The
judicial architecture of our Federal Rules of Civil Procedure sets complete
disclosure as the ideal for civil discovery -- equal access by contending
adversaries to all relevant information. Yet the adversarial nature of litigation
has always insured a different reality. Lawyers do their level best to keep
information that is harmful to their client out of the hands of their opponents.
The digital revolution suggests the possibility that the architects of the
civil rules may get what they wished for, posing the attendant question of
whether that is really what they want.
In a digital world, all expression by any individual or company leaves a digital data trail. All communications and actions are recorded. Data is networked, accessible, subject to analysis. As we see this world coming, we worry about our loss of privacy. We are increasingly unable to avoid sensors that track us. We are losing our capacity to be by ourselves doing what we choose, free from surveillance.
Corporate
litigants face the same problem. Our individual concern for privacy has its
analog with companies. As they transform their communications environments
from ink-on-paper to electronically networked environments, the possibility
looms upon them of near perfect information systems in which all actions are
recorded, stored, and capable of being retrieved and analyzed. Potentially,
this narrows to nothing the difference between what was actually done and
the history that can be told of it. The past becomes accessible as never before.
Here, then, in theory, and close enough on the horizon to be all but real,
is the vision of the framers of the civil discovery rules come true. Is this
heaven, or is this hell?
The
Threat From a Company Viewpoint
The
specter of near transparency to discovery is frightening to companies for
several reasons. First, companies fear that they will be obliged by courts
to expend the effort and pay the costs of making their data accessible, a
task that is potentially overwhelming. Beyond the expense of locating and
indexing their data, companies confront huge expense in making their data
readable. Active data can be read with software and hardware currently in
use. But “legacy data” recorded in times past with now outmoded software and
hardware is difficult and expensive to read. The cost of deciphering legacy
data is a major expenses associated with digital discovery.
Second,
companies fear the decision of who will be allowed to do the discovery searches.
If, as in traditional discovery process, the company’s lawyers do the search,
the cost to the company is potentially overwhelming. One can imagine a company
inviting its litigation opponent to jack in and do the search at their expense,
but, for understandable reasons, no company of which I am aware has been willing
to take this step. Giving a hostile litigant open access to one's entire information
system would mean disclosure of current business plans, trade secrets, loss
of attorney client privilege and invasions of privacy, and who knows what
the opponent would find.
Realistically,
companies resist any surrender of control in the digital discovery process.
If searches through their data are to be conducted, they will want to conduct
them themselves, or have their agents conduct them. This means they must look
to the courts to set limits on the scope and cost of what they can be required
to do. The legal problem companies face is that there seem to be no definite
bounds on digital discovery, no limits of subject, type, time, or expense.
All forms of digital data are potentially discoverable, including any data
compilations, according to the Federal Rules, “from which information can
be obtained, translated if necessary by respondent through detection devices
into reasonable readable form.” The fact, for example, that the senders or
receivers of email may have “deleted” them, far from insulating them from
discovery, may give reason to think that these email messages are a particularly
important source to mine for admissible evidence. The fact that a computer
may be used for personal as well as company business may give reason for care
in conducting a discovery search but does not necessarily limit the scope
of what can be searched.
The
Judicial Standard of Proportionality
Companies
naturally raise their concerns about potentially huge costs and burdens of
discovery to the judges administering the discovery rules. Judges address
these protests from respondents using proportionality principles. The civil
rules invite judges to limit discovery when the burden of discovery outweighs
its likely benefit, in order to prevent undue burden or expense. But the rules
neither specify the component measures of burden and benefit nor define what
is undue.
Judges
may consider the expense of the requested discovery in proportion to the amount
in controversy in the lawsuit. This relationship of cost to amount in controversy
is thought to be an important factor because a disproportionately high cost
of responding to discovery can force the respondent to settle a suit regardless
of its merits. But when the high cost of discovery can be attributed to the
respondent company’s failure to organize itself efficiently, judges are likely
to impose the cost of discovery on the company even if the cost is high relative
to the value of the plaintiffs’ claim. The coercive settlement situation is
of the company’s own making, the argument goes, created by the company’s decision
to adopt an information system from which it has benefited overall but which
has made the desired discovery difficult. Why, a judge will ask, should those
litigating against the company be disadvantaged by the company’s disorganization?
It is, moreover, somewhat doubtful how much judges care that their discovery
orders may impose so much expense on a respondent company that it will be
forced to settle. Judges may be under such pressure to clear their calendars
that, far from seeming a negative, the tendency of high discovery costs to
promote settlement may be regarded as a plus. This seems wrong in principle,
but real in fact.
Judges,
when asked to limit discovery requests, will also consider how likely the
requested discovery is to produce admissible evidence. Where the discovery
challenge is to search large volumes of digital data, judges have to consider
Boolean searches and data sampling. Keyword searches are constructed so as
to produce a limited number of high-assay hits. Sampling may be used for back-up
tapes at staggered dates to determine how much overlap there is and how likely
further search of additional back-ups will be to produce new material. The
objective from the respondent’s viewpoint is to establish a pattern of diminishing
return in which the judge perceives a tipping point beyond which the effort
of further discovery seems unjustified by the likely benefit. If convinced,
the judge can mitigate the discovery burden on the respondent either by barring
discovery beyond that point or by shifting the cost of further discovery to
the requesting party.
The
processes of sampling and keyword searching can be highly efficient in searching
massive volumes of data. These digital search techniques comprise the most
distinctive feature and potential advantage of digital discovery. Yet, because
of the attorney client privilege, these search techniques may benefit the
requester more than the respondent. If privileged documents are turned over
to the other side in discovery, the privilege will be lost, not only for the
document itself, but also for all other documents relating to its subject
matter. This waiver doctrine requires discovery respondents to review each
document carefully before delivering it to the other side. Given the massive
volume of documents that may be involved, reviewing each one can pose a huge
cost. This means that while the requester reaps the efficiency advantage of
digital search techniques, the respondent does not. Companies would prefer
approval by judges of a more relaxed standard of waiver, expanding the ambit
of so-called inadvertent waiver so that inspection can be done by keyword
search, backed by the safety net that if privileged documents slip through
the keyword review effort and are turned over to the other side, they would
not lose their privileged status and could not be used in evidence.
The bottom line is that the legal framework of proportionality is amorphous and leaves tremendous discretion to the discovery judge, whose decisions are, in any case, reviewed only against a standard of abuse of discretion, and seldom reversed. Instead of looking to judges to protect them from potentially huge discovery burdens, companies are concluding that they need to take control of their data trails and eliminate much of them by destroying unwanted data and ordering what remains to make search and retrieval and production efficient.
****
QUESTION:
How would you advise a company to go about the task of eliminated unwanted
data? What problems would concern you?
Swain v. Alabama was decided by the U.S. Supreme Court in 1965, the year I was clerking. It was a stunningly unjust decision, an injustice that changed my life. The defendant was a black man convicted of rape by an all-white jury and sentenced to death. To his complaint that the prosecutor had used peremptory challenges against all of the African-Americans who were on the jury venire, thus producing the all-white jury, the Supreme Court turned a deaf ear. Justice White for the Court declared that a criminal defendant has no right to a jury on which members of his race are represented, only to an impartial jury. Peremptory challenges could be exercised for any reason a prosecutor might think related to the case, or for no reason but instinct. The all-whiteness of Swain's jury raised no constitutional issue.
But Swain's claim of injustice went further. Swain asserted that prosecutors in Talladega County had systematically used peremptory challenges to exclude Afro-Americans from every jury. No black man had ever been allowed to serve on a Talladega County petit jury. Justice White acknowledged that this, if proved, would be a perversion of the use of peremptory challenges that would violate the Equal Protection Clause tantamount to the de jure exclusion of Afro-Americans from jury service declared unconstitutional in Strauder v. West Virginia back in 1881. But, said Justice White, Swain's claim failed as a matter of proof. Even if true that no Afro-Americans had ever served on petit juries in Talladega County, Swain had not proved that prosecutorial conduct was responsible for this total exclusion. Swain needed evidence from those prior cases that it was the prosecutors and not the defendants who were responsible for the challenges. This was a ridiculous burden to place on a criminal defendant, impossible to meet.
This opinion shocked me. I had intended, at that young time of my life, to be a tax lawyer. Instead, soon after the Swain opinion issued from the Court, I went to the Department of Justice, applied for and got a job in the Civil Rights Division, and the next year went to work on jury cases in Alabama. Tax law lost its allure.
Thirty years later, as you know, the Supreme Court overruled Swain. Batson v. Kentucky established that prosecutors could no longer use peremptory challenges to discriminate purposefully against jurors because of their race, and made it possible for a defendant to prove this violation of the equal protection of the law without having to go beyond the facts of his own trial by (step one) allowing the defendant to raise a prima facie case of purposeful racial discrimination from the prosecutor's strikes of black potential jurors; (step two) forcing the prosecutor to come forward with a race-neutral explanation; and (step three) judging whether the prosecutor's race-neutral explanation is a pretext. Justice White, still on the Court, agreed that Swain should be overruled. His opinion in Swain, he said, should have warned prosecutors to change their behavior, though why he thought so remains unclear to me.
Batson was just the beginning of incursions on the sanctity of peremptory challenges. Cases following Batson have extended its holding from race to gender, from prosecutors to defendants, from criminal to civil cases. The rule now appears to be that no lawyer in any case on either side can peremptorily challenge a juror based on race or gender, though the law on this subject hardly seems settled. The future of peremptory challenges is in doubt. I want to focus attention on how our changing information environment is likely to affect the future judicial development of the law of peremptory challenges.
Batson and its progeny are rooted in judicial hostility to state action based on stereotypes that have been used historically to discriminate against African-Americans and women. Such discrimination is all too easily expressed through the exercise of peremptory challenges. Prior to Batson there had been no easy way to know whether race was a factor motivating a peremptory challenge. The procedure Batson and progeny establish for generating the inference that a peremptory challenge was an act of purposeful discrimination was designed to counter the subjectivity that traditionally had been allowed to shroud their exercise. There is still no easy way to evaluate the significance or race relative to other factors.
What happens, what should happen to these recently evolved rules relating to peremptory challenges as we move into a digital environment in which, let us imagine, lawyers have far more detailed and accurate information that gross stereotype can provide about prospective jurors and their predilections, and in which the exercise of peremptory challenges is far more transparent, the reasons and weightings easily demonstrated and proved. We are entering a time when our actions and transactions are increasingly tracked and recorded, when information about us is amenable to powerful statistical analysis resulting in remarkably accurate portraits of our predilections -- what we like, how we are likely to vote.
