Month: September 2025

The right to trial by jury in criminal and civil cases is enshrined in the U.S. Constitution. It’s also a critically important way in which citizens can participate in democracy.

The French thinker Alexis de Tocqueville observed early American juries at work. He noted in “Democracy in America” in 1831 that trial by jury “places the real direction of society in the hands of the governed, or of a portion of the governed, instead of leaving it under the authority of the Government.”

Yet, in a change with profound implications, juries now decide only a tiny fraction of criminal and civil cases in the U.S. The decline over time has been dramatic, triggering warnings from scholars since at least the 1920s. In 1962, when federal judicial statistics became reliable enough to track the trend, juries decided about 6% of civil cases; today that share is less then 1%.

In a recent article we wrote with our colleague Robert Peck, we described how in the 1960s a federal judge would typically preside each year over 10 or more civil jury trials – legal disputes between private parties. In 2024, the average federal judge heard only one or two civil jury trials per year.

Criminal cases, in which a defendant is accused of a crime, show a similar pattern. The average federal judge presided over roughly two jury trials in 2024.

In state courts, jury trials have likewise declined over the past decade. In most states, juries now decide just 1% to 2% of criminal and civil cases that come before the courts.

We study how juries work in practice and the jury’s institutional role in the constitutional structure. Both of us have observed how legal and policy shifts in the United States have limited the role juries, and thus citizens, play as a vital democratic check on government power.

Trials make disputes public, and jury trials allow citizens to debate the issues and return verdicts that reflect their community. That visibility and participation make the legal system more accountable and legitimate.

Replacing juries

The U.S. Founding Fathers’ long list of grievances against King George III in the Declaration of Independence included “depriving us in many cases, of the benefits of Trial by Jury.” In drafting the U.S. Constitution, they embedded juries throughout the new federal framework, for both civil and criminal cases. State constitutions likewise entrenched robust jury rights.

Early Americans thus saw jury service not merely as a procedural safeguard against overreaching government authority, but as a way to distribute the power granted by the Constitution, ensuring that ordinary citizens played an important role.

But over time, state and private actors have chipped away at that authority.

In criminal cases, the main mechanism that has diminished juries’ influence has been private bargains between prosecutors and defendants. Guilty pleas now resolve more than 90% of criminal cases nationwide, according to a 2023 American Bar Association report.

In “Punishment without Trial: Why Plea Bargaining is a Bad Deal,” legal scholar Carissa Byrne Hessick describes how defendants are pressured to plead guilty by the all-too-real threat of longer sentences if they exercise their right to a jury trial rather than accepting an offer from prosecutors. This so-called “trial penalty” has produced what some scholars refer to as an innocence problem, in which even factually innocent people rationally plead guilty.

Efficiency has a role in clearing crowded court dockets. But when almost all cases end in pleas, the legal system loses transparency and public checks on police and prosecutors’ work.

The same trend emerges in civil cases. Mandatory arbitration in consumer and employment contracts, along with legislatively imposed limits on the size of damage awards, have displaced jury determinations of liability and awards.

Procedural shifts since the 1980s also steer cases away from juries at the start. Federal and state rules of procedure are structured so that a civil jury trial is waived by default and must be affirmatively demanded.

The rise of what legal scholar Judith Resnik called “managerial judging,” where judges take a more activist role in supervising cases, channels cases toward private settlements where details are not divulged, even for those who prefer public resolution. Certain expanded pretrial procedures have also given judges the power to displace juries and terminate cases in light of their own “judicial experience and common sense,” as the U.S. Supreme Court put it in a 2008 opinion.

Although many of these changes were done in the name of efficiency, legal scholar Suja Thomas argues in her book “The Missing American Jury” that they also benefit political and economic elites by wresting away some of the power that formerly belonged to juries. The cumulative effect is fewer community judgments and more private, judicial and legislative control over outcomes.

How juries support democracy

In our view, restoring the jury to its original place within the constitutional structure would help revitalize the justice system’s democratic character.

As legal scholar Alexandra Lahav argues in her book “In Praise of Litigation,” trials make disputes public. Jurors hear evidence in open court, deliberate with other citizens about the issues and return verdicts that reflect community standards, in ways that backroom deals and private arbitration cannot.

