Powers v. Ohio (89-5011), 499 U.S. 400 (1991)
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No. 89-5011


[April 1, 1991]

Justice Scalia, with whom The Chief Justice joins, dissenting.

Since in my view today's decision contradicts well established law in the area of equal protection and of standing, I respectfully dissent.


The Court portrays its holding as merely the logical application of our prior jurisprudence concerning equal-protection challenges to criminal convictions. It is far from that.

Over a century ago, in Strauder v. West Virginia, 100 U.S. 303 (1880), we held that a statute barring blacks from service on grand or petit juries denied equal protection of the laws to a black man convicted of murder by an all-white jury. Interpreting the recently enacted Fourteenth Amendment, we concluded that the statute violated the black defendant's equal protection right for the following reason:

"It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?" Id., at 309.

It was not suggested in Strauder, and I am sure it was quite unthinkable, that a white defendant could have had his conviction reversed on the basis of the same statute. The statute did not exclude members of his race, and thus did not deprive him of the equal protection of the laws.

Since Strauder, we have repeatedly invalidated criminal convictions on equal protection grounds where state laws or practices excluded potential jurors from service on the basis of race. See Vasquez v. Hillery, 474 U.S. 254 (1986); Castaneda v. Partida, 430 U.S. 482 (1977); Alexander v. Louisiana, 405 U.S. 625 (1972); Sims v. Georgia, 389 U.S. 404 (1967) (per curiam); Jones v. Georgia, 389 U.S. 24 (1967) (per curiam); Whitus v. Georgia, 385 U.S. 545 (1967); Coleman v. Alabama, 377 U.S. 129 (1964); Arnold v. North Carolina, 376 U.S. 773 (1964) (per curiam); Eubanks v. Louisiana, 356 U.S. 584 (1958); Reece v. Georgia, 350 U.S. 85 (1955); Williams v. Georgia, 349 U.S. 375 (1955); Hernandez v. Texas, 347 U.S. 475 (1954); Avery v. Georgia, 345 U.S. 559 (1953); Cassell v. Texas, 339 U.S. 282 (1950); Patton v. Mississippi, 332 U.S. 463 (1947); Hill v. Texas, 316 U.S. 400 (1942); Smith v. Texas, 311 U.S. 128 (1940); Pierre v. Louisiana, 306 U.S. 354 (1939); Hale v. Kentucky, 303 U.S. 613 (1938) (per curiam); Hollins v. Oklahoma, 295 U.S. 394 (1935) (per curiam); Norris v. Alabama, 294 U.S. 587 (1935); Rogers v. Alabama, 192 U.S. 226 (1904); Carter v. Texas, 177 U.S. 442 (1900); Bush v. Kentucky, 107 U.S. 110 (1883); Neal v. Delaware, 103 U.S. 370 (1881). In all these cases, the basis for our decision was that the State had violated the defendant's right to equal protection, because it had excluded jurors of his race. As we said in Carter v. Texas: "Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States." 177 U.S., at 447 (emphasis added).

Twenty-six years ago, in Swain v. Alabama, 380 U.S. 202 (1965), we first considered an equal protection claim against peremptory challenges by the prosecution. In that case, a black man had been convicted and sentenced to death by an all-white jury, the prosecutor having peremptorily struck six prospective black jurors from the venire. We rejected the defendant's equal protection claim. Our opinion set forth at length the "very old credentials" of the peremptory challenge, id., at 212, see id., at 212-219, discussed the reasons for the "long and widely held belief" that it is "a necessary part of trial by jury," id., at 219, see id., at 219-221, and observed that it is "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," id., at 220. To accept petitioner's equal protection claim, we said, "would establish a rule wholly at odds with the peremptory challenge system as we know it," id., at 222, a system in which "Negro and white, Protestant and Catholic, are alike subject to being challenged without cause," id., at 221. But while permitting race-based challenges for the traditional purpose of eliminating "irrational . . . suspicions and antagonisms," id., at 224, "related to the case [the prosecutor] is trying, the particular defendant involved and the particular crime charged," id., at 223, we strongly suggested that it would violate the Equal Protection Clause to use race-based challenges as a surrogate for segregated jury lists, employing them "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim," ibid., in order to "deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population," id., at 224.