Imagine a net-connected software program that would act as a lawyer's helper in jury selection, a first class jury investigation and consulting service in a box. This program would enable a lawyer plug into the program the basic information about each prospective juror obtained from the jury venire list, name and address, and immediately access a mass of information about each juror drawn from the net-accessible databases of the world. Imagine further an analytic intelligence built into the software, based on extensive trusted survey data, that generates an instantaneous and accurate assessment of each juror's predilection toward the case about to be tried. The program, in imagination, puts at the lawyer's fingertips in the form of a predilection score just what the lawyer wants to know for purposes of exercising his peremptory challenges, which juror is least likely to be favorable to the lawyer's case. Such a program would/will bring a transparency to the jury selection process that was not possible in the days of Swain and Batson.
"For
racial
discrimination to result in the exclusion from jury service of otherwise qualified
groups not only violates our Constitution and the laws enacted under it but
is at war with our basic concepts of a democratic society and a representative
government." Smith v. Texas, 311 U.S. 128, 130.
Further, "jurymen should be selected as individuals, on the basis of individual qualifications, and not as members
of a race." Cassell v. Texas, 339 U.S. 282, 286 (opinion
of Mr. Justice Reed, announcing judgment). Nor is the constitutional command
forbidding intentional exclusion limited to Negroes. It applies to any identifiable
group in the community which may be the subject of prejudice. Hernandez
v. Texas, 347 U.S. 475.
But purposeful discrimination may not be assumed or merely asserted. Brownfield
v. South Carolina, 189 U.S. 426; Tarrance v. Florida,
188 U.S. 519; Smith v. Mississippi, 162 U.S. 592; Bush
v. Kentucky, 107 U.S. 110. It must be proven, Tarrance v.
Florida, supra; Martin v. Texas, 200 U.S. 316, the quantum
of proof necessary being a matter of federal law. Norris v. Alabama,
294 U.S. 587; Smith v. Texas, 311 U.S. 128. It is not the
soundness of these principles, which is unquestioned, but their scope and
application to the issues in this case that concern us here.
I.
We consider first petitioner's claims concerning the selection of grand jurors
and the petit jury venire. The evidence was that while Negro males over 21
constitute 26% of all males in the county in this age group, only 10 to 15%
of the grand and petit jury panels drawn from the jury box since 1953 have
been Negroes, there having been only one case in which the percentage was
as high as 23%. In this period of time, Negroes served on 80% of the grand
juries selected, the number ranging from one to three. There were four or
five Negroes on the grand jury panel of about 33 in this case, out of which
two served on the grand jury which indicted petitioner. Although there has
been an average of six to seven Negroes on petit jury venires in criminal
cases, no Negro has actually served on a petit jury since about 1950. In this
case there were eight Negroes on the petit jury venire but none actually served,
two being exempt and six being struck by the prosecutor in the process of
selecting the jury.
[...]
The
main thrust of the motion according to its terms was the striking of the six
Negroes from the petit jury venire. No evidence was taken, petitioner apparently
being content to rely on the record which had been made in connection with
the motion to quash the indictment. We think the motion, seeking as it did
to invalidate the alleged purposeful striking of Negroes from the jury which
was to try petitioner, was properly denied.
In providing for jury trial in criminal cases, Alabama adheres to the common-law
system of trial by an impartial jury of 12 men who must unanimously agree
on a verdict, the system followed in the federal courts by virtue of the Sixth
Amendment. As part of this system it provides for challenges for cause and
substitutes a system of strikes for the common-law method of peremptory challenge.
Alabama contends that its system of peremptory strikes -- challenges without
cause, without explanation and without judicial scrutiny -- affords a suitable
and necessary method of securing juries which in fact and in the opinion of
the parties are fair and impartial. This system, it is said, in and of itself,
provides justification for striking any group of otherwise qualified jurors
in any given case, whether they be Negroes, Catholics, accountants or those
with blue eyes. Based on the history of this system and its actual use and
operation in this country, we think there is merit in this position.
The peremptory challenge has very old credentials. In all trials for felonies
at common law, the defendant was allowed to challenge peremptorily 35 jurors,
and the prosecutor originally had a right to challenge any number of jurors
without cause, a right which was said to tend to "infinite delayes and
danger." Coke on Littleton 156 (14th ed. 1791). Thus The Ordinance for Inquests, 33 Edw. 1, Stat. 4 (1305), provided
that if "they that sue for the King will challenge any . . . Jurors,
they shall assign . . . a Cause certain." So persistent was the view
that a proper jury trial required peremptories on both sides, however, that
the statute was construed to allow the prosecution to direct any juror after
examination to "stand aside" until the entire panel was gone over
and the defendant had exercised his challenges; only if there was a deficiency
of jurors in the box at that point did the Crown have to show cause in respect
to jurors recalled to make up the required number. Peremptories on both sides
became the settled law of England, continuing in the above form until after
the separation of the Colonies.
This common law provided the starting point for peremptories in this country.
In the federal system, Congress early took a part of the subject in hand in
establishing that the defendant was entitled to 35 peremptories in trials
for treason and 20 in trials for other felonies specified in the 1790 Act
as punishable by death, 1 Stat. 119 (1790). In regard to trials for other
offenses without the 1790 statute, both the defendant and the Government were
thought to have a right of peremptory challenge, although the source of this
right was not wholly clear. In 1865, the Government was given by statute five
peremptory challenges in capital and treason cases, the defendant being entitled
to 20, and two in other cases where the right of the defendant to challenge
then existed, he being entitled to 10. 13 Stat. 500 (1865). Subsequent enactments increased the number
of challenges the Government could exercise, the Government now having an
equal number with the defendant in capital cases, and six in cases where the
crime is punishable by more than one year's imprisonment, the defendant or
defendants having ten.
The course in the States apparently
paralleled that in the federal system. The defendant's right of challenge
was early conferred by statute, the number often corresponding to the English
practice, the prosecution was thought
to have retained the Crown's common-law right to stand aside, and by 1870,
most, if not all, States had enacted statutes conferring on the prosecution
a substantial number of peremptory challenges, the number generally being
at least half, but often equal to, the number had by the defendant. Although
there has been some criticism in the twentieth century leveled at peremptory
challenges, on the basis of the delays, expense and elimination of qualified
jurors incident to their use, the system
has survived these attacks. In every State, except where peremptory
strikes are a substitute, peremptory challenges are given by statute to both
sides in both criminal and civil cases, the number in criminal cases still
being considerably greater. Under these statutes the prosecution generally
possesses a substantial number of challenges.
The system of struck juries also has its roots in ancient common-law heritage.
Since striking a jury allowed both sides a greater number of challenges and
an opportunity to become familiar with the entire venire list, it was deemed
an effective means of obtaining more impartial and better qualified jurors.
Accordingly, it was used in causes of "great nicety" or "where
the sheriff [responsible for the jury list] was suspected of partiality."
3 Bl. Comm. 357. It is available in many States for both civil and criminal
cases. The Alabama system adheres to the common-law form, except that the
veniremen are drawn from the regular jury list, are summoned to court before
striking begins and the striking continues until 12 rather than 24 remain.
It was adopted as a fairer system to the defendant and prosecutor and a more
efficacious, quicker way to obtain an impartial jury satisfactory to the parties.
In contrast to the course in England, where both peremptory challenge and
challenge for cause have fallen into disuse, peremptories were and are freely
used and relied upon in this country, perhaps because juries here are drawn
from a greater cross-section of a heterogeneous society. The voir dire
in American trials tends to be extensive and probing, operating as a predicate
for the exercise of peremptories, and the process of selecting a jury protracted.
The persistence of peremptories and their extensive use demonstrate the long
and widely held belief that peremptory challenge is a necessary part of trial
by jury. See Lewis v. United States, 146 U.S. 370, 376.
Although " there is nothing in the Constitution of the United States
which requires the Congress [or the States] to grant peremptory challenges,"
Stilson v. United States, 250 U.S. 583, 586, nonetheless
the challenge is "one of the most important of the rights secured to
the accused," Pointer v. United States, 151 U.S. 396,
408. The denial or impairment of the right is reversible error without a showing
of prejudice, Lewis v. United States, supra; Harrison v.
United States, 163 U.S. 140; cf. Gulf, Colorado & Santa Fe
R. Co. v. Shane, 157 U.S. 348. "For it is, as Blackstone
says, an arbitrary and capricious right; and it must be exercised with full
freedom, or it fails of its full purpose." Lewis v. United
States, supra, at 378.
The function of the challenge is not only to eliminate extremes of partiality
on both sides, but to assure the parties that the jurors before whom they
try the case will decide on the basis of the evidence placed before them,
and not otherwise. In this way the peremptory satisfies the rule that "to
perform its high function in the best way 'justice must satisfy the appearance
of justice.'" In re Murchison, 349 U.S. 133, 136. Indeed the
very availability of peremptories allows counsel to ascertain the possibility
of bias through probing questions on the voir dire and facilitates
the exercise of challenges for cause by removing the fear of incurring a juror's
hostility through examination and challenge for cause. Although historically
the incidence of the prosecutor's challenge has differed from that of the
accused, the view in this country has been that the system should guarantee
"not only freedom from any bias against the accused, but also from any
prejudice against his prosecution. Between him and the state the scales are
to be evenly held." Hayes v. Missouri, 120 U.S. 68,
70.
The essential nature of the peremptory challenge is that it is one exercised
without a reason stated, without inquiry and without being subject to the
court's control. State v. Thompson, 68 Ariz. 386, 206 P.
2d 1037 (1949); Lewis v. United States, 146 U.S. 370, 378.
While challenges for cause permit rejection of jurors on a narrowly specified,
provable and legally cognizable basis of partiality, the peremptory permits
rejection for a real or imagined partiality that is less easily designated
or demonstrable. Hayes v. Missouri, 120 U.S. 68, 70. It
is often exercised upon the "sudden impressions and unaccountable prejudices
we are apt to conceive upon the bare looks and gestures of another,"
Lewis, supra, at 376, upon a juror's "habits and associations,"
Hayes v. Missouri, supra, at 70, or upon the feeling that
"the bare questioning [a juror's] indifference may sometimes provoke
a resentment," Lewis, supra, at 376. It is no less frequently
exercised on grounds normally thought irrelevant to legal proceedings or official
action, namely, the race, religion, nationality, occupation or affiliations
of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is
not whether a juror of a particular race or nationality is in fact partial,
but whether one from a different group is less likely to be. It is well known
that these factors are widely explored during the voir dire, by both
prosecutor and accused, Miles v. United States, 103 U.S.
