*1 BATSON KENTUCKY Argued No. 84-6263. April December 1985 Decided *2 Court, Brennan, Powell, J., opinion delivered the which O’Connor, JJ., White, Marshall, Blackmun, Stevens, joined. 100, Marshall, J., White, J., p. post, p. concurring filed post, Stevens, J., Brennan, opinions. concurring opinion, filed a in which O’Connor, J., concurring opinion, post, J., joined, post, p. 108. filed a Rehnquist, Burger, J., dissenting opinion, in p. 111. C. filed a which Rehnquist, J., J., p. dissenting opinion, joined, post, 112. filed Burger, J., joined, post, p. 134. which C. *3 David Niehaus argued
J. the cause for With petitioner. Jr., Daniel T. Frank Heft, W. him and on the briefs were Goyette. Pearson,
Rickie L. of Ken- Attorney Assistant General him on the the cause for With argued respondent. tucky, Armstrong, General, and Carl David L. Attorney brief were Miller, Jr., T. General. Attorney Assistant
Deputy Wallace argued Solicitor General the cause for the amicus curiae affirmance. With urging United States Acting Fried, Assist General Solicitor him the brief were on * Sidney Attorney Trott, and M. Glazer. General ant filed for the NAACP urging curiae reversal were * Briefs of amici Chambers, Fund, Inc., by Julius LeVonne Educational Legal Defense and Amsterdam, Winter, Ralston, Anthony and L. G. Stephen Steven Charles Rabinove; Rights Under Lawyers’ for Civil for the Committee Samuel Fishman, Sullivan, Norman Kapp, Robert H. Barry Fred N. by Law Chachkin; Robinson, for Michael Redlich, and L. and Norman J. William by Shapiro. R. McCray et al. Steven Miller, Kuebler, E. and Jack Weiss, Robert J. Donald A. Robert E. Association, Attorneys District for the National Yelverton filed a brief Inc., urging curiae affirmance. as amicus and De- Legal Aid for the National were filed of amici curiae Briefs TJnsinn; Holtzman and for Elizabeth by Patricia fender Association se, Holtzman, D. Underwood. and Barbara pro Elizabeth 82 of the delivered the Court. opinion Powell
Justice of Swain v. us reexamine that case portion This requires Alabama, (1965), evidentiary 202 concerning he criminal defendant who claims that has on a placed burden of pe- the State’s use protection through been denied equal his race from the exclude members of remptory challenges petit jury.1
I
Petitioner,
man,
Kentucky
was indicted
a black
of stolen
second-degree
receipt
charges
burglary
Circuit Court,
the first
of trial
Jefferson
day
On
goods.
dire
voir
venire,
ex-
examination
conducted
judge
cause,
permitted
parties
cused certain
jurors
construing
courts
their State’s
Following the lead of number
state
Constitution,
recently
accepted
Appeals
two Federal Courts of
have
jurors
peremptory challenges
particular
used to strike black
in a
view that
Jabe,
Amendment. Booker v.
The
convicted
on both counts. On
Supreme
Kentucky, petitioner pressed,
to the
Court of
among
argument concerning
prosecu
claims,
other
peremptory challenges. Conceding
tor’s use
that Swain
supra, apparently
equal protec
Alabama,
an
foreclosed
solely
prosecutor’s
tion claim based
on the
conduct
this
petitioner urged
case,
court
follow decisions of other
People Wheeler,
22 Cal.
States,
3d
84 engaged prosecutor had a that the the facts showed discriminatory challenges in this case and estab-
“pattern” of equal protection under Swain. violation an lished single Kentucky Supreme affirmed. Court of adopt petitioner’s paragraph, invitation court declined supra, reasoning People Wheeler, and Common v. recently supra. that it observed Soares, The court wealth v. that a Swain, and had held reliance on reaffirmed its had alleging demon fair cross section must lack of a defendant group jurors systematic from the ve of a exclusion strate 924 McFerron, 680 S. W. 2d v. nire. Commonwealth (1985), (1984). granted 1052 certiorari, 471 U. S. We now reverse.
II recognized Alabama, this Court In Swain v. Negroes purposeful on ac or deliberate denial to
“State’s
participation
jurors in the administration
race of
count of
Equal
justice
S.,
Protection Clause.” 380 U.
violates
“consistently
principle
and re
has been
This
at 203-204.
peatedly”
id.,
in numerous decisions of
reaffirmed,
following
preceding
re
Swain.3 We
both
this Court
today.4
principle
affirm
3
(1880); Neal v.
Virginia,
Delaware,
(1935);
Norris
(1881);
587
294 U. S.
85 A century ago, More than a the Court decided that the State equal protection a black denies defendant of the it laws when puts jury him on trial a before from which his members of purposefully race have been excluded. Strauder v. West (1880). Virginia, 303 100 U. decision S. That laid the foun- unceasing dation for the Court’s efforts eradicate racial procedures in discrimination used select the venire jurors from which individual are In Strauder, drawn. explained recently Court that the central of concern rati- put govern- fied Fourteenth Amendment was to an end to mental Id., discrimination on account of race. at 306-307. jurors Exclusion of black citizens from service constitutes primary example of a the evil the Fourteenth Amendment designed was to cure. holding jury racial in discrimination of selection Equal
fends the Protection in Clause, the Court Strauder recognized, right “petit however, that a has no defendant to a jury composed part persons in inor whole of of his own race.” Id., at 305.5 “The number of our races and nationalities way conception” stands of evolution of such de equal protection. Texas, mand of Akins v. 325 398, U. S. (1945).6 right But the defendant have the does to be argument apparent tioner has framed his these terms an effort to inviting directly precedents. avoid the Court to reconsider one of its own hand, petitioner the other claiming On the State has insisted that de- and that we must reconsider Swain to find a con- equal protection nial of agree stitutional violation on this record. We with the State that resolu- petitioner’s properly application equal protection tion claim turns on principles express petitioner’s no view on the merits of Sixth arguments. Amendment Texas, Texas, supra, See Hernandez v. 482; Cassell v. S. 339 U. (1950) Texas, 282, Akins v. (plurality opinion); 398, 286-287 325 U. S. Texas, Delaware, Martin (1945); Neal v. (1906); supra, at 394. 6Similarly, though Sixth guarantees petit jury Amendment that the pool representing will selected from a names a cross section of the Louisiana, Taylor community, (1975), U. S. 522 we have never held pursuant by jury non are members selected tried whose discriminatory Texas, 200 U. criteria. Martin S.
