go no further than to strike down this jury commission system, because it does not provide for proportional representation of the two races.
Until 1966 only men were eligible for service. The blanket exclusion of women was declared unconstitutional in White v. Crook, 251 F.Supp. 401, 408-409; thereafter Alabama amended its statutes to render women eligible. § 21 (1). The trial judge may, however, excuse them from jury duty for good cause shown. § 21.
The requirement that the commission place the name of every qualified, nonexempt person on the jury roll is permissive, not mandatory, in that the jury commission's failure to do so does not, absent fraud or denial of constitutional rights, compel the quashing of the indictment or venire. Fikes v. State, 263 Ala. 89, 95, 81 So.2d 303, 309, rev'd on other grounds, 352 U.S. 191; see Swain v. Alabama, 380 U.S. 202, 207 n. 3; White v. Crook, supra, at 403 n. 6; Mitchell v. Johnson, supra, at 119 n. 5.
"No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000." 18 U. S. C. § 243.
Another phrase frequently found is "approved integrity." E. g., Conn. Gen. Stat. Rev. § 51-217 (1968); Fla. Stat. § 40.01 (3) (1965); Ill. Rev. Stat., c. 78, § 2 (1967); Kan. Stat. Ann. § 43-102 (1964); Me. Rev. Stat. Ann., Tit. 14, § 1254 (1964); Neb. Rev. Stat. § 25-1601 (1) (1964). See also Ariz. Rev. Stat. Ann. § 21-201 (1956) ("sober"); Md. Ann. Code, Art. 51, § 9 (Supp. 1968) ("integrity"); Miss. Code Ann. § 1762-02 (Supp. 1968) (not a "habitual drunkard"); Mo. Ann. Stat. § 494.010 (Supp. 1969) ("sober"); Okla. Stat. Ann., Tit. 38, § 28 (Supp. 1969) (not a habitual drunkard); Tenn. Code Ann. § 22-102 (1955) (same); W. Va. Code Ann. § 52-1-2 (1966) (same); cf. N. H. Rev. Stat. Ann. § 500:29 (1968 Repl. Vol.) (disqualification on account of "vicious habits"); Wash. Rev. Code § 2.36.110 (1959) ("unfit persons" must be excused).
"The relief to be afforded in this case will involve not only the issuance of a prohibitory injunction, but an injunction requiring immediate affirmative action by the jury commissioners by their emptying the . . . County jury box, abandoning the present . . . jury roll without any further use of either, and by their compiling a jury roll and refilling the jury box in strict accordance with the law of Alabama and the constitutional principles herein set forth. . . . In remedying this wrong, the defendants are cautioned that if they apply Alabama's qualifications for jury service—particularly that qualification relating to good character and sound judgment and that qualification concerning the requirement that prospective jurors be able to read English—these qualification requirements must be imposed fairly and objectively and administered to all regardless of race, in a nondiscriminatory manner. . . .
"Failure on the part of the defendants to comply immediately and in good faith with the requirements of this opinion and order will necessitate the appointment by this Court of a master or panel of masters to recompile the jury roll and to empty and refill the . . . jury box." (Footnotes omitted.)
"Quotas are understandably abhorrent to those seeking to do away with discrimination. A quota in this context means a ceiling. Some years ago, when colleges were accused of discriminating against religious minorities in their admission policies, they fixed quotas in percentage terms for these minorities based upon their ratio to the general population and not upon their ability to meet competitive entrance tests; these quotas then became a maximum for the admission of minority group students. The goals embodied in the Philadelphia Plan constitute a floor, not a ceiling, a minimum rather than a maximum; they constitute an agreement to enlarge job opportunities for minority workers, not restrict them; and so they are in complete conformity with the essential spirit and purpose of the Civil Rights Act." Jan. 14, 1970, p. A18.
Article 16 (4), relating to public employment, provides: "Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State." The objective of "adequate representation" applies not merely to lower government positions, but to all levels of government office. See General Manager, S. R. Co. v. Rangachari, All India Rptr. 1962 Sup. Ct. 36.
Articles 330 and 332 provide for the reservation of seats for Scheduled Castes and Scheduled Tribes, except for the Scheduled Tribes in the tribal areas of Assam, in the House of the People and the legislative assembly of every State. Article 331 provides for the nomination of not more than two members of the Anglo-Indian community if the President is of the opinion that the community is not adequately represented in the House of the People. The reservation of seats mentioned above and the nomination of members of the Anglo-Indian community is to cease after 20 years, viz., January 1970. A constitutional amendment extending that time is now before the national parliament and the legislatures of the several States. See Indian & Foreign Review, Jan. 1, 1970, p. 7.