304; Aldridge v. United States, 283 U.S. 308. This Court
has held that the fairness of trial by jury requires no less. Aldridge,
supra. Hence veniremen are not always judged solely as individuals for
the purpose of exercising peremptory challenges. Rather they are challenged
in light of the limited knowledge counsel has of them, which may include their
group affiliations, in the context of the case to be tried.
With these considerations in mind, we cannot hold that the striking of Negroes
in a particular case is a denial of equal protection of the laws. In the quest
for an impartial and qualified jury, Negro and white, Protestant and Catholic,
are alike subject to being challenged without cause. To subject the prosecutor's
challenge in any particular case to the demands and traditional standards
of the Equal Protection Clause would entail a radical change in the nature
and operation of the challenge. The challenge, pro tanto, would no
longer be peremptory, each and every challenge being open to examination,
either at the time of the challenge or at a hearing afterwards. The prosecutor's
judgment underlying each challenge would be subject to scrutiny for reasonableness
and sincerity. And a great many uses of the challenge would be banned.
In the light of the purpose of the peremptory system and the function it serves
in a pluralistic society in connection with the institution of jury trial,
we cannot hold that the Constitution requires an examination of the prosecutor's
reasons for the exercise of his challenges in any given case. The presumption
in any particular case must be that the prosecutor is using the State's challenges
to obtain a fair and impartial jury to try the case before the court. The
presumption is not overcome and the prosecutor therefore subjected to examination
by allegations that in the case at hand all Negroes were removed from the
jury or that they were removed because they were Negroes. Any other result,
we think, would establish a rule wholly at odds with the peremptory challenge
system as we know it. Hence the motion to strike the trial jury was properly
denied in this case.
III.
Petitioner, however, presses a broader claim in this Court. His argument is
that not only were the Negroes removed by the prosecutor in this case but
that there never has been a Negro on a petit jury in either a civil or criminal
case in Talladega County and that in criminal cases prosecutors have consistently
and systematically exercised their strikes to prevent any and all Negroes
on petit jury venires from serving on the petit jury itself. This systematic
practice, it is claimed, is invidious discrimination for which the peremptory
system is insufficient justification.
We agree that this claim raises a different issue and it may well require
a different answer. We have decided that it is permissible to insulate from
inquiry the removal of Negroes from a particular jury on the assumption that
the prosecutor is acting on acceptable considerations related to the case
he is trying, the particular defendant involved and the particular crime charged.
But when the prosecutor in a county, in case after case, whatever the circumstances,
whatever the crime and whoever the defendant or the victim may be, is responsible
for the removal of Negroes who have been selected as qualified jurors by the
jury commissioners and who have survived challenges for cause, with the result
that no Negroes ever serve on petit juries, the Fourteenth Amendment claim
takes on added significance. Cf. Yick Wo v. Hopkins, 118
U.S. 356. In these circumstances, giving even the widest leeway to the operation
of irrational but trial-related suspicions and antagonisms, it would appear
that the purposes of the peremptory challenge are being perverted. If the
State has not seen fit to leave a single Negro on any jury in a criminal case,
the presumption protecting the prosecutor may well be overcome. Such proof
might support a reasonable inference that Negroes are excluded from juries
for reasons wholly unrelated to the outcome of the particular case on trial
and that the peremptory system is being used to deny the Negro the same right
and opportunity to participate in the administration of justice enjoyed by
the white population. These ends the peremptory challenge is not designed
to facilitate or justify.
We need pursue this matter no further, however, for even if a State's systematic
striking of Negroes in the selection of petit juries raises a prima facie
case under the Fourteenth Amendment, we think it is readily apparent that
the record in this case is not sufficient to demonstrate that the rule has
been violated by the peremptory system as it operates in Talladega County.
Cf. Glasser v. United States, 315 U.S. 60, 87.
The difficulty with the record before us, perhaps flowing from the fact that
it was made in connection with the motion to quash the indictment, is that
it does not with any acceptable degree of clarity, show when, how often, and
under what circumstances the prosecutor alone has been responsible for striking
those Negroes who have appeared on petit jury panels in Talladega County.
The record is absolutely silent as to those instances in which the prosecution
participated in striking Negroes, except for the indication that the prosecutor
struck the Negroes in this case and except for those occasions when the defendant
himself indicated that he did not want Negroes on the jury. Apparently in
some cases, the prosecution agreed with the defense to remove Negroes. There
is no evidence, however, of what the prosecution did or did not do on its
own account in any cases other than the one at bar. In one instance the prosecution
offered the defendant an all-Negro jury but the defendant in that case did
not want a jury with any Negro members. There was other testimony that in
many cases the Negro defendant preferred an all-white to a mixed jury. One
lawyer, who had represented both white and Negro defendants in criminal cases,
could recall no Negro client who wanted Negroes on the jury which was to try
him. The prosecutor himself, who had served since 1953, said that if the Negro
defendant wanted Negroes on the jury it would depend "upon the circumstances
and the conditions and the case and what I thought justice demanded and what
[it] was in that particular case," and that striking is done differently
depending on the race of the defendant and the victim of the crime. These
statements do not support an inference that the prosecutor was bent on striking
Negroes, regardless of trial-related considerations. The fact remains, of
course, that there has not been a Negro on a jury in Talladega County since
about 1950. But the responsibility of the prosecutor is not illuminated in
this record. There is no allegation or explanation, and hence no opportunity
for the State to rebut, as to when, why and under what circumstances in cases
previous to this one the prosecutor used his strikes to remove Negroes. In
short, petitioner has not laid the proper predicate for attacking the peremptory
strikes as they were used in this case. Petitioner has the burden of proof
and he has failed to carry it.
Affirmed.
* * *
BATSON v. KENTUCKY 476 U.S. 79 (1985)
JUSTICE POWELL delivered the opinion of the Court.
This case requires us to reexamine that portion of Swain v. Alabama,
380 U.S. 202 (1965), concerning the evidentiary burden placed on a criminal
defendant who claims that he has been denied equal protection through the
State's use of peremptory challenges to exclude members of his race from the
petit jury.
Petitioner, a black man, was indicted in Kentucky on charges of second-degree
burglary and receipt of stolen goods. On the first day of trial in Jefferson
Circuit Court, the judge conducted voir dire examination of the venire,
excused certain jurors for cause, and permitted the parties to exercise peremptory
challenges. The prosecutor used his peremptory challenges to strike all four
black persons on the venire, and a jury composed only of white persons was
selected. Defense counsel moved to discharge the jury before it was sworn
on the ground that the prosecutor's removal of the black veniremen violated
petitioner's rights under the Sixth and Fourteenth Amendments to a jury drawn
from a cross section of the community, and under the Fourteenth Amendment
to equal protection of the laws. Counsel requested a hearing on his motion.
Without expressly ruling on the request for a hearing, the trial judge observed
that the parties were entitled to use their peremptory challenges to "strike
anybody they want to." The judge then denied petitioner's motion, reasoning
that the cross-section requirement applies only to selection of the venire
and not to selection of the petit jury itself.
The jury convicted petitioner on both counts. On appeal to the Supreme Court
of Kentucky, petitioner pressed, among other claims, the argument concerning
the prosecutor's use of peremptory challenges. Conceding that Swain
v. Alabama, supra, apparently foreclosed an equal protection claim
based solely on the prosecutor's conduct in this case, petitioner urged the
court to follow decisions of other States, People v. Wheeler,
22 Cal. 3d 258, 583 P. 2d 748 (1978); Commonwealth v. Soares,
377 Mass. 461, 387 N. E. 2d 499, cert. denied, 444 U.S. 881 (1979), and to
hold that such conduct violated his rights under the Sixth Amendment and §
11 of the Kentucky Constitution to
a jury drawn from a cross section of the community. Petitioner also contended
that the facts showed that the prosecutor had engaged in a "pattern"
of discriminatory challenges in this case and established an equal protection
violation under Swain.
The Supreme Court of Kentucky affirmed. In a single paragraph, the court declined
petitioner's invitation to adopt the reasoning of People v. Wheeler,
supra, and Commonwealth v. Soares, supra. The court
observed that it recently had reaffirmed its reliance on Swain, and
had held that a defendant alleging lack of a fair cross section must demonstrate
systematic exclusion of a group of jurors from the venire. See Commonwealth
v. McFerron, 680 S. W. 2d 924 (1984). We granted certiorari, 471
U.S. 1052 (1985), and now reverse.
II
In Swain v. Alabama, this Court recognized that a "State's
purposeful or deliberate denial to Negroes on account of race of participation
as jurors in the administration of justice violates the Equal Protection Clause."
380 U.S., at 203-204. This principle has been "consistently and repeatedly"
reaffirmed, id., at 204, in numerous decisions of this Court both
preceding and following Swain. n3 We reaffirm the principle today.
More than a century ago, the Court decided that the State denies a black defendant
equal protection of the laws when it puts him on trial before a jury from
which members of his race have been purposefully excluded. Strauder
v. West Virginia, 100 U.S. 303 (1880). That decision laid the foundation
for the Court's unceasing efforts to eradicate racial discrimination in the
procedures used to select the venire from which individual jurors are drawn.
In Strauder, the Court explained that the central concern of the
recently ratified Fourteenth Amendment was to put an end to governmental discrimination
on account of race. Id., at 306-307. Exclusion of black citizens
from service as jurors constitutes a primary example of the evil the Fourteenth
Amendment was designed to cure.
In holding that racial discrimination in jury selection offends the Equal
Protection Clause, the Court in Strauder recognized, however, that
a defendant has no right to a "petit jury composed in whole or in part
of persons of his own race." Id., at 305. "The number of
our races and nationalities stands in the way of evolution of such a conception"
of the demand of equal protection. Akins v. Texas, 325 U.S.
398, 403 (1945). n6 But the defendant does have the right to be tried by a jury whose members are selected
pursuant to non-discriminatory criteria. Martin v. Texas,
200 U.S. 316, 321 (1906); Ex parte Virginia, 100 U.S. 339, 345 (1880).
The Equal Protection Clause guarantees the defendant that the State will not
exclude members of his race from the jury venire on account of race, Strauder,
supra, at 305, n7 or on the false assumption that members of his race
as a group are not qualified to serve as jurors, see Norris v. Alabama,
294 U.S. 587, 599 (1935); Neal v. Delaware, 103 U.S. 370,
397 (1881).