Jury service also widens the circle of people invested in courts that work and that operate honestly. Although many people are initially dismayed when they are summoned to jury duty, most jurors become more favorable toward the courts once they serve.

These effects can reach beyond the courthouse. Some legal experts assert that restoring the jury could also spark broader democratic renewal at a time when civil society in the U.S. is under enormous strain.

This was evident in a set of studies by political scientist John Gastil and his colleagues that explored the connection between jury service and other forms of civic engagement. Examining jurors’ voting history before and after the period of jury service in seven states, they discovered that jury participation increased the likelihood of voting.

The presence of citizen participation in legal decision-making encourages civic engagement, fosters public trust and reanimates the participatory ideals on which the American republic was founded. John Adams put it well in 1774, when the British Parliament placed the judicial system of Massachusetts under royal control.

“Representative government and trial by jury are the heart and lungs of liberty,” Adams argued. “Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

Valerie P. Hans is a member of the Board of Advisors of the Civil Justice Research Initiative. Her research on juries has been funded by the National Science Foundation, National Institute of Justice, State Justice Institute, and Cornell University.

Richard Lorren Jolly is a senior fellow with the Civil Justice Research Initiative.

​Politics + Society – The Conversation

In October 2023, a group calling itself Return to the Land established its first “Whites only community” in the Ozark Mountains of Arkansas. They followed that with a second enclave nearby in 2025.

The group, which describes itself as a “private membership association” that helps groups form “European heritage communities,” plans to build four more sites, including another location in the Ozarks and two in Appalachia.

Return to the Land believes that by calling themselves a private membership association they can create a white ethnostate – a type of state in which residence is limited to white people – and legally exclude people based on race, religion and sexual orientation.

If you read the words of Eric Orwoll, the group’s co-founder, its mission is clear: “You want a white nation? Build a white town … it can be done. We’re doing it.”

As a scholar of right-wing extremism, I have examined several groups calling for a white homeland in America. The creation of a white ethnostate is often seen as an ultimate goal of such white nationalism, which argues that white people form part of a genetically and culturally superior race deserving of protection and preservation. While Return to the Land doesn’t identify as white nationalists, their statements often align with the ideology.

White ethnostates, big and small

One of the best-known plans for a white ethnostate is the Northwest Imperative, popularized by white nationalists during the 1970s and ’80s. The plan involved certain citizens taking 10% of the United States – the states of Washington, Oregon, Idaho, Wyoming and Montana – and excluding all nonwhite people from living there.

Proponents of the plan argued that these states were already majority white and contained large tracts of undeveloped land, making the territory ideal for white-only settlement. High-profile extremists of the time such as Richard Butler, Robert Mathews and David Lane supported the plan.

Still today, groups such as the Northwest Front, a white nationalist group founded in 2009 and located in the Pacific Northwest, continue to promote variations of this idea.

While the Pacific Northwest has a long history with right-wing extremist organizing, the proponents of whites-only communities have also targeted areas of the Northeast as possible locations for a white ethnostate.

In 2018, for example, Tom Kawczynski, town manager of Jackman, Maine, was fired when his views came to light, including views that have been characterized as “pro-white.”

More recently, in 2023, the People’s Initiative of New England, a splinter group of the neo-Nazi organization National Socialist Club-131, introduced themselves on the online platform Substack. There, the group laid out its goal of establishing the six states of New England – Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont – as white-only.

The goal of gaining control of multiple states is unrealistic, of course, at least peacefully. Therefore, a popular alternative, along the lines of Return to the Land’s actions, is to establish smaller all-white communities.

In 2013, media outlets reported that neo-Nazi Craig Cobb was buying land in the small town of Leith, North Dakota, to build a white nationalist community. The town rallied to oppose this attempt.

Later that year, Cobb was charged with seven felonies related to confronting residents with a gun. He was sentenced to probation for four years and deeded the property back to the town in 2014.

And in 2021, leaked Telegram chats revealed that Christopher Pohlhaus, a former U.S. Marine and founder of the neo-Nazi group Blood Tribe, wanted to establish a whites-only community in Springfield, Maine. Pohlhaus was developing a military training facility as part of these efforts when media coverage led him to sell the property and move out of state.

