[ Kennedy ]
[ Breyer ]
BERTRAM RICE, WARDEN, et al.,
STEVEN MARTELL COLLINS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[January 18, 2006]
Justice Breyer, with whom Justice Souter joins, concurring.
Twenty years ago Justice Thurgood Marshall warned that the test of Batson v. Kentucky, 476 U.S. 79 (1986), would fail to ferret out unconstitutional discrimination in the selection of jurors. Id., at 102103 (concurring opinion) (The decision today will not end the racial discrimination that peremptories inject into the jury-selection process). In my view, history has proved Justice Marshall right. See Miller-El v. Dretke, 545 U.S. ___, ___ (2005) (slip op., at 1) (Breyer, J., concurring). And todays case, like Miller-El, helps to illustrate Batsons fundamental failings.
For one thing, the prosecutors inability in this case to provide a clear explanation of why she exercised her peremptory challenges may well reflect the more general fact that the exercise of a peremptory challenge can rest upon instinct not reason. Insofar as Batson asks prosecutors to explain the unexplainable, how can it succeed? Miller-El, 545 U.S., at ___ (slip op., at 23) (Breyer, J., concurring).
For another thing, the trial judges uncertainty about the legal validity of the exercise of peremptory challenges in this case may reflect the more general fact that, sometimes, no one, not even the lawyer herself, can be certain whether a decision to exercise a peremptory challenge rests upon an impermissible racial, religious, gender-based, or ethnic stereotype. Ibid. See also Batson, supra, at 106 (Marshall, J., concurring) (noting unconscious internalization of racial stereotypes). How can trial judges second-guess an instinctive judgment the underlying basis for which may be a form of stereotyping invisible even to the prosecutor? Miller-El, supra, at ___ (slip op., at 2) (Breyer, J., concurring).
Finally, the case before us makes clear that ordinary mechanisms of judicial review cannot assure Batsons effectiveness. The reasons are structural. The trial judge is best placed to consider the factors that underlie credibility: demeanor, context, and atmosphere. And the trial judge is best placed to determine whether, in a borderline case, a prosecutors hesitation or contradiction reflect (a) deception, or (b) the difficulty of providing a rational reason for an instinctive decision. Appellate judges cannot on the basis of a cold record easily second-guess a trial judges decision about likely motivation. These circumstances mean that appellate courts will, and must, grant the trial courts considerable leeway in applying Batson. See Hernandez v. New York, 500 U.S. 352 (1991). As the present case illustrates, considerations of federalism require federal habeas courts to show yet further deference to state-court judgments. See 28 U.S.C. § 2254(d)(2) (state-court factual determination must stand unless unreasonable).
The upshot is an unresolvable tension
between, on the one hand, what Blackstone called an inherently
I have argued that legal life without peremptories is no longer unthinkable. Miller-El, supra, at ___ (slip op., at 67) (concurring opinion) (citing, inter alia, the experience of England). I continue to believe that we should reconsider Batsons test and the peremptory challenge system as a whole. Nonetheless, because the Court correctly applies the present legal framework, I concur in its opinion.