(1906); parte Virginia, Ex guarantees Equal defendant that the Clause Protection from the members his race will not exclude State supra, Strauder, 305,7 of race, on account venire *7 group assumption of race as a are that members his the false qualified jurors, Alabama, 294 as see Norris v. to serve (1935); Delaware, 370, 103 U. Neal v. S. 587, 599 (1881).
Purposeful in of the venire racial discrimination selection protection right equal it de- a because violates defendant’s by jury protection to se- him the that a trial is intended nies body composed very jury of is a . . . of the “The idea a cure. person equals rights peers it is or or of the whose selected neighbors, fellows, of as- determine; is,, that his summoned to society persons having legal in as the same status sociates, supra, Strauder, 308; at v. that which he holds.” see Carter (1970). County, Jury S. Comm’n Greene U. of occupied position system petit jury in our of a central has against safeguarding person justice a of crime accused arbitrary power by prosecutor judge. Duncan of exercise (1968).8 ve- Louisiana, 391 U. S. Those on the v. “petit actually requires juries that chosen must that the Sixth Amendment community groups distinctive in the mirror the reflect various id., concept Indeed, impossible apply a population,” at 538. it would petit jury heteroge of proportional representation to the view society. impossibility by the nature our Such is illustrated neous not unconstitutional. Wil jury persons holding Court’s that six (1970). Florida, liams v. 78, 102-103 Texas, Texas, supra, 482; supra, Hernandez v. Cassell v. at at See Texas, Delaware, supra, supra, Akins v. Neal v. 403; 287; at 394. at Louisiana, Florida, Taylor supra, 530; supra, Williams at v. See & Powell, Jury Crimes, Rev. 1 Trial of 23 Wash. Lee L. at 100. See also (1966). Louisiana, Swain, the In Duncan Court concluded decided after feature right by jury criminal eases was such a fundamental trial protected system justice against it was state action American “indifferently nire must be chosen,”9 to secure the defend- right “protection ant’s under the Fourteenth Amendment to ” liberty against prejudice. of life and race or color Strauder, supra, at 309. jurors only
Racial discrimination in selection of harms not liberty they try. the accused whose life or are summoned to Competence juror ultimately depends to serve as a on an as qualifications ability impartially sessment of individual presented consider evidence at a trial. Thiel v. South person’s Co., ern 328 U. S. 223-224 A Pacific simply juror.” race “is unrelated to his fitness as Id., (Frankfurter, dissenting). long ago J., As Strauder, recognized by denying person therefore, the Court participation service on account of race, his the State unconstitutionally against juror. discriminated the excluded Jury 100 U. S., 308; see Carter v. Comm’n Greene County, supra, supra, Delaware, Neal 329-330; at 386. discriminatory jury The harm from selection extends be- *8 yond juror that inflicted on the defendant and the excluded to community. procedures pur- touch the entire Selection that posefully persons juries public exclude black undermine system justice. confidence in the fairness of our (1946);McCray States, Ballard v. United 329 187, U. S. 195 (1983) York, New 961, U. S. J., dis- v. (Marshall, certiorari). senting from denial of Discrimination within the by the Due Process Clause of the Fourteenth S., Amendment. 391 U. at emphasized 147-158. The Court that a right by defendant’s to be tried jury peers designed prevent oppression by of his is “to the Government.” Id., jury perform at 156-157. For a to its intended function as a power, official body check on it must be a community. drawn from the Id., States, Glasser v. United 156; at By U. S. 86-88 com- promising representative quality jury, discriminatory selection procedures “juries ready weapons oppress make for officials to those ac- who among unpopular cused individuals chance are numbered or inartic- Texas, Akins supra, (Murphy, J., ulate minorities.” at 408 dissenting). 1899) Blackstone, (Cooley W. in Dun (quoted Commentaries ed. Louisiana, 152). S., can U. pernicious system to judicial it is “a stimulant most because impediment securing prejudice to is an which that race equal justice citizens] [black which the law aims to se- Strauder, S., 100 U. at 308. to all others.” cure
B pro Strauder, invalidated state statute the Court only jurors. Id., at 305. men could serve as vided that white no now has such a law. can confident that State We beyond requires, however, we look the face Constitution defining qualifications juror and also consider of the statute against “protection practices challenged selection to afford through its administrative officers action of the State effecting prohibited Ala Norris v. discrimination.” supra, Texas, 347 bama, 589; Hernandez v. see Virginia, supra, (1954); parte at 346- Ex 475, 478-479 equal protection Thus, the Court has found a denial 347. oper procedures implementing a neutral statute where the grounds,10 persons from the venire on racial ated exclude prohibits made that the Constitution all forms and has clear jurors.11 purposeful racial discrimination selection of largely Court have been concerned While decisions during prin venire, selection with discrimination ciples there also forbid discrimination on account announced petit jury. Fourteenth of race in selection of the Since the protects throughout proceedings an Amendment accused justice, bringing Texas, him Hill
(1942), up pursuant lists the State not draw its procedures but then resort to discrimination “other neutral *9 Avery Georgia, stages process,” 345 in the selection v. (1953); McCray supra, York, 562 v. New at 968
559, 965, see 10 (1967) curiam); g., Georgia, (per E. v. 407 Whitus Sims 548-549; Georgia, S., Avery Georgia, S., v. v. 385 U. at 345 U. at 561. Alabama, S., Texas, 589; S., 294 U. at Martin v. See Norris U. Delaware, 319; S., at Neal v. 103 U. at 397. (Marshall, J., from dissenting denial of certiorari); see also Louisiana, Alexander (1972). 405 U. S.
Accordingly, component jury process selection here, issue the State’s to strike privilege individual jurors through is peremptory challenges, to subject the commands of Protection Equal Clause.12 a Although or prosecutor is dinarily entitled to exercise permitted chal peremptory lenges all, “for reason at long as as that reason is related to his view concerning outcome” of the tried, case to be Robinson, United States (Conn. 421 F. Supp. 467, sub nom. United States v. New 1976), granted mandamus man, (CA2 F. 2d 1977), the Equal Protection Clause forbids the to prosecutor challenge potential jurors on solely account of their race or on assumption black as jurors will be unable group to impartially consider the State’s case against a black defendant.