The danger of a white ethnostate

These various attempts to develop a white ethnostate are not simply individual, isolated cases. They form part of a larger movement toward achieving white nationalism.

A major part of white nationalism today is focused on anti-immigrant hatred. That has spurred major acts of extreme violence such as the 2019 murders of 23 people in El Paso, Texas, the majority of whom were Hispanic.

The “great replacement theory,” a conspiracy theory popular among white nationalists, argues that various policies are leading to the destruction of the white race. This theory inspired the 2022 mass killing of 10 Black Americans in a supermarket in Buffalo, New York.

The shooter selected the supermarket because of its location in a predominantly Black neighborhood and left behind a white supremacy manifesto.

Communities across the U.S. have successfully resisted the establishment of white ethnostates.

The residents of Leith, North Dakota, did this by creating a website informing people about what was happening in their community. Public outcry also met Pohlhaus in Maine.

As for Return to the Land, Arkansas Attorney General Tim Griffin said in July 2025 that his office is reviewing the group’s actions and whether they violate the law.

“Racism has no place in a free society,” he said, “but from a legal perspective, we have not seen anything that would indicate any state or federal laws have been broken.”

Paul J. Becker does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

In an emergency hearing before Judge Sparkle Sooknanan on Aug. 31, 2025, lawyers for a group of unaccompanied migrant children from Guatemala asked her to stop the Trump administration’s deportation of hundreds of them back to Guatemala. Concerned that the Trump administration might not follow her order to stop, the judge emphatically repeated her order that temporarily barred the deportations. And then she said something unusual:

“I am trying to do the best I can to fulfill my obligation as an Article 3 judge …”

The Conversation’s senior politics editor, Naomi Schalit, talked with former federal judge John E. Jones III, now president of Dickinson College, about the meaning of the term “Article 3 judge,” why Sooknanan might have used it, and why recent discussions of politics and law in the news have included notably more references to “Article 1,” “Article 2” and “Article 3,” normally terms reserved for discussions of constitutional law.

What is the ‘Article 3’ that Judge Sooknanen referred to?

The meaning is not something that a lay person can necessarily intuit.

It’s quite clear that the course that the Trump administration has taken in the many lawsuits against its policies is to say, “We will obey the Supreme Court of the United States, but we’re going to pick and choose the lower court opinions that we deign to follow.” And of course, Judge Sooknanan’s comment invoking the phrase “Article 3” was meant to say that, the same as a Supreme Court justice, she is a fully vetted and confirmed jurist chosen by the president and confirmed by the Senate. That’s what’s known as an Article 3 judge, authorized under Article 3 of the Constitution.

So, inferentially, what she’s saying is, “I mean what I say, your administration can’t ignore it as you appear to have done with federal Judge James Boasberg, whose order you appear to have defied to return immigrants you deported. I’m going to do belt and suspenders and be very clear about this and not give you wiggle room because it is not an option for you to disobey the order of an Article 3 judge.”

OK, you’ve described Article 3. Tell us about articles 1 and 2.

Article 1 of the Constitution creates the United States Congress.

Article 2 creates the presidency and the executive branch. It’s somewhat light on details.

And Article 3, notably, creates the Supreme Court, but left it up to Congress to develop and create, as the article says, “such inferior courts.” I don’t love the word inferior; we tend to say “lower courts.”

Because of the caseload at the founding, the Supreme Court handled everything. The Supreme Court justices did what was called “riding the circuit.” They acted, in effect, as lower court federal judges, until business and commerce and the law burgeoned. Congress was then compelled to create district court judgeships and circuit court judgeships to relieve the Supreme Court of the burden of being everything to everybody in the federal courts.

That’s a helpful civics lesson.

I worked with Supreme Court Justice Sandra Day O’Connor, who had a real predilection for civics education. One of her comments always resonates for me, that civics is something that has to be learned and relearned because it’s not stamped on our DNA.

