W(h)ither the Jury? The Diminishing Role ofthe Jury Trial in Our Legal System

Thank you for the warm welcome to Lexington and for the privilege of delivering the Eighth Annual Lewis F. Powell, Jr. Distinguished Lecture. I would like to extend special thanks to Patrick Rowe and the Powell Lecture Board for organizing and planning this lecture, Dean Smolla for his hospitality, and the students of Washington and Lee for their ardent academic pursuit and interest in tonight's event. Indeed, students who were interested in the rule of law founded this very lecture series. It is a privilege to be a part of the Powell Lecture Board's devotion to the rule of law, and I am deeply honored to pay tribute to the pragmatic and thoughtful legacy of Justice Powell. While we are on the subject of the Powell Lecture Board, I have with me my law clerk, Jonathon Hance, who co-chaired the Powell Lecture Board from 2007 to 2008. I am very grateful to him for his help and for his willingness to meet me at 4:00 a.m. to travel to Lexington.This is my first trip to Lexington, yet I feel right at home. Before he became governor of Tennessee, organized a Texas army, defeated Santa Anna at the Battle of San Jacinto, and became the first president of the Republic of Texas, Sam Houston was born right here in Rockbridge County - less than ten miles from this campus.1 Even though he left for the Tennessee frontier at the age of thirteen, it is hard to imagine a more inspirational birthplace than the Shenandoah Valley of Lexington, Virginia.2 As a Texan, I am grateful for Lexington's influence on this great hero of my state and the namesake of my city. I must point out, however, that while Sam Houston's birth place here is marked by a 38,000-pound piece of Texas pink granite,3 his place of death in Texas is marked by a thirty-ton concrete and steel statue in his likeness. At sixty-seven feet tall, it towers over the countryside and can be seen for miles on Interstate 45 .4 Everything is bigger in Texas.Although I did not have the honor of personally knowing Justice Powell, I am familiar with the vast and impressive body of work that he produced over his long and illustrious career. This work reflects a man of strong character and deeply held convictions: to social justice, to the integrity and accessibility of our courts, and to the highest level of professionalism for the American Lawyer. In short, his work, like the man, reflects the noblest aspirations of our profession. He instructed his law clerks to address every case from the "ground up," and he always strove to get to the root of the issue.5Earlier today, I had the privilege of visiting the Powell Archives. If you have not visited this monumental resource and you are anything but a IL, you should be ashamed.6 Justice Powell, both a historian and man who respected the privacy of his colleagues, kept every note except those that revealed the personal thoughts of his colleagues.7In addition to his written work, I have been blessed with the friendship and camaraderie of those who had the good fortune to be personally influenced by Justice Powell: his law clerks, colleagues, and friends. Among them is my good friend and fellow judge on the Fifth Circuit, Rhesa Barksdale of Mississippi. Judge Barksdale clerked for Justice White in 1972, the year Justice Powell joined the Supreme Court.8 By all accounts, Justice Powell was a diligent, hard-working member of the Supreme Court who worked long hours, including every Saturday, at the Court.9 Even so, as Judge Barksdale has put it, he was always a "true gentleman." Early in 1973, young law clerk Barksdale and his fellow co-clerks for Justice White extended invitations to all the Justices and retired Chief Justice Warren to join them for lunch, one Justice at a time of course. Justice Powell not only accepted the invitation, but in gentlemanly fashion, he reciprocated and invited Justice White's law clerks (including clerk Barksdale), Justice Powell's own law clerks, his two secretaries, and everyone's spouses to his home. …