Ill Strauder never have been announced in principles in any of questioned subsequent decision this Court. express We no views on whether imposes any the Constitution limit of challenges by the exercise defense counsel. express any
Nor techniques lawyers do we on the views used who seek to obtain information community about the in which case is to be tried, likely and about members of the venire which the be generally Dyke, Jury J. drawn. See Van Selection Procedures: Our Un- Representative certain Commitment to Panels 183-189 Prior examination, dire voir which serves as the basis for exercise challenges, lawyers possible prospective jurors, wish to know as much about includ- education, ing status, their age, employment, they and economic so that jurors open can ensure selection who at least have an mind about the jurisdictions, pool jurors case. some where a serves substantial id., time, 116-118, period see counsel also seek learn which juries pool members of served on other cases and the outcome may employ professional those Counsel even investigators eases. to inter- persons particular petit jury. view who have served on a have had no We course, particularly practice. consider effort occasion to Of counsel’s jurors possibly prospective obtain relevant about is to information practice distinguished from the here. issue
90 to review repeatedly been called upon the Court has
Rather, A facts.13 to particular those principles of the application cases, alleging case in these recurring question the de Clause, whether Protection was of the Equal violation discrimina purposeful his burden proving had met fendant S. Georgia, the State. Whitus v. 385 U. tion on the part Texas, 478-481; at supra, Hernandez v. (1967); 550 Texas, 200 Martin v. Texas, 403-404; Akins v. S., 325 U. (1906). was at the heart That also question 316 U. S. Alabama we reexamine today.14 Swain v.
portion
A issues, decide, other among the Court to Swain required denied protection was equal defendant black whether to exclude challenges exercise the State’s S., 380 U. petit jury. race of his members the prosecutor Swain showed that The record 209-210. 13 Mitchell, (1986); Hillery, 474 254 Rose v. See, g., Vasquez v. U. S. e. Partida, (1977); 430 482 Alexan (1979); v. Castaneda 443 U. S. Louisiana, 628-629; Georgia, supra, at S., v. Whitus 405 U. der Alabama, Alabama, (1965); 202, 205 380 U. Coleman 549-550; S. Swain Alabama, 589; (1964); supra, at Neal v. Norris v. 3 Delaware, 394. supra, at commentary. subject has of extensive been 14 Thedecision Swain argued reconsider the decision. that the Court should authors have Some Jury 166-167; Reformation: Dyke, supra, at Federal g., Van E. Imlay, (LA) Institution, Loyola L. 268-270 Rev. Saving Democratic Phase, Kuhn, Jury Next 41S. Cal. L. Rev. (1973); Discrimination: The Note, Peremptory (1968); Rethinking on the Chal Limitations 283-303 Challenge Sys (1985); Note, Peremptory L. Rev. 1357 lenge, 85 Colum. — Race, 39 Miss. Prospective Jurors on the Basis of tematic Exclusion Comment, Blueprint A (1967); v. Alabama: Swain Constitutional L. J. 157 (1966). Jury, 52 L. Rev. 1157 of the All-White Va. Perpetuation for the Jury, Johnson, Mich. L. Rev. and the White Black Innocence also (1985). ad- hand, argued have that we should some commentators On the other Powers, Challenges Saltzburg Peremptory & here to Swain. See L. Rev. Group Representation, Md. Impartiality and Clash Between *11 had peremptory used the challenges State’s to strike the six persons black petit jury included on the Id., venire.. at 210. rejecting While the prove defendant’s claim for failure to purposeful discrimination, the Court nonetheless indicated Equal that the placed Protection Clause some limits on the peremptory State’s challenges. exercise of Id., at 222-224. sought The Court prosecutor’s to accommodate the his- privilege peremptory torical challenge judicial free of con- trol, id., at prohibition 214-220, and the constitutional on persons jury exclusion of from service on account of id., race, at 222-224. While right the Constitution does not confer a to peremptory challenges, (citing id., at 219 Stilson v. United (1919)), States, challenges 250 U. S. those tradition- ally assuring have been viewed as one means of the selection qualified jury, of a and unbiased pre- U. S., at 219.15 To prosecutor’s serve the challenge, nature of the the Court in Swain declined to scrutinize his actions in a particular by relying presumption case on a properly that he challenges. exercised the State’s Id., at 221-222.
The Court went on to observe, however, that State challenges not exercise its Equal contravention of the Pro- impermissible tection prosecutor Clause. It was for a to use challenges his to exclude blacks from the “for reasons wholly particular unrelated to the outcome the casé on deny right trial” or opportunity blacks “the same and participate justice enjoyed by the administration of the population.” Accordingly, Id., white at 224. a black de- prima fendant could make purposeful aout facie case dis- proof peremptory challenge system crimination on that the “being perverted” was example, that manner. Ibid. For purposeful an inference of discrimination would raised on prosecutor, evidence that a “in case case, after whatever the 15 Swain, the Court “very reviewed the old credentials” of the peremptory challenge system widely and noted “long the held belief that peremptory challenge necessary part is a by S., of trial jury.” U. id., 219; see at 212-219. the defend- and whoever crime circumstances, whatever responsible removal for the may be, is victim or the ant by qualified jurors selected Negroes been have who challenges for survived have who jury commissioners petit Negroes serve ever no result with cause, defendant offered Evidence 223. juries.” Id., at defendant While standard. meet did in Swain exercised jurisdiction had prosecutors in the showed jury, no he offered blacks exclude strikes their re- prosecutors were which under proof circumstances beyond of his own jurors the facts striking black sponsible for *12 224-228. Id., at case. teaching following of Swain courts lower of A number striking a num- over repeated of blacks proof of reasoned of the necessary a violation to establish cases was of ber interpretation of this Since Clause.16 Equal Protection proof,17 crippling of burden placed on defendants has Swain prosecutors’ largely challenges immune are now peremptory 16 (CA10 1983); Jenkins, 850, 2d 859-860 F. States 701 g.,E. United v. States United (CA8 v. 1982); 1240, 1245 Boykin, F. 2d States 679 United v. State, 49 Ala. (CA5 1971); Thigpen v. Pearson, 1207, 1213-1218 F. 2d 448 State, 245 Ark. 331, Jackson (1972); v. 666, 2d 673 241, So. 233, 270 App. State, 143, App. Md. (1968); Johnson 9 v. 876, 2d 336, 432 W. S. Johnson, Super. State 125 N. J. (1970); v. 792, 796-797 148-150, A. 2d Shaw, curiam); C. State 284 N. (per v. (1973) 2d 389 311 A. (1973). E. 2d 585 S. Abrams, lower 2. The 2d, and n. McCray v. F. See sys the State proving that of difficulties practical noted have courts from the blacks challenges exclude peremptory has exercised tematically Circuit the Fifth Appeals for Court of As the race. jury on account cases, a number investigate, over have observed, would defendant compo racial jurisdiction, particular in the tried persons race parties both in which the manner jury, and petit venire sition Pearson, 448 F. States United v. challenges. their exercised “most difficult” to be this burden (1971). court believed 1207, 2d ju reflect do not records Ibid. court jurisdictions where In meet. transcribed, the burden voir dire are proceedings and where race rors’ Wheeler, 285-286, 3d, People v. 22 Cal. insurmountable. be would 2d, at 767-768. P. scrutiny. constitutional For reasons that follow, we re- ject evidentiary formulation as inconsistent with stand- ards developed that have been assessing since Swain for prima Equal facie case under the Protection Clause.