Five years ago we revisited the issue, and overruled Swain. In Batson v. Kentucky, 476 U.S. 79 (1986), we held 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," id., at 95 (emphasis in original), whereupon the prosecution would be required to justify its strikes on race-neutral grounds. Batson, however, like all our other cases upholding an equal protection challenge to the composition of criminal juries, referred to — indeed, it emphasized — the necessity of racial identity between the defendant and the excluded jurors. "[T]he defendant," we said, "first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Id., at 96 (emphasis added, citation omitted). This requirement was repeated several times. "The defendant initially must show that he is a member of a racial group capable of being singled out for differential treatment." Id., at 94 (emphasis added). "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." Id., at 86 (emphasis added). Justice White, concurring, concluded that the abandonment of Swain was justified because "[i]t appears . . . 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." Id., at 101 (emphasis added). Today's opinion for the Court is correct in noting that Batson asserted that "a prosecutor's discriminatory use of peremptory challenges harms the excluded jurors and the community at large," ante, at 5. But there is no contradiction, and Batson obviously saw none, between that proposition and the long-standing and reiterated principle that no defendant except one of the same race as the excluded juror is deprived of equal protection of the laws.

On only two occasions in the past have we considered claims by a criminal defendant of one race that the prosecution had discriminated against prospective jurors of another race. Last Term, in Holland v. Illinois, 493 U. S. — (1990), we held that the prosecution's use of peremptory strikes against black jurors did not deprive a white defendant of his Sixth Amendment right to an impartial jury. No equal protection claim was made in that case. Such a claim was made, however, in Peters v. Kiff, 407 U.S. 493 (1972). There the petitioner, a white man, contended that the State, through its use of segregated jury lists, had excluded blacks from his grand and petit juries, thus denying him due process and equal protection. The case produced no majority opinion, but it is significant that no Justice relied upon the petitioner's equal protection argument. Justice Marshall, joined by Justice Douglas and Justice Stewart, asserted that a defendant has a due process right not to be subjected "to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner." Id., at 502. Justice White, joined by Justice Brennan and Justice Powell, concluded that "the strong statutory policy" contained in the 1875 criminal statute prohibiting disqualification from jury service on racial grounds, 18 U.S.C. 243 entitled the petitioner to challenge the exclusion of blacks from the grand jury that indicted him. 407 U. S., at 507. Chief Justice Burger, joined by Justice Blackmun and then-Justice Rehnquist, contended that there was no basis for assuming that the petitioner had been injured in any way by the alleged discrimination, and noted that "the Court has never intimated that a defendant is the victim of unconstitutional discrimination if he does not claim that members of his own race have been excluded." Id., at 509.

Alexander v. Louisiana, 405 U.S. 625 (1972), involved precisely the sort of claim made here, in the context of an alleged denial of equal protection on the basis of sex. In that case, a black male defendant contended that the State's manner of composing its jury lists had excluded blacks and women from his grand jury, thereby denying him equal protection of the laws. We ultimately found it unnecessary to reach his claim regarding the exclusion of women, but only after saying the following:

"This claim is novel in this Court and, when urged by a male, finds no support in our past cases. The strong constitutional and statutory policy against racial discrimination has permitted Negro defendants in criminal cases to challenge the systematic exclusion of Negroes from the grand juries that indicted them. . . . [T]here is nothing in past adjudications suggesting that petitioner himself has been denied equal protection by the alleged exclusion of women from grand jury service." Id., at 633 (emphasis added).

Similarly, in Castaneda v. Partida, 430 U.S. 482 (1977), in holding that the respondent had successfully established a prima facie case of discrimination against Mexican-Americans in the selection of grand jurors, we said that "in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial under-representation of his race or of the identifiable group to which he belongs." Id., at 494 (emphasis added).

Thus, both before and after Batson, and right down to the release of today's opinion, our jurisprudence contained neither a case holding, nor even a dictum suggesting, that a defendant could raise an equal-protection challenge based upon the exclusion of a juror of another race; and our opinions contained a vast body of clear statement to the contrary. We had reaffirmed the point just last Term in Holland, supra. After quoting the language from Batson requiring the defendant to show that he is a member of the racial group alleged to have been removed from the jury, we contrasted the requirements for standing under the Fourteenth Amendment's Equal Protection Clause and the Sixth Amendment: "We have never suggested, however, that such a requirement of correlation between the group identification of the defendant and the group identification of excluded venire members is necessary for Sixth Amendment standing. To the contrary, our cases hold that the Sixth Amendment entitles every defendant to object to a venire that is not designed to represent a fair cross section of the community, whether or not the systematically excluded groups are groups to which he himself belongs." 493 U. S., at — (emphasis added).

Thus, today's holding cannot be considered in accordance with our prior law. It is a clear departure.