In a recent NBC story headlined ‘Some Republicans object to Trump’s move to cancel spending, warning of a shutdown,’ Sen. Kevin Cramer from North Dakota said he wants spending decided not by the president but by Congress in a bipartisan appropriations process. ‘I think that Congress has every right to defend its Article 1 role,’ he said.

Constitutionally and by custom, Congress has the power of the purse. The president can propose a budget, but it has to be passed by Congress. And it’s quite clear that, in this Trump administration, Congress is abdicating its Article 1 powers, being compliant and dormant in allowing the president to cancel otherwise-allocated funds repeatedly. If Congress would flex its muscles under Article 1, this wouldn’t be happening.

And back to Article 3 news: There’s been some charged back-and-forth between federal judges and two Supreme Court justices over criticism of lower court judges. And 10 federal judges criticized – anonymously – the Supreme Court’s handling of the Trump cases in the so-called ‘shadow docket’ because the rulings were so brief they couldn’t take direction from them. Is this all normal?

There’s rank frustration on the part of lower court judges. The Supreme Court is forcing lower court judges to decipher meaning from Supreme Court decisions as if they’re the Rosetta stone. They are so abbreviated and less than clear that it’s maddening. Having toiled in the lower courts, the worst situation you could have is a lack of guidance from higher courts, and then you have to guess. When you have to guess, you make mistakes, and that’s the frustration you see.

I think there is a duty on the U.S. Supreme Court to not rubber-stamp lower court judges, of course, but also to have some comity with lower court judges who are struggling through this plethora of cases that have arisen because of the Trump administration flooding the zone.

What does this conflict over courts and judges mean to the average person?

The integrity of our system of justice and the judicial system is based on the trust that people place in the jurists that populate that branch, the third branch of government. And as Alexander Hamilton said, the judiciary has neither the sword nor the purse, so it is the credibility of the judiciary that, at the end of the day, carries weight.

And when the president and highly ranked officials in his administration vilify lower court judges the way they have, and if the president says that he can pick and choose among lower court opinions, then I think you know, necessarily, his followers may think that they can do the same. That is not helpful to the rule of law and to our democracy. In fact, it tears at the fabric of our system.

John E. Jones III is affiliated with Keep Our Republic’s Article Three Coalition.

​Politics + Society – The Conversation

A federal judge ruled on Sept. 2, 2025, that the Trump administration broke federal law by sending National Guard troops to Los Angeles in June in response to protests over immigration raids.

In his ruling, U.S. District Judge Charles Breyer said that National Guard troops in Los Angeles had received improper training on the legal scope of their authority under federal law. He ruled that the president’s order for the troops to engage in “domestic military law enforcement” violated the Posse Comitatus Act, which – with limited exceptions – bars the use of the military in civilian law enforcement.

While he did not require the remaining soldiers to leave Los Angeles, Breyer called on the administration to refrain from using them “to execute laws.”

The Los Angeles case, President Donald Trump’s deployment of National Guard troops to fight crime in Washington, D.C., and his recent vow to send the Guard to Chicago and Baltimore to fight crime blur practical and philosophical lines erected in both law and longtime custom between the military and the police.

As a policing scholar and former FBI special agent, I believe the plan to continue using National Guard troops to reduce crime in cities such as Chicago and Baltimore violates the legal prohibition against domestic military law enforcement.

Limited law enforcement function

State and local police training focus on law enforcement and maintaining order. Community policing, which is a collaboration between police and
the community to solve problems, and the use-of-force continuum – the escalating series of appropriate actions an officer may take to resolve a situation – also form part of training.

In contrast, the goal of National Guard basic combat training is to “learn the skills it takes to become a Soldier.”

The initial 10-week training program for National Guard recruits includes learning skills such as the use of M16 military assault rifles and grenade launchers. It also includes learning guerrilla warfare tactics, as well as tactics for neutralizing improvised explosive devices while engaging in military operations. While valuable in a military setting, such activities aren’t part of domestic policing and law enforcement.

While the National Guard has, by law, a limited law enforcement function in times of domestic emergencies, it’s a unique part of the U.S. military that typically responds – at the request of a state’s governor – to natural disasters and extreme violence.