B
Since the decision in
explained
Swain, we have
that our
concerning
cases
selection of the
general
venire reflect the
equal protection principle
quality”
gov-
the “invidious
ernmental
racially
action claimed
discriminatory
to be
“must
ultimately
racially
be traced to a
discriminatory purpose.”
Washington
(1976).
Davis,
229, 240
As in
equal protection case, the “burden is, of course,” on the de-
alleges
fendant
discriminatory
who
selection of the venire “to
prove
purposeful
the existence of
discrimination.” Whitus
Georgia,
(citing
U. S., at 550
Tarrance v. Florida, 188
(1903)).
U.
deciding
S. 519
if the defendant has carried
persuasion,
his burden of
a court must undertake “a sensitive
inquiry into such circumstantial and direct evidence of intent
may
Arlington
Heights
available.”
Metropolitan
Housing Development Corp.,
Moreover, recognized Swain, since we have that a black alleging defendant that imper- members of his race have been missibly may excluded from the prima venire make out a 94 showing the that purposeful discrimination of case
facie totality of gives an inference rise facts relevant of the supra, at Davis, Washington v. discriminatory purpose. showing, requisite the makes defendant Once 239-242. adequately racial explain the State shifts burden The 632. S., at Louisiana, 405 U. Alexander v. exclusion. general assertions on mere meet burden cannot State they properly that discriminate not did officials its that Louisi v. Alexander duties. official performed their (1967). Georgia, 389 U. S. v. supra, Jones 632; ana, at “permissible ra that demonstrate must the State Rather, produced procedures have criteria cially selection neutral supra, Louisiana, v. Alexander result.” monochromatic supra, 241.18 at Washington Davis, v. 632; see at of prima case facie necessary showing establish The may be the venire of in selection discrimination purposeful g., v. Castaneda E. decisions. Court’s in this discerned (1977); Louisi v. Alexander 482, 494-495 430 U. S. Partida, initially must show The defendant supra, 631-632. ana, being capable sin group of racial of a member aishe that Partida, v. Castaneda treatment. differential gled for out evidence, defend with supra, In combination 494. by proving in the prima case facie amake then ant been race have his of jurisdiction members particular period of time. an extended over service summoned the venire systematic exclusion of Proof 494. Id., because purposeful discrimination of an inference raises Texas, v. Hernandez bespeaks discrimination.” “result Title VII treatment” under “disparate concerning decisions Our facie burden prima operation explained have ofAct Rights Civil Green, Corp. Douglas See McDonnell rules. proof Burdine, S. U. Community Dept. (1973); Texas Affairs Aikens, Governors Board Service Postal States United (1981); inten the victim he has been alleging party S. 711 U. *14 Texas persuasion. burden ultimate carries discrimination tional Burdine, supra, 252-256. Community Dept. Affairs U. S., at Arlington 482; Heights see Metropolitan Hous ing Development Corp., supra, at 266.
Since the ultimate issue is whether the State has discrimi selecting nated in the defendant’s venire, however, the de may fendant prima establish facie case ways “in other than by long-continued evidence of unexplained absence” of mem bers of many his panels.” race “from Cassell v. Texas, 339 (1950) (plurality opinion). involving cases the venire, this Court prima has found a proof facie case on that members of the defendant’s race substantially were un derrepresented on the venire from jury which his was drawn, and that the venire was practice selected under a providing opportunity “the for discrimination.” Georgia, Whitus v. supra, at 552; see Castaneda v. supra, Partida, at 494; Washington supra, v. Davis, at 241; Alexander v. Louisi supra, ana, at 629-631. This combination of factors raises necessary purposeful inference of discrimination because the Court has declined to attribute to chance the absence of black particular citizens on a array where the selection subject mechanism is to abuse. When sug circumstances gest the need, the trial court must undertake a “factual inquiry” that “takes possible into account all explanatory particular factors” in the case. Alexander v. Louisiana, supra, at 630.
Thus, since the decision in Swain, this Court has rec- ognized that prima defendant make a showing facie purposeful racial discrimination in selection of the venire by relying solely on concerning facts its selection in his case. These decisions are accordance proposition, with the Arlington Heights articulated Metropolitan Housing Development Corp., that “a pattern consistent of officialracial discrimination” necessary is not “a predicate ato violation of Equal Protection single Clause. A invidiously discrimina- tory governmental act” “immunized the absence of such making discrimination in the comparable of other deci- sions.” 429 S.,U. n. 14. evidentiary For require- *15 be- suffer discrimination” must that “several to dictate meats at 965 McCray York, S., 461 U. object, Newv. could one fore certiorari), would dissenting of denial from J., (Marshall, equal protection all.19 promise of the with inconsistent C con assessing prima in the case facie a standards fully have been discriminatory venire of the selection of text supra, Partida, v. Castaneda See Swain. since articulated Al 241-242; S., at Washington Davis, 426 U. v. 494-495; principles supra, These at 629-631. Louisiana, exander a establish a that defendant support conclusion our of purposeful selection discrimination prima case facie prosecutor’s concerning the solely jury evidence petit on the challenges trial. the defendant’s peremptory exercise that must show first defendant case, the such a establish To group, cognizable Castaneda racial aof a he is member prosecutor has exercised that the supra, and Partida, members the venire challenges from remove entitled the defendant Second, race. defendant’s the pe dispute, that nobe there can rely to which fact, as on the practice jury challenges selection remptory constitute discrimi mind to are of a who permits to discriminate “those Finally, the de Georgia, at 562. Avery S.,U. nate.” relevant other and these facts show must fendant prosecutor used that the an inference raise circumstances petit on veniremen practice to exclude in the em factors This combination race. petit of their account venire, jury, as in the selection paneling of the purposeful discrimination. necessary inference raises requisite has made deciding the defendant whether circum- relevant all consider showing, should trial court he claiming that person recognize that VII also Title under Decisions prima may make out a discrimination intentional victim of been the has alleged discrimina concerning the facts solely by relying ease facie 18, supra. cases n. against him. tion against “pattern” black example, of strikes For stances. might give an rise to particular venire jurors in the included prosecutor’s Similarly, the of discrimination. inference during examination voir dire questions statements *16 may support refute an inference challenges exercising his merely examples illus- are discriminatory purpose. These of experienced judges, trial confidence that haveWe trative. the circum- if to decide supervising dire, be able will voir peremptory chal- concerning prosecutor’s of use the stances against prima of discrimination lenges facie case a creates jurors. black showing, prima the bur facie makes a the defendant