In an apparent attempt to portray the question before us as a novel one, the Court devotes a large portion of its opinion to third-party standing — as though that obvious avenue of rendering the Equal Protection Clause applicable had not occurred to us in the many cases discussed above. Granted, the argument goes, that this white defendant has not himself been denied equal protection, but he has third-party standing to challenge the denial of equal protection to the stricken black jurors. The Court's discussion of third-party standing is no more faithful to our precedent than its description of our earlier equal-protection cases. Before reaching that point, however, there is a prior one: the first-party right upon which the Court seeks to base third-party standing has not hitherto been held to exist.

All citizens have the equal-protection right not to be excluded from jury service (i. e., not to be excluded from grand and petit-jury lists) on the basis of irrelevant factors such as race, Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970), or employment status, cf. Thiel v. Southern Pacific Co., 328 U.S. 217 (1946). As Swain suggested, this principle would also prohibit the systematic exclusion of a particular race or occupation from all jury service through peremptory challenges. When a particular group has been singled out in this fashion, its members have been treated differently, and have suffered the deprivation of a right and responsibility of citizenship. But when that group, like all others, has been made subject to peremptory challenge on the basis of its group characteristic, its members have been treated not differently but the same. In fact, it would constitute discrimination to exempt them from the peremptory strike exposure to which all others are subject. If, for example, men were permitted to be struck but not women, or fundamentalists but not atheists, or blacks but not whites, members of the former groups would plainly be the object of discrimination.

In reply to this, it could be argued that discrimination is not legitimated by being applied, so to speak, indiscriminately; that the unlawfulness of treating one person differ ently on irrelevant grounds is not erased by subjecting everyone else to the same unlawfulness. The response to this is that the stricken juror has not been "treated differently" in the only pertinent sense — that is, in the sense of being deprived of any benefit or subjected to any slight or obloquy. The strike does not deprecate his group, and thereby "stigmatize" his own personality. Unlike the categorical exclusion of a group from jury service, which implies that all its members are incompetent or untrustworthy, a peremptory strike on the basis of group membership implies nothing more than the undeniable reality (upon which the peremptory strike system is largely based) that all groups tend to have particular sympathies and hostilities — most notably, sympathies towards their own group members. Since that reality is acknowledged as to all groups, and forms the basis for peremptory strikes as to all of them, there is no implied criticism or dishonor to a strike. Nor is the juror who is struck because of his group membership deprived of any benefit. It is obvious, as Strauder acknowledged, that a defendant belonging to an identifiable group is benefited by having members of that group on his jury, but it is impossible to understand how a juror is benefited by sitting in judgment of a member of his own group, rather than of another. All qualified citizens have a civic right, of course, to serve as jurors, but none has the right to serve as a juror in a particular case. Otherwise, we would have to permit stricken jurors to complain not only of peremptory challenges that supposedly deny them equal protection, but also of erroneously allowed challenges for cause.

To affirm that the Equal Protection Clause applies to strikes of individual jurors is effectively to abolish the peremptory challenge. As discussed in Swain, "irrelevant" personal characteristics are by definition the basis for using that device; relevant characteristics would produce recusal for cause. And as Swain also pointed out, the irrelevant characteristics relied upon are frequently those that would promptly trigger invalidation in other contexts — not only race, but religion, sex, age, political views, economic status. Not only is it implausible that such a permanent and universal feature of our jury-trial system is unconstitutional, but it is unlikely that its elimination would be desirable. The peremptory challenge system has endured so long because it has unquestionable advantages. As we described in Holland, 493 U. S., at —, it is a means of winnowing out possible (though not demonstrable) sympathies and antagonisms on both sides, to the end that the jury will be the fairest possible. In a criminal-law system in which a single biased juror can prevent a deserved conviction or a deserved acquittal, the importance of this device should not be minimized.

Until Batson, our jurisprudence affirmed the categorical validity of peremptory strikes so long as they were not used as a substitute for segregated jury lists. Batson made an exception, but one that was narrow in principle and hence limited in effect. It announced an equal-protection right, not of prospective jurors to be seated without regard to their race, but of defendants not to be tried by juries from which members of their race have been intentionally excluded. While the opinion refers to "[t]he harm" that "discriminatory jury selection" inflicts upon "the excluded juror," 476 U. S., at 87, that is not a clear recognition, even in dictum, that the excluded juror has his own cause of action — any more than its accompanying reference to the harm inflicted upon "the entire community," ibid., suggests that the entire community has a cause of action. To the contrary, an independent cause of action on the juror's part is quite incompatible with the opinion's repeated insistence that the stricken juror must be of the same race as the defendant. It would be absurd to suppose that a black juror has a right not to be discriminated against, through peremptory strike, in the trial of a black defendant, but not in the trial of a white defendant.