Purposeful racial discrimination in selection of the venire violates a defendant's
right to equal protection because it denies him the protection that a trial
by jury is intended to secure. "The very idea of a jury is a body . .
. composed of the peers or equals of the person whose rights it is selected
or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society
as that which he holds." Strauder, supra, at 308; see Carter
v. Jury Comm'n of Greene County, 396 U.S. 320, 330 (1970). The petit
jury has occupied a central position in our system of justice by safeguarding
a person accused of crime against the arbitrary exercise of power by prosecutor
or judge. Duncan v. Louisiana, 391 U.S. 145, 156 (1968).
Those on the venire must be "indifferently
chosen," to secure the defendant's
right under the Fourteenth Amendment to "protection of life and liberty
against race or color prejudice." Strauder, supra, at 309.
Racial discrimination in selection of jurors harms not only the accused whose
life or liberty they are summoned to try. Competence to serve as a juror ultimately
depends on an assessment of individual qualifications and ability impartially
to consider evidence presented at a trial. See Thiel v. Southern
Pacific Co., 328 U.S. 217, 223-224 (1946). A person's race simply "is
unrelated to his fitness as a juror." Id., at 227 (Frankfurter,
J., dissenting). As long ago as Strauder, therefore, the Court recognized
that by denying a person participation in jury service on account of his race,
the State unconstitutionally discriminated against the excluded juror. 100
U.S., at 308; see Carter v. Jury Comm'n of Greene County, supra,
at 329-330; Neal v. Delaware, supra, at 386.
The harm from discriminatory jury selection extends beyond that inflicted
on the defendant and the excluded juror to touch the entire community. Selection
procedures that purposefully exclude black persons from juries undermine public
confidence in the fairness of our system of justice. See Ballard
v. United States, 329 U.S. 187, 195 (1946); McCray v. New
York, 461 U.S. 961, 968 (1983) (MARSHALL, J., dissenting from denial
of certiorari). Discrimination within the judicial system is most pernicious
because it is "a stimulant to that race prejudice which is an impediment
to securing to [black citizens] that equal justice which the law aims to secure
to all others." Strauder, 100 U.S., at 308.
B
In Strauder, the Court invalidated a state statute that provided
that only white men could serve as jurors. Id., at 305. We can be
confident that no State now has such a law. The Constitution requires, however,
that we look beyond the face of the statute defining juror qualifications
and also consider challenged selection practices to afford "protection
against action of the State through its administrative officers in effecting
the prohibited discrimination." Norris v. Alabama, supra,
at 589; see Hernandez v. Texas, 347 U.S. 475, 478-479 (1954);
Ex parte Virginia, supra, at 346-347. Thus, the Court has found a
denial of equal protection where the procedures implementing a neutral statute
operated to exclude persons from the venire on racial grounds,and has made
clear that the Constitution prohibits all forms of purposeful racial discrimination
in selection of jurors. While decisions of this Court have been concerned
largely with discrimination during selection of the venire, the principles
announced there also forbid discrimination on account of race in selection
of the petit jury. Since the Fourteenth Amendment protects an accused throughout
the proceedings bringing him to justice, Hill v. Texas,
316 U.S. 400, 406 (1942), the State may not draw up its jury lists pursuant
to neutral procedures but then resort to discrimination at "other stages
in the selection process," Avery v. Georgia, 345 U.S.
559, 562 (1953); see McCray v. New York, supra, at 965,
968 (MARSHALL, J., dissenting from denial of certiorari);
see also Alexander v. Louisiana, 405 U.S. 625, 632 (1972).
Accordingly, the component of the jury selection process at issue here, the
State's privilege to strike individual jurors through peremptory challenges,
is subject to the commands of the Equal Protection Clause. Although a prosecutor
[***83] ordinarily is entitled to
exercise permitted peremptory challenges "for any reason at all, as long
as that reason is related to his view concerning the outcome" of the
case to be tried, United States v. Robinson, 421 F.Supp.
467, 473 (Conn. 1976), mandamus granted sub nom. United States v.
Newman, 549 F.2d 240 (CA2 1977), the Equal Protection Clause forbids
the prosecutor to challenge potential jurors solely on account of their race
or on the assumption that black jurors as a group will be unable impartially
to consider the State's case against a black defendant.
III
The principles announced in Strauder never have been questioned in
any subsequent decision of this Court. Rather, the Court has been called upon
repeatedly to review the application of those principles to particular facts.
A recurring question in these cases, as in any case alleging a violation of
the Equal Protection Clause, was whether the defendant had met his burden
of proving purposeful discrimination on the part of the State. Whitus
v. Georgia, 385 U.S. 545, 550 (1967); Hernandez v. Texas,
supra, at 478-481; Akins v. Texas, 325 U.S., at 403-404;
Martin v. Texas, 200 U.S. 316 (1906). That question also
was at the heart of the portion of Swain v. Alabama we reexamine
today.
A
Swain required the Court to decide, among other issues, whether a
black defendant was denied equal protection by the State's exercise of peremptory
challenges to exclude members of his race from the petit jury. 380 U.S., at
209-210. The record in Swain showed that the prosecutor had used
the State's peremptory challenges to strike the six black persons included
on the petit jury venire. Id., at 210. While rejecting the defendant's
claim for failure to prove purposeful discrimination, the Court nonetheless
indicated that the Equal Protection Clause placed some limits on the State's
exercise of peremptory challenges. Id., at 222-224.
The Court sought to accommodate the prosecutor's historical privilege of peremptory
challenge free of judicial control, id., at 214-220, and the constitutional
prohibition on exclusion of persons from jury service on account of race,
id., at 222-224. While the Constitution does not confer a right to
peremptory challenges, id., at 219 (citing Stilson v. United
States, 250 U.S. 583, 586 (1919)), those challenges traditionally have
been viewed as one means of assuring the selection of a qualified and unbiased
jury, 380 U.S., at 219. To preserve the peremptory nature of the prosecutor's
challenge, the Court in Swain declined to scrutinize his actions
in a particular case by relying on a presumption that he properly exercised
the State's challenges. Id., at 221-222.
The Court went on to observe, however, that a State may not exercise its challenges
in contravention of the Equal Protection Clause. It was impermissible for
a prosecutor to use his challenges to exclude blacks from the jury "for
reasons wholly unrelated to the outcome of the particular case on trial"
or to deny to blacks "the same right and opportunity to participate in
the administration of justice enjoyed by the white population." Id.,
at 224. Accordingly, a black defendant could make out a prima facie case of
purposeful discrimination on proof that the peremptory challenge system was
"being perverted" in that manner. Ibid. For example, an
inference of purposeful discrimination would be raised on evidence that a
prosecutor, "in case after case, whatever the circumstances, whatever
the crime and whoever the defendant or the victim may be, is responsible for
the removal of Negroes who have been selected as qualified jurors by the jury
commissioners and who have survived challenges for cause, with the result
that no Negroes ever serve on petit juries." Id., at 223. Evidence
offered by the defendant in Swain did not meet that standard. While
the defendant showed that prosecutors in the jurisdiction had exercised their
strikes to exclude blacks from the jury, he offered no proof of the circumstances
under which prosecutors were responsible for striking black jurors beyond
the facts of his own case. Id., at 224-228.
A number of lower courts following the teaching of Swain reasoned
that proof of repeated striking of blacks over a number of cases was necessary
to establish a violation of the Equal Protection Clause. Since this interpretation
of Swain has placed on defendants a crippling burden of proof, prosecutors'
peremptory challenges are now largely immune from constitutional scrutiny.
For reasons that follow, we reject this evidentiary formulation as inconsistent
with standards that have been developed since Swain for assessing
a prima facie case under the Equal Protection Clause.
B
Since the decision in Swain, we have explained that our cases concerning
selection of the venire reflect the general equal protection principle that
the "invidious quality" of governmental action claimed to be racially
discriminatory "must ultimately be traced to a racially discriminatory
purpose." Washington v. Davis, 426 U.S. 229, 240 (1976).
As in any equal protection case, the "burden is, of course," on
the defendant who alleges discriminatory selection of the venire "to
prove the existence of purposeful discrimination." Whitus v.
Georgia, 385 U.S., at 550 (citing Tarrance v. Florida,
188 U.S. 519 (1903)). In deciding if the defendant has carried his burden
of persuasion, a court must undertake "a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available." Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S.
252, 266 (1977). Circumstantial evidence of invidious intent may include proof
of disproportionate impact. Washington v. Davis, 426 U.S.,
at 242. We have observed that under some circumstances proof of discriminatory
impact "may for all practical purposes demonstrate unconstitutionality
because in various circumstances the discrimination is very difficult to explain
on nonracial grounds." Ibid. For example, "total or seriously
disproportionate exclusion of Negroes from jury venires," ibid.,
"is itself such an 'unequal application of the law . . . as to show intentional
discrimination,'" id., at 241 (quoting Akins v. Texas,
325 U.S., at 404).
Moreover, since Swain, we have recognized that a black defendant
alleging that members of his race have been impermissibly excluded from the
venire may make out a prima facie case of purposeful discrimination by showing
that the totality of the relevant facts gives rise to an inference of discriminatory
purpose. Washington v. Davis, supra, at 239-242. Once the
defendant makes the requisite showing, the burden shifts to the State to explain
adequately the racial exclusion. Alexander v. Louisiana,
405 U.S., at 632. The State cannot meet this burden on mere general assertions
that its officials did not discriminate or that they properly performed their
official duties. See Alexander v. Louisiana, supra, at 632;
Jones v. Georgia, 389 U.S. 24, 25 (1967). Rather, the State
must demonstrate that "permissible racially neutral selection criteria
and procedures have produced the monochromatic result." Alexander
v. Louisiana, supra, at 632; see Washington v. Davis,
supra, at 241.
The showing necessary to establish a prima facie case of purposeful discrimination
in selection of the venire may be discerned in this Court's decisions. E.
g., Castaneda v. Partida, 430 U.S. 482, 494-495 (1977); Alexander
v. Louisiana, supra, at 631-632. The defendant initially must show
that he is a member of a racial group capable of being singled out for differential
treatment. Castaneda v. Partida, supra, at 494. In combination
with that evidence, a defendant may then make a prima facie case by proving
that in the particular jurisdiction members of his race have not been summoned
for jury service over an extended period of time. Id., at 494. Proof
of systematic exclusion from the venire raises an inference of purposeful
discrimination because the "result bespeaks discrimination." Hernandez
v. Texas, 347 U.S., at 482; see
Arlington Heights v. Metropolitan Housing Development Corp.,
supra, at 266.