Once a neutral with come forward the State shifts to den Though jurors. re challenging black explanation for the full on cases imposes some limitation quirement emphasize challenge, we of the historic peremptory character to the level explanation rise need not prosecutor’s the that McCray v. challenge for cause. justifying of a exercise 2d Jabe, F. 1132;Booker 2d, F. Abrams, 750 pros the pending, But (CA6 1985), 85-1028. No. cert. prima of dis facie case may the defendant’s rebut ecutor challenged jurors of the merely stating he by that crimination judg assumption his intuitive the race on defendant’s —or partial because defendant they to the be would ment—that S., Alabama, 294 U. Norris race. Cf. shared their States, Thompson v. United see 598-599; dissenting of certio (1984) denial from J., (Brennan, rari). forbids the States Equal Clause Protection as the Just assumption on the persons venire the black exclude jurors, unqualified as group serve are blacks as venire strike black States supra, it forbids 86, so particular they in a biased assumption will be men on guar core is black. simply defendant because case ensuring their State citizens that protection, equal antee meaning race, would on account not discriminate will jurors the basis approve the exclusion towe less were assumptions, such solely jurors’ which arise from the race. prosecutor Nor merely by rebut the defendant’s case denying discriminatory “affirming] he had a motive or good [his] making faith in individual selections.” Alexander Louisiana, general 405 U. at 632. If S., these assertions accepted rebutting prima were a defendant’s facie case, Equal Protection illusory Clause “wouldbe but a vain and requirement.” supra, Norris v. Alabama, at 598. The prosecutor explanation therefore must articulate neutral particular related to the case to be tried.20 The trial court duty then will have the to determine if the has defendant es- purposeful tablished discrimination.21
IV The State holding contends that our will eviscerate the fair trial peremptory challenge. served values Conceding *17 guarantee that the right Constitution peremp- does tory challenges and that Swain did state that their use ulti- mately subject equal is protection, to the strictures of argues privilege State of unfettered exercise of challenge importance the system. is of justice vital to the criminal recognize, While we course, that the chal- lenge occupies important position an procedures, in our trial agree today we do not that our decision will undermine the 20The Appeals Court for the Second Circuit observed McCray Abrams, 2d, 750 F. any “[t]here are number of bases” on prosecutor which a reasonably believe that it is desirable to strike a juror who is not excusable for explained cause. As we context, another however, prosecutor give a reasonably specific” must “clear and ex planation “legitimate of his for exercising reasons” challenges. Texas Dept. Community Burdine, S., 450 U. at 258. Affairs 21In a recent Title case, VII sex discrimination we stated “a finding of intentional finding discrimination is a of fact” entitled to appropriate def by reviewing erence court. Anderson City, Bessemer judge’s the trial findings Since in the context under consider ation here largely will turn on credibility, evaluation of a reviewing court ordinarily give should Id., findings those great deference. at 575-576. makes to the contribution the administra- challenge generally reality tion of reflected justice. practice, amply that the chal- many state- and federal-court shows opinions, and at times used to lenge may be, unfortunately been, has trial courts jurors. By requiring discriminate black against sensitive to the use of racially discriminatory peremp- our decision enforces the mandate of tory challenges, equal In justice.22 and furthers ends of view protection for Nation, of our heterogeneous population public respect criminal the rule will be system our of law justice if ensure that no citizen is disqualified we strengthened service because of his race. Nor are we the State’s that our persuaded by suggestion will create serious administrative difficulties. holding of the evidentiary those States a version standard applying courts have not administrative today, experienced we serious recognize s,23 burden and the peremptory challenge system has survived. We to formulate decline, however, particular to be followed timely objection defendant’s procedures upon ato prosecutor’s challenges.24 respect expressed the views in Justice Marshall’s con While we opinion concerning prosecutorial judicial enforcement of our
curring
adopt under the
holding today, we do not share them. The standard we
pe
designed
to ensure that a State does not use
Federal Constitution
remptory challenges
juror because of his race. We
to strike
black
duty
prosecutors will not fulfill their
to exer
have no reason to believe that
Certainly,
challenges only
legitimate purposes.
cise their
this Court
*18
supervising
light
in
voir dire in
judges,
assume that trial
of our deci
today,
identify
prima
purposeful
a
facie case of
dis
sion
will be alert to
practice,
long
think that this historic trial
which
crimination. Nor do we
jury,
impartial
an
should be abolished because of
has served the selection of
apprehension
prosecutors
judges
perform
an
and trial
will not
con
that
scientiously
respective
under the Constitution.
their
duties
Hall,
(1983),
example,
People
For
in
v.
35 Cal. 3d
V pros- timely objection petitioner to the amade case, persons Because venire. the of all black removal ecutor’s requiring objection rejected flatly without the trial court the explanation give we re- action, for his prosecutor to an the proceedings. If the trial court this case for further mand purposeful prima dis- facie, establish, that the facts decides prosecutor forward with does not come the crimination require precedents explanation action, our for his neutral g., v. E. Whitus petitioner’s be reversed. conviction Texas, 347 Georgia, v. Hernandez S., 549-550; 385 U. Mississippi, at 469.25 S., 332 U. Patton v. atS., 482; U.
It is so ordered. White, concurring. Justice holding principal v. Swain the overturns
The Court
(1965),
does
that the Constitution
that his were based on the belief that no black citizen strikes satisfactory juror fairly try could be a a black defendant. agree extent, I to this Swain should be overruled. that, presumption I do so because Swain itself indicated that the legitimacy respect striking per with to the of black venire period sons couldbe overcome evidence that over a of time consistently petit prosecution the had excluded blacks from juries.* prosecutors using This should have warned peremptories assumption on the that no to exclude blacks juror fairly judge black could a black defendant would violate Equal the Protection Clause. appears, practice peremptorily however,
It that the eliminating petit juries in blacks from cases with black de- widespread, agree I an fendants remains so much so that opportunity inquire to should be afforded when this occurs. objects, judge, puts If in the defendant the whom the Court may prosecution trust, considerable determine that the must may respond. persuaded judge If con- otherwise, not challenges that the rest on the belief that blacks could clude fairly try in to This, effect, not a black defendant. attributes prosecutor be eliminated the view that all blacks should prior deal- Hence, from the entire venire. Court’s cases petit juries ing rather than are not without with venires case. relevance emphasizes using peremptory challenges
The to Court inquiry; strike does not end the it is not unconstitu- blacks from the more, to strike one or more blacks tional, without require prosecutor respond jury. judge prosecutor, If who most cases has had does, at all. he prospective jurors, voir dire the will have an a chance to give opportunity reasons for strikes— trial-related his Swain judge with for the trial * Nor would it have been inconsistent prosecutor, response if peremptory challenges of blacks invalidate strikes, objection that he struck blacks because he believed an to his stated jurors, especially in of black they qualified the trial were not to serve defendant.
