| Batson v. Kentucky
(No. 84-6263)
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| Syllabus
| Opinion
[ Powell ] | Concurrence
[ White ] | Concurrence
[ Marshall ] | Concurrence
[ Stevens ] | Concurrence
[ O'Connor ] | Dissent
[ Burger ] | Dissent
[ Rehnquist ] |
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Batson v. Kentucky
CERTIORARI TO THE SUPREME COURT OF KENTUCKY
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
The Court states, in the opening line of its opinion, that this case involves only a reexamination of 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.
Ante at 82 (footnote omitted). But in reality the majority opinion deals with much more than "evidentiary burden[s]." With little discussion and less analysis, the Court also overrules one of the fundamental substantive holdings of Swain, namely, that the State may use its peremptory challenges to remove from the jury, on a case-specific basis, prospective jurors of the same race as the defendant. Because I find the Court's rejection of this holding both ill-considered and unjustifiable under established principles of equal protection, I dissent.
In Swain, this Court carefully distinguished two possible scenarios involving the State's use of its peremptory challenges to exclude blacks from juries in criminal cases. In Part III of the majority opinion, the Swain Court concluded that the first of these scenarios, namely, the exclusion of blacks
for reasons wholly unrelated to the outcome of the particular case on trial . . . to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population,
380 U.S. at 224, might violate the guarantees of equal protection. See id. at 222-228. The Court felt that the important and historic purposes of the peremptory challenge were not furthered by the [p135] exclusion of blacks "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be." Id. at 223 (emphasis added). Nevertheless, the Court ultimately held that
the record in this case is not sufficient to demonstrate that th[is] rule has been violated. . . . Petitioner has the burden of proof, and he has failed to carry it.
Id. at 224, 226. Three Justices dissented, arguing that the petitioner's evidentiary burden was satisfied by testimony that no black had ever served on a petit jury in the relevant county. See id. at 228-247 (Goldberg, J., joined by Warren, C.J., and Douglas, J., dissenting).
Significantly, the Swain Court reached a very different conclusion with respect to the second kind of peremptory challenge scenario. In Part II of its opinion, the Court held that the State's use of peremptory challenges to exclude blacks from a particular jury based on the assumption or belief that they would be more likely to favor a black defendant does not violate equal protection. Id. at 209-222. JUSTICE WHITE, writing for the Court, explained:
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 [1887]. 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 [v. United States, 146 U.S. 370,] 376 [1892], 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 [p136] 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. . . . 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. . . .
Id. at 220-222 (emphasis added; footnotes omitted). At the beginning of Part III of the opinion, the Swain Court reiterated:
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.
Id. at 223 (emphasis added).
Even the Swain dissenters did not take issue with the majority's position that the Equal Protection Clause does not prohibit the State from using its peremptory challenges to exclude blacks based on the assumption or belief that they would be partial to a black defendant. The dissenters emphasized that their view concerning the evidentiary burden facing a defendant who alleges an equal protection claim based on the State's use of peremptory challenges
would [p137] [not] mean that where systematic exclusion of Negroes from jury service has not been shown, a prosecutor's motives are subject to question or judicial inquiry when he excludes Negroes or any other group from sitting on a jury in a particular case.
Id. at 245 (Goldberg, J., dissenting) (emphasis added).
The Court today asserts, however, that
the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely . . . on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.
Ante at 89. Later, in discussing the State's need to establish a nondiscriminatory basis for striking blacks from the jury, the Court states that
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.
Ante at 97. Neither of these statements has anything to do with the "evidentiary burden" necessary to establish an equal protection claim in this context, and both statements are directly contrary to the view of the Equal Protection Clause shared by the majority and the dissenters in Swain. Yet the Court in the instant case offers absolutely no analysis in support of its decision to overrule Swain in this regard, and in fact does not discuss Part II of the Swain opinion at all.
I cannot subscribe to the Court's unprecedented use of the Equal Protection Clause to restrict the historic scope of the peremptory challenge, which has been described as "a necessary part of trial by jury." Swain, 380 U.S. at 219. In my view, there is simply nothing "unequal" about the State's using its peremptory challenges to strike blacks from the jury in cases involving black defendants, so long as such challenges are also used to exclude whites in cases involving white defendants, Hispanics in cases involving Hispanic defendants, Asians in cases involving Asian defendants, and so [p138] on. This case-specific use of peremptory challenges by the State does not single out blacks, or members of any other race for that matter, for discriminatory treatment. [n1] Such use of peremptories is, at best, based upon seat-of-the-pants instincts, which are undoubtedly crudely stereotypical and may in many cases be hopelessly mistaken. But as long as they are applied across-the-board to jurors of all races and nationalities, I do not see -- and the Court most certainly has not explained -- how their use violates the Equal Protection Clause.
Nor does such use of peremptory challenges by the State infringe upon any other constitutional interests. The Court does not suggest that exclusion of blacks from the jury through the State's use of peremptory challenges results in a violation of either the fair-cross-section or impartiality component of the Sixth Amendment. See ante at 84-85, n. 4. And because the case-specific use of peremptory challenges by the State does not deny blacks the right to serve as jurors in cases involving nonblack defendants, it harms neither the excluded jurors nor the remainder of the community. See ante at 87-88.
The use of group affiliations, such as age, race, or occupation, as a "proxy" for potential juror partiality, based on the assumption or belief that members of one group are more likely to favor defendants who belong to the same group, has long been accepted as a legitimate basis for the State's exercise of peremptory challenges. See Swain, supra; United States v. Leslie, 783 F.2d 541 (CA5 1986) (en banc); United States v. Carter, 528 F.2d 844 (CA8 1975), cert. denied, 425 U.S. 961 (1976). Indeed, given the need for reasonable [p139] limitations on the time devoted to voir dire, the use of such "proxies" by both the State and the defendant [n2] may be extremely useful in eliminating from the jury persons who might be biased in one way or another. The Court today holds that the State may not use its peremptory challenges to strike black prospective jurors on this basis without violating the Constitution. But I do not believe there is anything in the Equal Protection Clause, or any other constitutional provision, that justifies such a departure from the substantive holding contained in Part II of Swain. Petitioner in the instant case failed to make a sufficient showing to overcome the presumption announced in Swain that the State's use of peremptory challenges was related to the context of the case. I would therefore affirm the judgment of the court below.
1. I note that the Court does not rely on the argument that, because there are fewer "minorities" in a given population than there are "majorities," the equal use of peremptory challenges against members of "majority" and "minority" racial groups has an unequal impact. The flaws in this argument are demonstrated in Judge Garwood's thoughtful opinion for the en banc Fifth Circuit in United States v. Leslie, 783 F.2d 541, 558-561 (1986).
2. See, e.g., Commonwealth v. DiMatteo, 12 Mass.App. 547, 427 N.E.2d 754 (1981) (under State Constitution, trial judge properly rejected white defendant's attempted peremptory challenge of black prospective juror).