Since the ultimate issue is whether the State has discriminated in selecting
the defendant's venire, however, the defendant may establish a prima facie
case "in other ways than by evidence of long-continued unexplained absence"
of members of his race "from many panels." Cassell v. Texas,
339 U.S. 282, 290 (1950) (plurality opinion). In cases involving the venire,
this Court has found a prima facie case on proof that members of the defendant's
race were substantially underrepresented on the venire from which his jury
was drawn, and that the venire was selected under a practice providing "the
opportunity for discrimination." Whitus v. Georgia, supra,
at 552; see Castaneda v. Partida, supra, at 494; Washington
v. Davis, supra, at 241; Alexander v. Louisiana, supra,
at 629-631. This combination of factors raises the necessary inference of
purposeful discrimination because the Court has declined to attribute to chance
the absence of black citizens on a particular jury array where the selection
mechanism is subject to abuse. When circumstances suggest the need, the trial
court must undertake a "factual inquiry" that "takes into account
all possible explanatory factors" in the particular case. Alexander
v. Louisiana, supra, at 630.
Thus, since the decision in Swain, this Court has recognized that
a defendant may make a prima facie showing of purposeful racial discrimination
in selection of the venire by relying solely on the facts concerning its selection
in his case. These decisions are in accordance with the proposition,
articulated in Arlington Heights v. Metropolitan Housing Development
Corp., that "a consistent pattern of official racial discrimination"
is not "a necessary predicate to a violation of the Equal Protection
Clause. A single invidiously discriminatory governmental act" is not
"immunized by the absence of such discrimination in the making of other
comparable decisions." 429 U.S., at 266, n. 14. For evidentiary requirements
to dictate that "several must suffer discrimination" before one
could object, McCray v. New York, 461 U.S., at 965 (MARSHALL,
J., dissenting from denial of certiorari), would be inconsistent with the
promise of equal protection to all.
The standards for assessing a prima facie case in the context of discriminatory
selection of the venire have been fully articulated since Swain.
See Castaneda v. Partida, supra, at 494-495; Washington
v. Davis, 426 U.S., at 241-242; Alexander v. Louisiana,
supra, at 629-631. These principles support our conclusion that a defendant
may establish a prima facie case of purposeful discrimination in selection
of the petit jury solely on evidence concerning the prosecutor's exercise
of peremptory challenges at the defendant's trial. To establish such a case,
the defendant first must show that he is a member of a cognizable racial group,
Castaneda v. Partida, supra, at 494, and that the prosecutor
has exercised peremptory challenges to remove from the venire members of the
defendant's race. Second, the defendant is entitled to rely on the fact, as
to which there can be no dispute, that peremptory challenges constitute a
jury selection practice that permits "those to discriminate who are of
a mind to discriminate." Avery v. Georgia, 345 U.S.,
at 562. Finally, the defendant must show that these facts and any other relevant
circumstances raise an inference that the prosecutor used that practice to
exclude the veniremen from the petit jury on account of their race. This combination
of factors in the empaneling of the petit jury, as in the selection of the
venire, raises the necessary inference of purposeful discrimination.
In deciding whether the defendant has made the requisite showing, the trial
court should consider all relevant circumstances. For example, a "pattern"
of strikes against black jurors included in the particular venire might give
rise to an inference of discrimination. Similarly, the prosecutor's questions
and statements during voir dire examination and in exercising his
challenges may support or refute an inference of discriminatory purpose. These
examples are merely illustrative. We have confidence that trial judges, experienced
in supervising voir dire, will be able to decide if the circumstances
concerning the prosecutor's use of peremptory challenges creates a prima facie
case of discrimination against black jurors.
Once the defendant makes a prima facie showing, the burden shifts to the State
to come forward with a neutral explanation for challenging black jurors. Though
this requirement imposes a limitation in some cases on the full peremptory
character of the historic challenge, we emphasize that the prosecutor's explanation
need not rise to the level justifying exercise of a challenge for cause. See
McCray v. Abrams, 750 F.2d, at 1132; Booker v.
Jabe, 775 F.2d 762, 773 (CA6 1985), cert. pending, No. 85-1028. But
the prosecutor may not rebut the defendant's prima facie case of discrimination
by stating merely that he challenged jurors of the defendant's race on the
assumption -- or his intuitive judgment -- that they would be partial to the
defendant because of their shared race. Cf. Norris v. Alabama,
294 U.S., at 598-599; see Thompson v. United States, 469
U.S. 1024, 1026 (1984) (BRENNAN, J., dissenting from denial of certiorari).
Just as the Equal Protection Clause forbids the States to exclude black persons
from the venire on the assumption that blacks as a group are unqualified to
serve as jurors, supra, at 86, so it forbids the States to strike
black veniremen on the assumption that they will be biased in a particular
case simply because the defendant is black. The core guarantee of equal protection,
ensuring citizens that their State will not discriminate on account of race,
would be meaningless were we to approve the exclusion of jurors on the basis
of such assumptions, which arise solely from the jurors' race. Nor may the
prosecutor rebut the defendant's case merely by denying that he had a discriminatory
motive or "[affirming] [his] good faith in making individual selections."
Alexander v. Louisiana, 405 U.S., at 632. If these general
assertions were accepted as rebutting a defendant's prima facie case, the
Equal Protection Clause "would be but a vain and illusory requirement."
Norris v. Alabama, supra, at 598. The prosecutor therefore
must articulate a neutral explanation related to the particular case to be
tried. The trial court then will have the duty to determine if the defendant
has established purposeful discrimination.
IV
The State contends that our holding will eviscerate the fair trial values
served by the peremptory challenge. Conceding that the Constitution does not
guarantee a right to peremptory challenges and that Swain did state
that their use ultimately is subject to the strictures of equal protection,
the State argues that the privilege of unfettered exercise of the challenge
is of vital importance to the criminal justice system.
While we recognize, of course, that the peremptory challenge occupies an important
position in our trial procedures, we do not agree that our decision today
will undermine the contribution the challenge generally makes to the
administration of justice. The reality of practice, amply reflected in many
state- and federal-court opinions, shows that the challenge may be, and unfortunately
at times has been, used to discriminate against black jurors. By requiring
trial courts to be sensitive to the racially discriminatory use of peremptory
challenges, our decision enforces the mandate of equal protection and furthers
the ends of justice. In view of the heterogeneous population of our Nation,
public respect for our criminal justice system and the rule of law will be
strengthened if we ensure that no citizen is disqualified from jury service
because of his race.
Nor are we persuaded by the State's suggestion that our holding will create
serious administrative difficulties. In those States applying a version of
the evidentiary standard we recognize today, courts have not experienced serious
administrative burdens, and the peremptory challenge system has survived.
We decline, however, to formulate particular procedures to be followed upon
a defendant's timely objection to a prosecutor's
challenges.
In this case, petitioner made a timely objection to the prosecutor's removal
of all black persons on the venire. Because the trial court flatly rejected
the objection without requiring the prosecutor to give an explanation for
his action, we remand this case for further proceedings. If the trial court
decides that the facts establish, prima facie, purposeful discrimination and
the prosecutor does not come forward with a neutral explanation for his action,
our precedents require that petitioner's conviction be reversed. E. g.,
Whitus v. Georgia, 385 U.S., at 549-550; Hernandez
v. Texas, 347 U.S., at 482; Patton v. Mississippi,
332 U.S., at 469. It is so ordered.
JUSTICE WHITE, concurring.
The Court overturns the principal holding in Swain v. Alabama,
380 U.S. 202 (1965), that the Constitution does not require in any given case
an inquiry into the prosecutor's reasons for using his peremptory challenges
to strike blacks from the petit jury panel in the criminal trial of a black
defendant and that in such a case it will be presumed that the prosecutor
is acting for legitimate trial-related reasons. The Court now rules that such
use of peremptory challenges in a given case may, but does not necessarily,
raise an inference, which the prosecutor carries the burden of refuting, that
his strikes were based on the belief that no black citizen could be a satisfactory
juror or fairly try a black defendant.
I agree that, to this extent, Swain should be overruled. I do so
because Swain itself indicated that the presumption of legitimacy
with respect to the striking of black venire persons could be overcome by
evidence that over a period of time the prosecution had consistently excluded
blacks from petit juries. This should have warned prosecutors that using peremptories
to exclude blacks on the assumption that no black juror could fairly judge
a black defendant would violate the Equal Protection Clause.
It appears, however, that the practice of peremptorily eliminating blacks
from petit juries in cases with black defendants remains widespread, so much
so that I agree that an opportunity to inquire should be afforded when this
occurs. If the defendant objects, the judge, in whom the Court puts considerable
trust, may determine that the prosecution must respond. If not persuaded otherwise,
the judge may conclude that the challenges rest on the belief that blacks
could not fairly try a black defendant. This, in effect, attributes to the
prosecutor the view that all blacks should be eliminated from the entire venire.
Hence, the Court's prior cases dealing with jury venires rather than petit
juries are not without relevance in this case.
The Court emphasizes that using peremptory challenges to strike blacks does
not end the inquiry; it is not unconstitutional, without more, to strike one
or more blacks from the jury. The judge may not require the prosecutor to
respond at all. If he does, the prosecutor, who in most cases has had a chance
to voir dire the prospective jurors, will have an opportunity to
give trial-related reasons for his strikes -- some satisfactory ground other
than the belief that black jurors should not be allowed to judge a black defendant.
Much litigation will be required to spell out the contours of the Court's
equal protection holding today, and the significant effect it will have on
the conduct of criminal trials cannot be gainsaid. But I agree with the Court
that the time has come to rule as it has, and I join its opinion and judgment.
* * *
J. E. B., PETITIONER v. ALABAMA EX REL. T. B.
511 U.S. 127; 114 S.
Ct. 1419 (1994)
JUSTICE BLACKMUN delivered the opinion of the Court.
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106
S. Ct. 1712 (1986), this Court held that the Equal Protection Clause of the
Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor
in a criminal trial. The Court explained that although a defendant has "no
right to a 'petit jury composed in whole or in part of persons of his own
race,'" id., at 85, quoting Strauder v. West Virginia,
100 U.S. 303, 305, 25 L. Ed. 664 (1880), the "defendant does have the
right to be tried by a jury whose members are selected pursuant to nondiscriminatory
criteria," 476 U.S. at 85-86. Since Batson, we have reaffirmed
repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory.
We have recognized that whether the trial is criminal or civil, potential
jurors, as well as litigants, have an equal protection right to jury selection
procedures that are free from state-sponsored group stereotypes rooted in,
and reflective of, historical prejudice. See Powers v. Ohio,
499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991); Edmonson
v. Leesville Concrete Co., 500 U.S. 614, 114 L. Ed. 2d 660, 111 S.