102 that black satisfactory ground belief than the other some judge defendant. a black jurors to allowed not be should spell of required contours the litigation to out be will Much signifi- today, holding the protection and equal the Court’s trials cannot criminal of the conduct have on it will cant effect has time agree that the the gainsaid. I with Court But judgment. opinion join and I its has, it rule as to come De- in rule announced to the however, adhere would, I (1968), Loui Duncan v. that 631 U. S. Woods,392 v. Stefano (1968), cannot the held that States which 145 391 S. siana, deny jury U. require re did not cases, criminal in serious trials jury grant trial for failure conviction of a state versal prior began the announcement the of date the where trial in was reached result The same decision. in the Duncan retroactivity Illi v. respect of Bloom the with DeStefano (1968), Louisiana, in Daniel v. as it was 194 U. S. nois, 391 (1975) curiam), respect (per to the decision with (1975),holding Taylor U. S. 522 Louisiana, 419 v. panels jury violated systematic of exclusion women Amendments. and Fourteenth Sixth Marshall, concurring.
Justice eloquent opinion Court, for join I Powell’s Justice eliminating step the shameful toward a historic takes which practice juries. of in the selection discrimination of racial pernicious cogently explains nature opinion Court’s The challenges, discriminatory racially use of Equal Pro- to the repugnancy such discrimination ably opinion demonstrates also The Court’s tection Clause. racially proof inadequacy discrimina- burden “justice requires sit ... peremptories tory use of remedy by” case before supinely case after and be flouted my express separately write I nonetheless is available.1 today the racial not end discrimina- will decision views. (1975) Martin, 289, 299, 336 A. 2d Pa. Commonwealth York, McCray S. New U. quoted (Nix, J., dissenting), certiorari). (1983) (Marshall, J., dissenting from denial 2 n. jury-selection peremptories inject process. tion that into the only by eliminating peremp- goal accomplished That can be entirely. tory challenges
I century ago, A invalidated a state little over a this Court ju- providing not serve as statute that black citizens could Virginia, 100 rors. Strauder v. West ways then turned to more subtle State officials somewhat keeping Alabama, off venires. blacks See Swain *21 (1965) (Goldberg, dissenting); 202, J., Kuhn, 231-238 U. S. Jury 41 Phase, Discrimination: The Next S. Cal. L. Rev. 235 (1968); Dyke, Jury see also J. Van Selection Procedures: Our Representative Uncertain Commitment Panels 155-157 (hereinafter (1977) Dyke). Although Van the means used to changed, pernicious have exclude blacks same conse- quence has continued. jurors peremptory challenge
Misuse of
to exclude black
flagrant.
has become both common and
rarely
Black defendants
showing
compile
the extent
have been able
statistics
practice,
setting
figures
of that
but the few cases
out such
are
Carter, 528
2d
848
844,
instructive. See United States v.
F.
1975) (in
(CA8
15 criminal
in 1974 in the
cases
Western
involving
prosecutors
defendants,
District of Missouri
black
challenged
jurors),
peremptorily
denied,
81% of black
cert.
(1976);
McDaniels,
States v.
379 F.
United
1974)(in
(ED
Supp. La.
53 criminal
in 1972-1974
cases
involving
in
defend
the Eastern District of Louisiana
black
prosecutors
of their
ants, federal
used 68.9%
up
challenges against
jurors,
less than one-
black
who made
venire); McKinney
Supp.
quarter
Walker, 394 F.
v.
(SC 1974)(in
in
1017-1018
13 criminal trials
1970-1971
1015,
County,
involving
Spartansburg
Carolina,
black de
South
challenged
prosecutors peremptorily
fendants,
82% of black
(CA4 1975).2
jurors),
order,
pass upon [a there life, against and no discrimination race, of his shall be no exclusion Delaware, 103 Neal v. of their color.’” them, because (1881), Virginia quoting Rives, 100U. S. 370, 394 dissenting, concedes that ex- Rehnquist, Justice solely they jury, black, are from a because clusion of blacks many “crudely stereotypical upon ... at best based hopelessly Post, at 138. Yet the notions. mistaken” cases *22 taking any prohibits Equal a from ac- State Protection Clause stereotypes an inaccurate racial crude, tion based on —even interests. Exclusion of serve the State’s action that does not jus- jury, solely race, can no more be a because blacks from likely by to con- are less than whites tified a belief that blacks against fairly sympathetically the case a black State’s sider justified by that blacks can the notion defendant than it Observer, 11, 1973, 9, 152, May p. col. 2. Dyke, quoting Texas at Van county instructed circulated in the same jury-selection An treatise earlier Jews, or a Negroes, Dagos, Mexicans member of prosecutors: “Do not take how rich or how well educated.” any minority jury, no matter race on 1986, 29, News, 9, p. Mar. col. 1. Quoted Morning in Dallas Comment, Study Id., Peremptory A of the 1, 1; Case col. see also Process, Equal Protection and Due 18 St. Challenge: A Strike at Subtle Louis U. L. J. 662 integrity,” “intelligence, experience, Neal, or moral the lack supra, with that role. to be entrusted
hHI—I wholeheartedly in the conclusion that use I concur Court’s juries, challenge peremptory from to remove blacks of the Equal Protection violates the Clause. race, the basis of their remedy fashioning go ade- however, I further, would Merely allowing quate that discrimination. to eliminate challenge racially opportunity discrimi- defendants the challenges natory peremptory in individual cases will use of challenge. illegitimate peremptory use of the not end the Evidentiary analysis Court, to that set out similar adopted law in as a matter of state ante, at has been 97-98, including and California. Cases Massachusetts States approach. jurisdictions illustrate the limitations those discriminatory use cannot attack First, defendants challenges challenges are so all unless the prima flagrant means, facie case. This as to establish only jurors survive one or two black that where States, those prosecutor challenges have no com- need cause, jury striking punction because of their them from about Robinson, 189, 195, 382 Mass. race. See Commonwealth (no (1981) prima facie case of dis- 809-810 E. 2d 415 N. prospective jurors black, where defendant crimination prosecutor Rican, Puerto and one three blacks include perempto- the remainder and strikes for cause excludes one People jury); Rousseau, 129 Cal. rily, producing all-white (1982)(no Rptr. App. 892, 897-898 179 Cal. 536-537, 3d only peremptorily prosecutor prima strikes facie case where jury panel). free to dis- are left Prosecutors blacks on two they provided against selection blacks criminate *23 “acceptable” level. an to that discrimination hold prima case, a facie establish can a defendant Second, when assessing prosecutors’ burden of the difficult face courts trial Supp. County 493, King Nassau, 581 F. motives. 1984). (EDNY easily Any prosecutor assert fa- can 501-502 cially striking juror, trial courts are a neutral reasons second-guess How is the court equipped those reasons. ill to juror prosecutor’s that he struck a be- statement to treat a age defendant, juror the same had a son about the cause (1983), or 2d 854 People 3d 672 P. Hall, Cal. see supra, King, or “never at “uncommunicative,” seemed possess sensitiv- the therefore “did and, a smile” cracked realistically necessary and decide at the issues look ities supra, 2d, 672 P. at 856? Hall, case,” the facts explanations easily generated sufficient dis- are If such obligation justify charge prosecutor’s his strikes on protection grounds, the Court erected then nonracial today illusory. may be only by prosecutors outright prevarication dan- isNor (cid:127) attorney may possible