Although rare, presidents can also call up the Guard, with or without the assent of a state governor. In 1992, for example, President George H.W. Bush sent Guard troops to Los Angeles – with the California governor’s approval – to quell widespread riots following the acquittal of white police officers who had been charged with assaulting Rodney King, a Black man.

But sending soldiers who are not well versed in policing increases the likelihood of mistakes. One of the most well-known examples is the Kent State shootings on May 4, 1970, when National Guardsmen sent to the university by Ohio’s governor opened fire and killed four unarmed students during an anti-war protest on campus.

The erosion of restraint

U.S. presidents have historically exercised restraint in deploying military personnel to suppress domestic unrest. Presidents typically work with state governors who request federal assistance during times of crisis.

Thousands of National Guard troops were sent to multiple states at the request of state governors following Hurricane Sandy in 2012. Among other tasks, President Barack Obama’s administration directed the Department of Defense to support FEMA’s efforts to restore power to thousands of homes.

The last time a president bypassed a state’s governor in sending the National Guard to quell civil unrest was in Selma, Alabama, in 1965. President Lyndon B. Johnson deployed the National Guard to protect civil rights protesters without the cooperation of Alabama Gov. George Wallace, a prominent segregationist.

Trump is changing this precedent by sending National Guard troops to Los Angeles, despite the fact that Gov. Gavin Newsom neither refused to follow federal law nor requested military support. In June 2025, Trump overrode Newsom and sent Guard troops to shield federal agents with Immigration and Customs Enforcement from political protests.

The decision to send federal troops to a political protest in Los Angeles has raised core legal questions. The First Amendment’s protection of the right to political protest is a pillar of U.S. jurisprudence.

‘Federalizing’ the Guard

The governed have a right to hold the government accountable and ensure that the government’s power reflects the consent of the governed.

The right to protest, of course, does not extend to criminal behavior. But the use of military personnel raises a pressing question: Is the president justified in sending military personnel to address pockets of criminality, instead of relying on state or local police?

One of a president’s legal avenues is to use a federal statute to do what’s called “federalizing” the National Guard. This means troops are temporarily transitioned from state to federal military control.

What is unique about the deployment in California is that Newsom objected to Trump’s decision to federalize troops. California in June 2025 sued the Trump administration, arguing the president unlawfully bypassed the governor when he federalized the National Guard.

On Sept. 4, 2025, Washington, D.C., sued the Trump administration on similar grounds. The lawsuit follows Trump’s decision in August to deploy hundreds of National Guard troops to police the capital.

For the president to legally take control of and deploy the California National Guard under federal statutes, it was necessary for the criminality in Los Angeles to rise to a “rebellion” against the U.S.

More generally, the president is prohibited from using military force – including the Marines – against civilians in pursuit of normal law-enforcement goals. This bedrock principle is based on the Posse Comitatus Act of 1878 and permits only rare exceptions, as stipulated by the Insurrection Act of 1807. This act empowers the president to deploy the U.S. military to states in circumstances relating to the suppression of an insurrection.

The Sept. 2 ruling by the federal judge in California determined that the administration deviated from these principles because the use of troops in Los Angeles did not meet the criteria established by federal law. Although the political protests in Los Angeles included some violence, the judge reasoned that the violence did not rise to a rebellion and did not prevent a traditional police response.

Federalism and the limits of executive power

In addition to the practical differences between the military and the police, there are philosophical differences derived from core principles of federalism, which refers to the division of power between the national and state governments.

In the United States, police power is derived from the 10th Amendment, which gives states the rights and powers “not delegated to the United States.” It is the states that have the power to establish and enforce laws protecting the welfare, safety and health of the public.

The use of military personnel in domestic affairs is limited by deeply entrenched policy and legal frameworks.

The deployment of National Guard troops for routine crime fighting in cities such as Los Angeles and Washington, and the proposed deployment of those troops to Chicago and Baltimore, highlights the erosion of both practical and philosophical constraints on the president and the vast federal power the president wields.

The Institute for Humane Studies at George Mason University provides funding as a member of The Conversation US.

Luke William Hunt belongs to the Institute for Humane Studies at George Mason University, which provides funding to The Conversation U.S. as a supporting member.

​Politics + Society – The Conversation