In sum, we have never held, or even said, that a juror has an equal-protection right not to be excluded from a particular case through peremptory challenge; and the existence of such a right would call into question the continuing existence of a centuries-old system that has important beneficial effects. Thus, even if the Court's discussion of Powers' third-party standing to raise the rights of stricken jurors were correct, it would merely replace the mystery of why he has a cause of action with the mystery of why they do.


In any event, the Court's third-party standing analysis is not correct. The Court fails to establish what we have described as the very first element of third-party standing: the requirement of "injury in fact." See, e. g., Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623, n. 3 (1989); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 954-955 (1984). The Court's attempt at constructing an injury in fact to petitioner goes as follows: When the prosecution takes race into account in exercising its peremptory challenges, it "casts doubt on the integrity of the judicial process," and "invites cynicism respecting the jury's neutrality and its obligation to adhere to the law," ante, at 11 (internal quotations omitted), as a result of which "[t]he verdict will not be accepted or understood [as fair]," ante, at 12. The Court must, of course, speak in terms of the perception of fairness rather than its reality, since only last Term we held categorically that the exclusion of members of a particular race from a jury does not produce an unfair jury, and suggested that in some circumstances it may increase fairness. See Holland, supra, at —. But in any event, how do these alleged perceptions of unfairness, these "castings of doubt" and "invitations to cynicism," establish that the defendant has been injured in fact? They plainly do not. Every criminal defendant objecting to the introduction of some piece of evidence or to some trial procedure on the ground that it violates the rights of a third party can claim a similar "perception of unfairness," but we deny standing. "Injury in perception" would seem to be the very antithesis of "injury in fact." As the very words suggest, the latter sort of injury must be "distinct and palpable," Warth v. Seldin, 422 U.S. 490, 501 (1975) (emphasis added), "particular [and] concrete," United States v. Richardson, 418 U.S. 166, 177 (1974) (emphasis added), "specific [and] objective," Laird v. Tatum, 408 U.S. 1, 14 (1972) (emphasis added). Today's opinion makes a mockery of that requirement. It does not even pretend that the peremptory challenges here have caused this defendant tangible injury and concrete harm — but rather (with careful selection of both adjectives and nouns) only a "cognizable injury," producing a "concrete interest in challenging the practice." Ante, at 10 (emphasis added). I have no doubt he now has a cognizable injury; the Court has made it true by saying so. And I have no doubt he has a concrete interest in challenging the practice at issue here; he would have a concrete interest in challenging a mispronunciation of one of the jurors' names, if that would overturn his conviction. But none of this has anything to do with injury in fact.

In response, however, it could be asserted that the requirement of injury in fact — and, more specifically, that element of the requirement which demands that the cause-andeffect relationship between the illegality and the alleged harm be more than speculative, see Allen v. Wright, 468 U.S. 737, 750-752 (1984); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 40-46 (1976) — has never been applied to a litigant's claim of illegality relating to an aspect of criminal or civil procedure. The available concrete injury in such cases, of course, is the conviction or judgment — or more precisely, the punishment that attends the conviction and the economic or other loss that attends the judgment. But courts have never required that injury to be connected with the alleged procedure-related illegality by anything more than speculation. If, for example, one of the elements of criminal due process has been denied, or one of the constitutionally specified attributes of a prosecution has been omitted, we do not require the defendant to establish, by more than speculation, that he would not otherwise have been convicted. To the contrary, standing is accorded, and relief will be granted unless the government can establish beyond a reasonable doubt that the error was harmless. See, e. g., Rose v. Clark, 478 U.S. 570 (1986).

We do not, however, extend this special treatment of injury in fact in the litigation context to third-party standing. Indeed, we do not even recognize third-party standing in the litigation context — that is, permit a civil or criminal litigant to upset an adverse judgment because the process by which it was obtained involved the violation of someone else's rights — even when the normal injury-in-fact standard is amply met. If, for example, the only evidence supporting a conviction (so that the causality is not remotely speculative) consists of the fruit of a search and seizure that violated a third party's Fourth Amendment rights, we will not permit those rights to be asserted by the defendant. See, e. g., Rawlings v. Kentucky, 448 U.S. 98 (1980); United States v. Payner, 447 U.S. 727 (1980); Rakas v. Illinois, 439 U.S. 128 (1978). We would reach the same result with respect to reliable evidence obtained in violation of another person's Fifth Amendment right against self-incrimination, cf. id., at 140, n. 8. Likewise (assuming we follow the common law) with respect to evidence introduced in violation of someone else's confidentiality privilege. See, e. g., Commonwealth v. McKenna, 206 Pa. 317, 322, 213 A. 2d 223, 226 (1965); Butz v. State, 221 Md. 68, 73, 156 A. 2d 423, 426 (1959); see generally Annot., 2 A. L. R. 2d 645 (1948). These cases can, to be sure, be explained on the basis that the rights in question are "personal," rather than on the basis of lack of third-party standing, but the result comes to the same. It is difficult to accept the proposition that, even though introduction of the fruits of a third party's illegally obtained confession, which unquestionably produces the defendant's conviction, is not a ground for reversal, racial discrimination against a prospective juror, which only speculatively produces the conviction, is. There is, in short, no sound basis for abandoning the normal injuryin-fact requirements applicable to third-party standing, and supplanting them with an "interest in challenging the practice" standard, simply because a trial-related violation is at issue. If anything, that consideration should lead to the conclusion that there is no third-party standing at all.