ger “[I]t he to that an here. is even himself that his motives are to convince in an effort himself legal.” prosecutor’s King, supra, A own conscious 502. easily may conclusion him to the lead racism or unconscious juror prospective “distant,” “sullen,” is black to his mind if not have come that would characterization identically. judge’s juror A conscious own had acted white accept may him such an ex- lead racism or unconscious planation supported. As Justice con- as well Rehnquist peremptories prosecutors’ on their “seat-of- are based cedes, particular jurors the-pants will vote. to how instincts” as dissenting opin- Post, at see also 138; The Chief Justice’s “seat-of-the-pants post, often instincts” 123. Yet ion, parties prejudice. just if Even all for racial another term approach of conscious in- with best the Court’s mandate requires confront and them to over- tentions, that mandate challenge I doubt all of all levels—a their own racism on come remembering years “114 meet. It can worth them nearly close of the Between States after War years Strauder, forms of discrimination racial and other after justice inas in the administration of life, a fact of still remain *24 society Mitchell, 443 545, Rose v. U. S. our as a whole.” (1979), Vasquez Hillery, quoted 254, 558-559 (1986).
Ill challenges potential peremptory to distort inherent The jurors by permitting jury process on ra- the exclusion ideally grounds to ban them en- cial should lead the Court Dyke, system. tirely justice See Van from the criminal Saving Jury Imlay, a Demo- Reformation: Federal 167-169; (1973). (LA) Loyola 269-270 L. Rev. Institution, cratic emphasized dissenting Goldberg, Swain, Justice necessary “[w]ere choice between the to make an absolute it conformity right chosen with to have of a defendant requirements the Fourteenth Amendment and the compels right challenge peremptorily, the Constitution I S., 380 U. at 244. believe choice of the former.” just presents I choice, such a and would resolve case entirely by eliminating peremptory challenges in crim- choice cases. inal suggested that the courts should ban authors have
Some zealously entirely, prosecutors’ peremptories should but peremptory guard “essential to the fair- defendant’s by jury,” States, Lewis 146 U. S. trial v. United ness of (1892), important rights “one of the most se- States, Pointer v. United 151 U. S. accused,” cured to the (1894). Dyke, & 167; Brown, McGuire, See Van 396, 408 Challenge Manipulative Peremptory De- as a Winters, Abuse, Traditional Use or New vice in Trials: Criminal (1978). accept- England I not find that an L. Rev. 192 would only justice system “requires criminal able solution. Our any against accused, but also freedom from bias against prejudice prosecution. him and the Between his evenly Hayes Missouri, the scales are to held.” state balance, not maintain that We can engage by permitting prosecutor in ra- both and defendant banning injury by the use of selection, cial discrimination but allowing challenges by prosecutors peremptories as well. eliminate the defendant’s States to impor- regarding spilled the historic ink has been Much *25 approving challenges. peremptory The of defendants’ tance above; noted Lewis and Pointer Courts are comments “very emphasized credentials” of the the old the Court Swain “long challenge, peremptory and cited the S., 212, 380 U. challenge widely peremptory is a neces- held belief that and sary part by jury.” Id., 219. But this Court has of trial peremptory challenge right repeatedly stated that the also may magnitude, alto- and be withheld of constitutional is not guarantee impairing gether im- the constitutional without partial jury States, 335 fair trial. Frazier v. United and (1948); Wood,299 U. S. n. 11 United States v. 497, 505, U. S. (1936); States, v. United Stilson potential (1919); 219. The Swain, S., 380 U. see also challenge prejudice, in the defendant’s inheres further, racial challenge peremptory prosecutor’s could be If as well. the only eliminating the defendant’s at the cost of eliminated great challenge too I do not think that would be well, price pay. racially holding applaud that the discrimina-
I the Court’s Equal challenges tory the violates Protec- use of only join opinion. However, I the Court’s Clause, and tion by entirely banning peremptories can such discrimination be ended. Brennan joins, with whom Justice Stevens,
Justice concurring. correctly dissenting opinion,
In his
Chief
Justice
my
inconsistency
apparent
criticism of
an
between
identifies
Connelly,
“. . . Mr. Chief please whether today the issue before Court simply should be reaffirmed. . . . Swain versus Alabama that it is the Fourteenth Amendment “. . .We believe *26 is the item that should be challenged, presents that dealt an address to the Swain perhaps problem. pri- the use of to strike marily peremptory challenges with individuals who were of a or identifiable cognizable group. than
“Petitioners show no case other the State Cali- case with the use of dealing peremptories fornia’s Amendment cited authority wherein the Sixth was as we the Four- So, believe resolving problem. is indeed the issue. That was the teenth Amendment the basic concern of Swain. guts primarily of Kentucky “In we believe that the trial court closing, have em- Kentucky firmly and the Court Supreme Swain, and we respectfully request braced court as well as Kentucky Court affirm the opinion versus Alabama.”1 to reaffirm Swain reliance on the protection In addition to the party’s equal curiae several amici in judgment, defense of argument 27-28, Arg. 43. Tr. of Oral instance, the argument For that argument. addressed also of the United States General filed the Solicitor in the brief begins: THAT HE NOT ESTABLISH DID
«PETITIONER A PROPERLY CONSTITUTED OF DEPRIVED WAS PROTECTION EQUAL DENIED PETIT JURY OR THE LAWS OF Alabama A Defendant Cannot Swain
“A. Under Show- By An Protection Violation Equal Establish To Subjected Were Black Veniremen Only That ing In The Prosecution His Challenge By Peremptory Case”2 this issue.3 amici similarly emphasized other
Several I it is possible circumstances, although suppose these in a better us to have some of enable might reargument in the percolating that has been a problem view of formed wisely acts the Court believe years,4 I for several courts as Amicus Curiae 7. States Brief for United Attorneys District brief for the National argument section of the begins respondent curiae support as amicus Association, Inc., follows: peremptory challenges prosecutorial that the Court should conclude “This equal amendment proper under the fourteenth case were in this
exercised
de-
should further
This
the sixth amendment.