Ct. 2077 (1991); Georgia v. McCollum, 505 U.S. 42, 120 L.
Ed. 2d 33, 112 S. Ct. 2348 (1992).
Although premised on equal protection principles that apply equally to gender
discrimination, all our recent cases defining the scope of Batson
involved alleged racial discrimination in the exercise of peremptory challenges.
Today we are faced with the question whether the Equal Protection Clause forbids
intentional discrimination on the basis of gender, just as it prohibits discrimination
on the basis of race. We hold that gender, like race, is an unconstitutional
proxy for juror competence and impartiality.
I
On behalf of relator T. B., the mother of a minor child, respondent State
of Alabama filed a complaint for paternity and child support against petitioner
J. E. B. in the District Court of Jackson County, Alabama. On October 21,
1991, the matter was called for trial and jury selection began. The trial
court assembled a panel of 36 potential jurors, 12 males and 24 females. After
the court excused three jurors for cause, only 10 of the remaining 33 jurors
were male. The State then used 9 of its 10 peremptory strikes to remove male
jurors; petitioner used all but one of his strikes to remove female jurors.
As a result, all the selected jurors were female.
Before the jury was empaneled, petitioner objected to the State's peremptory
challenges on the ground that they were exercised against male jurors solely
on the basis of gender, in violation of the Equal Protection Clause of the
Fourteenth Amendment. App. 22. Petitioner argued that the logic and reasoning
of Batson v. Kentucky, which prohibits peremptory strikes
solely on the basis of race, similarly forbids intentional discrimination
on the basis of gender. The court rejected petitioner's claim and empaneled
the all-female jury. App. 23. The jury found petitioner to be the father of
the child, and the court entered an order directing him to pay child support.
On postjudgment motion, the court reaffirmed its ruling that Batson
does not extend to gender-based peremptory challenges. App. 33. The Alabama
Court of Civil Appeals affirmed, 606 So. 2d 156 (1992), relying on Alabama
precedent, see, e. g., Murphy v. State, 596 So. 2d 42 (Ala.
Crim. App. 1991), cert. denied, 506 U.S. 827, 121 L. Ed. 2d 49, 113 S. Ct.
86 (1992), and Ex parte Murphy, 596 So. 2d 45 (Ala. 1992). The Supreme
Court of Alabama denied certiorari, No. 1911717 (Oct. 23, 1992).
We granted certiorari, 508 U.S. 905 (1993), to resolve a question that has
created a conflict of authority -- whether the Equal Protection Clause forbids
peremptory challenges on the basis of gender as well as on the basis of race.
Today we reaffirm what, by now, should be axiomatic: Intentional discrimination
on the basis of gender by state actors violates the Equal Protection Clause,
particularly where, as here, the discrimination serves to ratify and perpetuate
invidious, archaic, and overbroad stereotypes about the relative abilities
of men and women.
II
Discrimination on the basis of gender in the exercise of peremptory challenges
is a relatively recent phenomenon. Gender-based peremptory strikes were hardly
practicable during most of our country's existence, since, until the 20th
century, women were completely excluded from jury service. So well entrenched
was this exclusion of women that in 1880 this Court, while finding that the
exclusion of African-American men from juries violated the Fourteenth Amendment,
expressed no doubt that a State "may confine the selection [of jurors]
to males." Strauder v. West Virginia, 100 U.S. at 310;
see also Fay v. New York, 332 U.S. 261, 289-290, 91 L. Ed.
2043, 67 S. Ct. 1613 (1947).
Many States continued to exclude women from jury service well into the
present century, despite the fact that women attained suffrage upon ratification
of the Nineteenth Amendment in 1920. n3 States that did permit women to serve
on juries often erected other barriers, such as registration requirements
and automatic exemptions, designed to deter women from exercising their right
to jury service. See, e. g., Fay
v. New York, 332 U.S. at 289 ("In 15 of the 28 states which
permitted women to serve [on juries in 1942], they might claim exemption because
of their sex"); Hoyt v. Florida, 368 U.S. 57, 7 L.
Ed. 2d 118, 82 S. Ct. 159 (1961) (upholding affirmative registration statute
that exempted women from mandatory jury service).
The prohibition of women on juries was derived from the English common law
which, according to Blackstone, right-fully excluded women from juries under
"the doctrine of propter defectum sexus, literally, the 'defect
of sex.'" United States v. De Gross, 960 F.2d 1433,
1438 (CA9 1992) (en banc), quoting 2 W. Blackstone, Commentaries * 362. n4
In this country, supporters of the exclusion of women from juries tended to
couch their objections in terms of the ostensible need to protect women from
the ugliness and depravity of trials. Women were thought to be too fragile
and virginal to withstand the polluted courtroom atmosphere. See Bailey
v. State, 215 Ark. 53, 61, 219 S.W.2d 424, 428 (1949) ("Criminal
court trials often involve testimony of the foulest kind, and they sometimes
require consideration of indecent conduct, the use of filthy and loathsome
words, references to intimate sex relationships, and other elements that would
prove humiliating, embarrassing and degrading to a lady"); In re
Goodell, 39 Wis. 232, 245-246 (1875) (endorsing statutory ineligibility
of women for admission to the bar because "reverence for all womanhood
would suffer in the public spectacle of women . . . so engaged"); Bradwell
v. State, 83 U.S. 130, 16 Wall. 130, 141, 21 L. Ed. 442 (1873) (concurring
opinion) ("The civil law, as well as nature herself, has always recognized
a wide difference in the respective spheres and destinies of man and woman.
Man is, or should be, woman's protector and defender. The natural and proper
timidity and delicacy which belongs to the female sex evidently unfits it
for many of the occupations of civil life. . . . The paramount destiny and
mission of woman are to fulfil the noble and benign offices of wife and mother.
This is the law of the Creator"). Cf. Frontiero v. Richardson,
411 U.S. 677, 684, 36 L. Ed. 2d 583, 93 S. Ct. 1764 (1973) (plurality opinion)
(This "attitude of 'romantic paternalism' . . . put women, not on a pedestal,
but in a cage").
This Court in Ballard v. United States, 329 U.S. 187,
91 L. Ed. 181, 67 S. Ct. 261 (1946), first questioned the fundamental fairness
of denying women the right to serve on juries. Relying on its supervisory
powers over the federal courts, it held that women may not be excluded from
the venire in federal trials in States where women were eligible for jury
service under local law. In response to the argument that women have no superior
or unique perspective, such that defendants are denied a fair trial by virtue
of their exclusion from jury panels, the Court explained:
"It
is said . . . that an all male panel drawn from the various groups within
a community will be as truly representative as if women were included. The
thought is that the factors which tend to influence the action of women are
the same as those which influence the action of men -- personality, background,
economic status -- and not sex. Yet it is not enough to say that women when
sitting as jurors neither act nor tend to act as a class. Men likewise do
not act like a class. . . . The truth is that the two sexes are not fungible;
a community made up exclusively of one is different from a community composed
of both; the subtle interplay of influence one on the other is among the imponderables.
To insulate the courtroom from either may not in a given case make an iota
of difference. Yet a flavor, a distinct quality is lost if either sex is excluded."
Id., at 193-194 (footnotes omitted).
Fifteen years later, however, the Court still was unwilling to translate
its appreciation for the value of women's contribution to civic life into
an enforceable right to equal treatment under state laws governing jury service.
In Hoyt v. Florida, 368 U.S. at 61, the Court found it reasonable,
"despite the enlightened emancipation of women," to exempt women
from mandatory jury service by statute, allowing women to serve on juries
only if they volunteered to serve. The Court justified the differential exemption
policy on the ground that women, unlike men, occupied a unique position "as
the center of home and family life." Id., at 62.
In 1975, the Court finally repudiated the reasoning of Hoyt and struck
down, under the Sixth Amendment, an affirmative registration statute nearly
identical to the one at issue in Hoyt. See Taylor v. Louisiana
, 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975). n5 We explained: "Restricting
jury service to only special groups or excluding identifiable segments playing
major roles in the community cannot be squared with the constitutional concept
of jury trial." Id., at 530. The diverse and representative
character of the jury must be maintained "'partly as assurance of a diffused
impartiality and partly because sharing in the administration of justice is
a phase of civic responsibility.'" Id., at 530-531, quoting
Thiel v. Southern Pacific Co., 328 U.S. 217, 227, 90 L.
Ed. 1181, 66 S. Ct. 984 (1946) (Frankfurter, J., dissenting). See also Duren
v. Missouri, 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979).
III
Taylor relied on Sixth Amendment principles, but the opinion's approach
is consistent with the heightened equal protection scrutiny afforded gender-based
classifications. Since Reed v. Reed, 404 U.S. 71, 30 L.
Ed. 2d 225, 92 S. Ct. 251 (1971), this Court consistently has subjected gender-based
classifications to heightened scrutiny in recognition of the real danger that
government policies that professedly are based on reasonable considerations
in fact may be reflective of "archaic and overbroad" generalizations
about gender, see Schlesinger v. Ballard, 419 U.S. 498,
506-507, 42 L. Ed. 2d 610, 95 S. Ct. 572 (1975), or based on "outdated
misconceptions concerning the role
of females in the home rather than in the 'marketplace and world of ideas.'"
Craig v. Boren, 429 U.S. 190, 198-199, 50 L. Ed. 2d 397,
97 S. Ct. 451 (1976). See also Cleburne v. Cleburne Living Center,
Inc., 473 U.S. 432, 441, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) (differential
treatment of the sexes "very likely reflect[s] outmoded notions of the
relative capabilities of men and women").
Despite the heightened scrutiny afforded distinctions based on gender, respondent
argues that gender discrimination in the selection of the petit jury should
be permitted, though discrimination on the basis of race is not. Respondent
suggests that "gender discrimination in this country . . . has never
reached the level of discrimination" against African-Americans, and therefore
gender discrimination, unlike racial discrimination, is tolerable in the courtroom.
Brief for Respondent 9.