Last Term, in Holland, we noted that "[t]he tradition of peremptory challenges for both the prosecution and the accused was already venerable at the time of Blackstone, . . . was reflected in a federal statute enacted by the same Congress that proposed the Bill of Rights, . . . was recognized in an opinion by Justice Story to be part of the common law of the United States, . . . and has endured through two centuries in all the States. . . ." 493 U. S., at —. We concluded from this that "[a]ny theory of the Sixth Amendment leading to [the] result" that "each side may not . . . use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side" is "implausible." Ibid. What is true with respect to the Sixth Amendment is true with respect to the Equal Protection Clause as well.

Batson was, as noted earlier, a clear departure from our jurisprudence, and the precise scope of the exception it has created remains to be determined. It is unclear, for example, whether it applies to government peremptories in civil cases; whether it applies to peremptories by parties other than the government; and whether it applies to peremptories based on the defendant's sex, religion, age, economic status and any other personal characteristic unrelated to the capacity for responsible jury service. All these extensions are arguably within the logic of the decision. This case, however, involves not a clarification of Batson, but the creation of an additional, ultra-Batson departure from established law. Petitioner seeks not some further elaboration of the right to have his racial identity disregarded in the selection of his jury, but rather the announcement of a new right to have his jury immune from the exclusion of people of any race; or the announcement of a new power to assert a new right of jurors never to be excluded from any jury on the basis of their race. Not only does this exceed the rationale of Batson, but it exceeds Batson's emotional and symbolic justification as well. Notwithstanding history, precedent, and the significant benefits of the peremptory-challenge system, it is intolerably offensive for the State to imprison a person on the basis of a conviction rendered by a jury from which members of that person's minority race were carefully excluded. I am unmoved, however, and I think most Americans would be, by this white defendant's complaint that he was sought to be tried by an all-white jury, or that he should be permitted to press black jurors' unlodged complaint that they were not allowed to sit in judgment of him.

The Court's decision today is unprecedented in law, but not in approach. It is a reprise, so to speak, of Miranda v. Arizona, 384 U.S. 436 (1966), in that the Court uses its key to the jail-house door not to free the arguably innocent, but to threaten release upon the society of the unquestionably guilty unless law enforcement officers take certain steps that the Court newly announces to be required by law. It goes beyond Miranda, however, in that there, at least, the mandated steps related to the defendant's own rights, if not to his guilt. Here they relate to neither. The sum and substance of the Court's lengthy analysis is that, since a denial of equal protection to other people occurred at the defendant's trial, though it did not affect the fairness of that trial, the defendant must go free. Even if I agreed that the exercise of peremptory strikes constitutes unlawful discrimination (which I do not), I would not understand why the release of a convicted murderer who has not been harmed by those strikes is an appropriate remedy.

Judging from the Court's opinion, we can expect further, wide-ranging use of the jailhouse key to combat discrimination. Convictions are to be overturned, apparently, whenever "race is implicated in the trial" — "by casting doubt upon the credibility or dignity of a witness, or . . . upon the standing or due regard of an attorney who appears in the cause," or even by suggesting "an alleged racial motivation of the defendant or a victim." Ante, at 11. To me this makes no sense. Lofty aims do not justify every step intended to achieve them. Today's supposed blow against racism, while enormously self-satisfying, is unmeasured and misdirected. If for any reason the State is unable to reconvict Powers for the double murder at issue here, later victims may pay the price for our extravagance. Even if such a tragedy, in this or any case, never occurs, the prosecutorial efforts devoted to retrials will necessarily be withheld from other endeavors, as will the prosecutorial efforts devoted to meeting the innumerable Powers claims that defendants of all races can be relied upon to present — again with the result that crime goes unpunished and criminals go free.

I respectfully dissent.