Jury Discrimination: The Supreme Court, Public Opinion, and a Grassroots Fight for Racial Equality in Mississippi (review)
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Jury Discrimination: The Supreme Court, Public Opinion, and a Grassroots Fight for Racial Equality in Mississippi. By Christopher Waldrep. (Athens: University of Georgia Press, 2010. Pp. 325. $44.95 cloth)

Attorney Thomas Dabney Marshall entered a Mississippi prison in 1895 after he shot a political opponent to death for questioning the effete lawyer's masculinity. Marshall never denied the killing, and [End Page 293] the confession and plea agreement saved him from a death sentence, but the experience of prison transformed him. "When he went to prison for the murder," Christopher Waldrep writes in Jury Discrimination, "he came to identify with the slavelike status under which blacks were forced to live.… Once he realized he could no longer pursue political office or meaningfully ally himself with Mississippi's political elite, he decided to fight for the civil rights of blacks by challenging Mississippi's all-white jury system" (p. 207).

Waldrep's Jury Discrimination is ostensibly the tale of how this white lawyer and his African American counterpart, Willis Mollison, challenged the Jim Crow system of exclusion that defined the jury-selection system of Mississippi—and, indeed, much of the South—during the postbellum years and into the twentieth century. However, Dabney and Mollison are largely absent from much of the book, and Waldrep uses brief introductory paragraphs at the beginning of the first five chapters of the book to connect these two men and their ally, Vicksburg newspaper publisher John Cashman, to larger debates over the evolution of the American notion of "a jury of one's peers," the Fourteenth Amendment definition of citizenship, and the internal struggle of the United States Supreme Court over the nature of federalism. It is not until the sixth chapter that Marshall and Mollison reappear at any substantial length, and by then, given Waldrep's extensive discussion of the Supreme Court's hesitancy to erase any ambiguity from states' jury-selection systems, the reader understands that their mission to seat African Americans on Mississippi juries was almost hopeless. "[R]ather than a knife at the throat of Mississippi discrimination," Waldrep explains, "the U.S. Supreme Court was an ally and a legitimizer of all-white juries" (pp. 227-28).

Waldrep's examination of the southern determination to exclude African Americans from juries reveals an irony in the mindset of the region. Despite their repeated allegiance to self-determination and states' rights, southern judicial systems routinely cited rulings from their federal counterparts when it suited their own ends. As southern lawmakers and judges looked to the court as an ally, so too did the [End Page 294] court look to public opinion for guidance in reaching its rulings dealing with jury selection. Of course, as Waldrep notes, the justices used both northern and southern newspapers (presumably white-owned publications) to gauge the moods of the public, and the American public routinely allowed racial distinctions to trump fidelity to the constitutional principle of trial by jury. Competency became a thinly disguised racial watchword as northern and southern publications alike incredulously asked why states could not determine who was fit enough to serve on juries. "White people held power, and white people perceived competence as white," Waldrep writes (p. 30).

Although African Americans served on southern juries during the Reconstruction period, the final two decades of the nineteenth century saw a marked erosion of political and social power for freedmen. A series of Supreme Court decisions struck down Reconstruction-era laws that sought to offer African Americans equal political opportunities, and soon southern judicial systems were once again able to exclude blacks from juries. Despite shifts in the personnel of the Supreme Court from Reconstruction to the early twentieth century, African Americans found little hope in the nation's highest court. While the court did note that blacks rarely served on southern juries, it did not force lower courts to include them in jury pools. In fact, court rulings placed the burden on black defendants to prove that all-white juries had discriminated against them and further said that black defendants had no right at all to determine the racial composition of their juries, effectively scrapping the mythical "jury of one...