While the prejudicial attitudes toward women in this country have not been
identical to those held toward racial minorities, the similarities between
the experiences of racial minorities and women, in some contexts, "overpower
those differences." Note, Beyond Batson: Eliminating Gender-Based
Peremptory Challenges, 105 Harv. L. Rev. 1920, 1921 (1992). As a plurality
of this Court observed in Frontiero v. Richardson, 411 U.S.
at 685:
"Throughout much of the 19th century the position of women in our society
was, in many respects, comparable to that of blacks under the pre-Civil War
slave codes. Neither slaves nor women could hold office, serve on juries,
or bring suit in their own names, and married women traditionally were denied
the legal capacity to hold or convey property or to serve as legal guardians
of their own children. . . . And although blacks were guaranteed the right
to vote in 1870, women were denied even that right -- which is itself 'preservative
of other basic civil and political rights' -- until adoption of the Nineteenth
Amendment half a century later." (Footnote omitted.)
Certainly, with respect to jury service, African-Americans and women share
a history of total exclusion, a history which came to an end for women many
years after the embarrassing chapter in our history came to an end for African-Americans.
We need not determine, however, whether women or racial minorities have suffered
more at the hands of discriminatory state actors during the decades of our
Nation's history. It is necessary only to acknowledge that "our Nation
has had a long and unfortunate history of sex discrimination," id.,
at 684, a history which warrants the heightened scrutiny we afford all gender-based
classifications today. Under our equal protection jurisprudence, gender-based
classifications require "an exceedingly persuasive justification"
in order to survive constitutional scrutiny. See Personnel Administrator
of Mass. v. Feeney, 442 U.S. 256, 273, 60 L. Ed. 2d 870, 99
S. Ct. 2282 (1979). See also Mississippi Univ. for Women v. Hogan,
458 U.S. 718, 724, 73 L. Ed. 2d 1090, 102 S. Ct. 3331 (1982); Kirchberg
v. Feenstra, 450 U.S. 455, 461, 67 L. Ed. 2d 428, 101 S. Ct. 1195
(1981). Thus, the only question is whether discrimination on the basis of
gender in jury selection substantially furthers the State's legitimate interest
in achieving a fair and impartial trial. n6 In making this assessment, we
do not weigh the value of peremptory challenges as an institution against
our asserted commitment to eradicate invidious
discrimination from the courtroom. n7 Instead, we consider whether
peremptory challenges based on gender stereotypes provide substantial aid
to a litigant's effort to secure a fair and impartial jury. n8
Far from proffering an exceptionally persuasive justification for its gender-based
peremptory challenges, respondent maintains that its decision to strike virtually
all the males from the jury in this case "may reasonably have been based
upon the perception, supported by history, that men otherwise totally qualified
to serve upon a jury in any case might be more sympathetic and receptive to the arguments
of a man alleged in a paternity action to be the father of an out-of-wedlock
child, while women equally qualified to serve upon a jury might be more sympathetic
and receptive to the arguments of the complaining witness who bore the child."
Brief for Respondent 10. n9
We shall not accept as a defense to gender-based peremptory challenges "the
very stereotype the law condemns." Powers v. Ohio,
499 U.S. at 410. Respondent's rationale, not unlike those regularly expressed
for gender-based strikes, is reminiscent of the arguments advanced to justify
the total exclusion of women from juries. Respondent offers virtually no support for the conclusion that gender alone
is an accurate predictor of juror's attitudes; yet it urges this Court to
condone the same stereotypes that justified the wholesale exclusion of women
from juries and the ballot box. Respondent
seems to assume that gross generalizations that would be deemed impermissible
if made on the basis of race are somehow permissible when made on the basis
of gender.
Discrimination in jury selection, whether based on race or on gender, causes
harm to the litigants, the community, and the individual jurors who are wrongfully
excluded from participation in the judicial process. The litigants are harmed
by the risk that the prejudice that motivated the discriminatory selection
of the jury will infect the entire proceedings. See Edmonson, 500
U.S. at 628 (discrimination in the courtroom "raises serious questions
as to the fairness of the proceedings conducted there"). The community
is harmed by the State's participation in the perpetuation of invidious group
stereotypes and the inevitable loss of confidence in our judicial system that
state-sanctioned discrimination in the courtroom engenders.
When state actors exercise peremptory challenges in reliance on gender stereotypes,
they ratify and reinforce prejudicial views of the relative abilities of men
and women. Because these stereotypes have wreaked injustice in so many other
spheres of our country's public life, active discrimination by litigants on
the basis of gender during jury selection "invites cynicism respecting
the jury's neutrality and its obligation to adhere to the law." Powers
v. Ohio, 499 U.S. at 412. The potential for cynicism is particularly
acute in cases where gender-related issues are prominent, such as cases involving
rape, sexual harassment, or paternity. Discriminatory use of peremptory challenges
may create the impression that the judicial system has acquiesced in suppressing
full participation by one gender or that the "deck has been stacked"
in favor of one side. See id., at 413 ("The verdict will not
be accepted or understood [as fair] if the jury is chosen by unlawful means
at the outset").
In recent cases we have emphasized that individual jurors themselves have
a right to nondiscriminatory jury selection procedures. See Powers, supra, Edmonson, supra
, and Georgia v. McCollum,
505 U.S. 42, 120 L. Ed. 2d 33, 112 S. Ct. 2348 (1992).
Contrary to respondent's suggestion, this right extends to both men and women.
See Mississippi Univ. for Women v. Hogan, 458 U.S. at 723
(that a state practice "discriminates against males rather than against
females does not exempt it from scrutiny or reduce the standard of review");
cf. Brief for Respondent 9 (arguing that men deserve no protection from gender
discrimination in jury selection because they are not victims of historical
discrimination). All persons, when granted the opportunity to serve on a jury,
have the right not to be excluded summarily because of discriminatory and
stereotypical presumptions that reflect and reinforce patterns
of historical discrimination. Striking
individual jurors on the assumption that they hold particular views simply
because of their gender is "practically a brand upon them, affixed by
the law, an assertion of their inferiority." Strauder v. West
Virginia, 100 U.S. at 308. It denigrates the dignity of the excluded
juror, and, for a woman, reinvokes a history of exclusion from political participation. The message it sends to all those in the courtroom,
and all those who may later learn of the discriminatory act, is that certain
individuals, for no reason other than gender, are presumed unqualified by
state actors to decide important questions upon which reasonable persons could
disagree.
IV
Our conclusion that litigants may not strike potential jurors solely on the
basis of gender does not imply the elimination of all peremptory challenges.
Neither does it conflict with a State's legitimate interest in using such
challenges in its effort to secure a fair and impartial jury. Parties still
may remove jurors who they feel might be less acceptable than others on the
panel; gender simply may not serve as a proxy for bias. Parties may also exercise
their peremptory challenges to remove from the venire any group or class of
individuals normally subject to "rational basis" review. See Cleburne
v. Cleburne Living Center, Inc., 473 U.S. at 439-442; Clark
v. Jeter, 486 U.S. 456, 461, 100 L. Ed. 2d 465, 108 S. Ct. 1910 (1988).
Even strikes based on characteristics that are disproportionately associated
with one gender could be appropriate, absent a showing of pretext.
If conducted properly, voir dire can inform litigants about potential
jurors, making reliance upon stereotypical and pejorative notions about a
particular gender or race both unnecessary and unwise. Voir dire
provides a means of discovering actual or implied bias and a firmer basis
upon which the parties may exercise their peremptory challenges intelligently.
See, e. g., Nebraska Press Assn. v. Stuart, 427 U.S. 539,
602, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976) (Brennan, J., concurring in judgment)
(voir dire "facilitate[s] intelligent exercise of peremptory
challenges and [helps] uncover factors that would dictate disqualification
for cause"); United States v. Whitt, 718 F.2d 1494,
1497 (CA10 1983) ("Without an adequate foundation [laid by voir dire],
counsel cannot exercise sensitive and intelligent peremptory challenges").
The experience in the many jurisdictions that have barred gender-based challenges
belies the claim that litigants and trial courts are incapable of complying
with a rule barring strikes based on gender. See n. 1, supra (citing
state and federal jurisdictions that have extended Batson to gender).
As with race-based Batson claims, a party alleging gender discrimination
must make a prima facie showing of intentional discrimination before the party
exercising the challenge is required to explain the basis for the strike.
Batson, 476 U.S. at 97. When an explanation is required, it
need not rise to the level of a "for cause" challenge; rather, it
merely must be based on a juror characteristic other than gender, and the
proffered explanation may not be pretextual. See Hernandez v. New
York, 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991).
Failing to provide jurors the same protection against gender discrimination
as race discrimination could frustrate the purpose of Batson itself.
Because gender and race are overlapping categories, gender can be used as
a pretext for racial discrimination. Allowing parties to remove racial minorities
from the jury not because of their race, but because of their gender, contravenes
well-established equal protection principles and could insulate effectively
racial discrimination from judicial scrutiny.
V
Equal opportunity to participate in the fair administration of justice is
fundamental to our democratic system. It not only furthers the goals of the
jury system. It reaffirms the promise of equality under the law -- that all
citizens, regardless of race, ethnicity, or gender, have the chance to take
part directly in our democracy. Powers v. Ohio, 499 U.S.
at 407 ("Indeed, with the exception of voting, for most citizens the
honor and privilege of jury duty is their most significant opportunity to
participate in the democratic process"). When persons are excluded from
participation in our democratic processes solely because of race or gender,
this promise of equality dims, and the integrity of our judicial system is
jeopardized.
In view of these concerns, the Equal Protection Clause prohibits discrimination
in jury selection on the basis of gender, or on the assumption that an individual
will be biased in a particular case for no reason other than the fact that
the person happens to be a woman or happens to be a man. As with race, the
"core guarantee of equal protection, ensuring citizens that their State
will not discriminate . . . , would be meaningless were we to approve the
exclusion of jurors on the basis of such assumptions, which arise solely from
the jurors' [gender]." Batson, 476 U.S. at 97-98.
The judgment of the Court of Civil Appeals of Alabama is reversed, and the
case is remanded to that court for further proceedings not inconsistent with
this opinion.
It is so ordered.
JUSTICE SCALIA,
with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.
Today's opinion is an inspiring demonstration of how thoroughly up-to-date
and right-thinking we Justices are in matters pertaining to the sexes (or
as the Court would have it, the genders), and how sternly we disapprove the
male chauvinist attitudes of our predecessors. The price to be paid for this
display -- a modest price, surely -- is that most of the opinion is quite
irrelevant to the case at hand. The hasty reader will be surprised to learn,
for example, that this lawsuit involves a complaint about the use of peremptory
challenges to exclude men from a petit jury. To be sure, petitioner,
a man, used all but one of his peremptory strikes to remove women
from the jury (he used his last challenge to strike the sole remaining male
from the pool), but the validity of his strikes is not before us.
Nonetheless, the Court treats itself to an extended discussion of the historic
exclusion of women not only from jury service, but also from service at the
bar (which is rather like jury service, in that it involves going to the courthouse
a lot). See ante, at 131-136. All this, as I say, is irrelevant,
since the case involves state action that allegedly discriminates against
men. The parties do not contest that discrimination on the basis of sex is
subject to what our cases call "heightened scrutiny," and the citation
of one of those cases (preferably one involving men rather than women, see,
e. g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718,
723-724, 73 L. Ed. 2d 1090, 102 S. Ct. 3331 (1982)) is all that was needed.
The Court also spends time establishing that the use of sex as a proxy for
particular views or sympathies is unwise and perhaps irrational. The opinion
stresses the lack of statistical evidence to support the widely held belief
that, at least in certain types of cases, a juror's sex has some statistically
significant predictive value as to how the juror will behave. See ante,
at 137-139, and n. 9. This assertion seems to place the Court in opposition
to its earlier Sixth Amendment "fair cross-section" cases. See,
e. g., Taylor v. Louisiana, 419 U.S. 522, 532, n. 12, 42
L. Ed. 2d 690, 95 S. Ct. 692 (1975) ("Controlled studies . . . have concluded
that women bring to juries their own perspectives and values that influence
both jury deliberation and result"). But times and trends do change,
and unisex is unquestionably in fashion. Personally, I am less inclined to
demand statistics, and more inclined to credit the perceptions of experienced
litigators who have had money on the line. But it does not matter. The Court's
fervent defense of the proposition il n'y a pas de difference entre les
hommes et les femmes (it stereotypes the opposite view as hateful "stereotyping")
turns out to be, like its recounting of the history of sex discrimination
against women, utterly irrelevant. Even if sex was a remarkably good predictor
in certain cases, the Court would find its use in peremptories unconstitutional.
See ante, at 139, n. 11; cf. ante, at 148-149 (O'CONNOR,
J., concurring).
Of course the relationship of sex to partiality would have been relevant
if the Court had demanded in this case what it ordinarily demands: that the
complaining party have suffered some injury. Leaving aside for the moment
the reality that the defendant himself had the opportunity to strike women
from the jury, the defendant would have some cause to complain about the prosecutor's
striking male jurors if male jurors tend to be more favorable toward defendants
in paternity suits. But if men and women jurors are (as the Court thinks)
fungible, then the only arguable injury from the prosecutor's "impermissible"
use of male sex as the basis for his peremptories is injury to the stricken
juror, not to the defendant. Indeed, far from having suffered harm, petitioner,
a state actor under our precedents, see Georgia v. McCollum,
505 U.S. 42, 50-51, 120 L. Ed. 2d 33, 112 S. Ct. 2348 (1992); cf. Edmonson
v. Leesville Concrete Co., 500 U.S. 614, 626-627, 114 L. Ed. 2d 660,
111 S. Ct. 2077 (1991), has himself actually inflicted harm on female
jurors. The Court today presumably supplies petitioner with a cause of action
by applying the uniquely expansive third-party standing analysis of Powers
v. Ohio, 499 U.S. 400, 415, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991),
according petitioner a remedy because of the wrong done to male jurors. This
case illustrates why making restitution to Paul when it is Peter who has been
robbed is such a bad idea. Not only has petitioner, by implication of the
Court's own reasoning, suffered no harm, but the scientific evidence presented
at trial established petitioner's paternity with 99.92% accuracy. Insofar
as petitioner is concerned, this is a case of harmless error if there ever
was one; a retrial will do nothing but divert the State's judicial and prosecutorial
resources, allowing either petitioner or some other malefactor to go free.
The core of the Court's reasoning is that peremptory challenges on the basis
of any group characteristic subject to heightened scrutiny are inconsistent
with the guarantee of the Equal Protection Clause. That conclusion can be
reached only by focusing unrealistically upon individual exercises of the
peremptory challenge, and ignoring the totality of the practice. Since all
groups are subject to the peremptory challenge (and will be made the object
of it, depending upon the nature of the particular case) it is hard to see
how any group is denied equal protection. See id., at 423-424 (SCALIA,
J., dissenting); Batson v. Kentucky, 476 U.S. 79, 137-138,
90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) (REHNQUIST, J., dissenting). That
explains why peremptory challenges coexisted with the Equal Protection Clause
for 120 years. This case is a perfect example of how the system as a whole
is evenhanded. While the only claim before the Court is petitioner's complaint
that the prosecutor struck male jurors, for every man struck by the government
petitioner's own lawyer struck a woman. To say that men were singled out for
discriminatory treatment in this process is preposterous. The situation would
be different if both sides systematically struck individuals of one group,
so that the strikes evinced group-based animus and served as a proxy for segregated
venire lists. See Swain v. Alabama, 380 U.S. 202, 223-224,
13 L. Ed. 2d 759, 85 S. Ct. 824 (1965). The pattern here, however, displays
not a systemic sex-based animus but each side's desire to get a jury favorably
disposed to its case. That is why the Court's characterization of respondent's
argument as "reminiscent of the arguments advanced to justify the total
exclusion of women from juries," ante, at 138, is patently false.
Women were categorically excluded from juries because of doubt that they were
competent; women are stricken from juries by peremptory challenge because
of doubt that they are well disposed to the striking party's case. See Powers,
supra, at 424 (SCALIA, J., dissenting). There is discrimination and dishonor
in the former, and not in the latter -- which explains the 106-year interlude
between our holding that exclusion from juries on the basis of race was unconstitutional,
Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1880),
and our holding that peremptory challenges on the basis of race were unconstitutional,
Batson v. Kentucky, supra.
Although the Court's legal reasoning in this case is largely obscured by anti-male-chauvinist
oratory, to the extent such reasoning is discernible it invalidates much more
than sex-based strikes. After identifying unequal treatment (by separating
individual exercises of peremptory
challenge from the process as a whole), the Court applies the "heightened
scrutiny" mode of equal protection analysis used for sex-based discrimination,
and concludes that the strikes fail heightened scrutiny because they do not
substantially further an important government interest. The Court says that
the only important government interest that could be served by peremptory
strikes is "securing a fair and impartial jury," ante,
at 137, and n. 8. n3 It refuses to accept respondent's argument that these
strikes further that interest by eliminating a group (men) which may be partial
to male defendants, because it will not accept any argument based on "'the
very stereotype the law condemns.'" Ante, at 138 (quoting Powers,
499 U.S. at 410). This analysis, entirely eliminating the only allowable argument,
implies that sex-based strikes do not even rationally further a legitimate
government interest, let alone pass heightened scrutiny. That places all
peremptory strikes based on any group characteristic at risk, since
they can all be denominated "stereotypes." Perhaps, however (though
I do not see why it should be so), only the stereotyping of groups entitled
to heightened or strict scrutiny constitutes "the very stereotype the
law condemns" -- so that other stereotyping (e. g., wide-eyed
blondes and football players are dumb) remains OK. Or perhaps when the Court
refers to "impermissible stereotypes," ante, at 139, n.
11, it means the adjective to be limiting rather than descriptive -- so that
we can expect to learn from the Court's peremptory/stereotyping jurisprudence
in the future which stereotypes the Constitution frowns upon and which it
does not.
Even if the line of our later cases guaranteed by today's decision limits
the theoretically boundless Batson principle to race, sex, and perhaps
other classifications subject to heightened scrutiny (which presumably would
include religious belief, see Larson v. Valente, 456 U.S.
228, 244-246, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982)), much damage has been
done. It has been done, first and foremost, to the peremptory challenge system,
which loses its whole character when (in order to defend against "impermissible
stereotyping" claims) "reasons" for strikes must be given.
The right of peremptory challenge "'is, as Blackstone says, an arbitrary
and capricious right; and it must be exercised with full freedom, or it fails
of its full purpose.'" Lewis v. United States, 146
U.S. 370, 378, 36 L. Ed. 1011, 13 S. Ct. 136 (1892), quoting Lamb
v. State, 36 Wis. 424, 427 (1874). See also Lewis, supra,
at 376; United States v. Marchant, 25 U.S. 480, 12 Wheat.
480, 482, 6 L. Ed. 700 (1827) (Story, J.); 4 W. Blackstone, Commentaries *
353. The loss of the real peremptory will be felt most keenly by the criminal
defendant, see Georgia v. McCollum , 505 U.S. 42, 120 L.
Ed. 2d 33, 112 S. Ct. 2348 (1992), whom we have until recently thought "should
not be held to accept a juror, apparently indifferent, whom he distrusted
for any reason or for no reason." Lamb, supra, at 426.
And make no mistake about it: there really is no substitute for the peremptory.
Voir dire (though it can be expected to expand as a consequence of
today's decision) cannot fill the gap. The biases that go along with group
characteristics tend to be biases that the juror himself does not perceive,
so that it is no use asking about them. It is fruitless to inquire of a male
juror whether he harbors any subliminal prejudice in favor of unwed fathers.
And damage has been done, secondarily, to the entire justice system, which
will bear the burden of the expanded quest for "reasoned peremptories"
that the Court demands. The extension of Batson to sex, and almost
certainly beyond, cf. Batson, 476 U.S. at 124 (Burger, C. J., dissenting),
will provide the basis for extensive collateral litigation, which especially
the criminal defendant (who litigates full time and cost free) can be expected
to pursue. While demographic reality places some limit on the number of cases
in which race-based challenges will be an issue, every case contains a potential
sex-based claim. Another consequence, as I have mentioned, is a lengthening
of the voir dire process that already burdens trial courts.
The irrationality of today's strike-by-strike approach to equal protection
is evident from the consequences of extending it to its logical conclusion.
If a fair and impartial trial is a prosecutor's only legitimate goal; if adversarial
trial stratagems must be tested against that goal in abstraction from their
role within the system as a whole; and if, so tested, sex-based stratagems
do not survive heightened scrutiny -- then the prosecutor presumably violates
the Constitution when he selects a male or female police officer to testify
because he believes one or the other sex might be more convincing in the context
of the particular case, or because he believes one or the other might be more
appealing to a predominantly male or female jury. A decision to stress one
line of argument or present certain witnesses before a mostly female jury
-- for example, to stress that the defendant victimized women -- becomes,
under the Court's reasoning, intentional discrimination by a state actor on
the basis of gender.
In order, it seems to me, not to eliminate any real denial of equal protection,
but simply to pay conspicuous obeisance to the equality of the sexes, the
Court imperils a practice that has been considered an essential part of fair
jury trial since the dawn of the common law. The Constitution of the United
States neither requires nor permits this vandalizing of our people's traditions.
For these reasons, I dissent.