Court
protection clause and
modify
change or otherwise
need to
no constitutional
that there is
termine
Id., at 5.
v. Alabama.”
decision Swain
this Court’s
equal
importance of the
emphasized the
petitioner also
Amici
supporting
*27
Educa-
g.,
Defense and
e.
See,
Legal
Brief for NAACP
protection issue.
Congress
Committee, and American Jewish
Fund,
Jewish
American
tional
Rights
for
24-36;
Lawyers’ Committee
Civil
for
as Amici Curiae
Brief
as Ami-
11-17;
Holtzman
Amicus Curiae
Brief for Elizabeth
Law as
Under
cus Curiae
13.
4
(1983)
Stevens,
York,
(opinion of
McCray v. New
resolving arguments have been without invita already fully presented any special tion from this Court.5 O’Connor,
Justice
concurring.
I concur in the Court’s
and
but also
judgment,
opinion
of The Chief
Justice
and Justice
with
views
agree
decision does not
today’s
retroactively.
White
apply
(CA2
McCray Abrams,
1984),
ripe for review.
We guaranteeing provisions constitutional “in tried violation jury composed impartial jury and a an the defendant community.” representing of the persons cross section a fair i. Pet. for Cert.
I challenge, Today aside the Court sets many part for common law procedure has which been nearly years. jury system part our for centuries and argument that was of a constitutional on the basis It so does single Alabama, rejected, dissent, Swain without (1965). principles would of such settled Reversal U. S. years ago only enough three for terms, own on its be unusual entirely perhaps never while decisis, “stare we said persuasive question, a doctrine that is a constitutional on society governed respect rule of law.” in a demands Reproductive Inc., Health, Akron Center Akron for holding truly today’s makes ex- What 416, 420 argument traordinary on a constitutional is that it based expressly petitioner raise, declined to both has that the Kentucky. Supreme Court of in the this Court petitioner Kentucky Supreme disclaimed Court, In the Equal any specifically Protection Clause on the reliance only pressing a claim instead Amendment, Fourteenth Appellant 14 Brief Sixth Amendment. based (Ky.). Reply Appellant 1in No. 84-SC-733-MR Brief for argument explained “We have not petitioner here: at oral As protection equal have not made claim. ... We made an argument filed either specific been in the briefs have saying Kentucky Supreme this Court or in Court Arg. attacking 6-7. Tr. of Oral as such.” Swain are we prevented raising suggested barrier Petitioner has Kentucky protection courts. equal in the such claim an argument equal protection is im- an circumstances, review of *29 “ proper consistently in this Court: ‘The Court has refused to decide federal constitutional issues raised here for the first time on review state court decisions . . . .’” Illinois v. (1982) Gates, 1028, 1029, n. dis- (Stevens, J., senting) (quoting Louisiana, Cardinale v.
(1969)).
Neither the Court nor Justice
offers
Stevens
justification
departing
principle,
from this time-honored
Owings
which dates to
v. Norwood’s
Lessee, Cranch
(1809),
Randell,
and Crowell v.
“QUESTION: Niehaus, Swain was challenge, tection it not? was Yes.
“MR. NIEHAUS: solely on the Your claim here is based “QUESTION: Amendment? Sixth Yes.
“MR. NIEHAUS: Is correct?
“QUESTION: arguing, yes. That is what we are NIEHAUS: “MR. asking for a reconsidera- You are not “QUESTION: making equal protection you are no Swain, tion of here. Is that correct? claim equal protec- not made an We have
“MR. NIEHAUS: to be I think that will have reconsid- tion Swain claim. arguments only if to consider ered to a certain extent respondent made on behalf affirmance that are general. and the solicitor *30 specific argu- not made a NIEHAUS: We have
“MR. filed either in the that have been ment in the briefs Kentucky saying Supreme in this Court Court Arg. attacking ...” Tr. of Oral such. we are Swain 5-7. discussing the difficulties atten- later, after
A short time following colloquy claim, with a Sixth Amendment dant occurred: my again question I
“QUESTION: So come back why you on, I take if the Swain head but it didn’t attack you like that Swain, wouldn’t Court were overrule result. Simply overrule Swain without
“MR. NIEHAUS: remedy? adopting Yes.
“QUESTION: give I us do not think that would “MR. NIEHAUS: comfort, much no. Honor, Your Id., 10.
“QUESTION: That is concession.” petitioner’s Later, counsel refused answer Court’s holding concerning implications questions of a based on protection equal concerns: [TJhere in- is
“MR. . . . no state action NIEHAUS: exercising the defendant is his volved where challenge.
“QUESTION: But there might be under an equal pro- tection if it challenge is the state system that allows kind of a strike.
“MR. I NIEHAUS: believe that is I am possible. really prepared answer specific ques- Id., tion. ...” at 20. reaching equal protection issue despite petitioner’s
clear refusal
to present
it, the Court departs dramatically
from its normal procedure without any explanation. When
we granted certiorari, we could have —as we sometimes
do—directed the
to brief
parties
the equal protection ques
tion
addition to the Sixth Amendment question.
See,
e.
Paris Adult Theatre I
g.,
Slaton,
1In Connelly, Colorado v. Brennan, joined Justice by Justice Ste vens, filed a objecting memorandum briefing to this of an additional question, explaining hardly that “it is for this Court to ‘second chair’ the prosecutor strategy guard to alter his or him from mistakes. Under this 21.1(a), ‘[o]nly Court’s Rule questions petition the set forth in the fairly by included therein will be petitioner’s considered the Court.’ Given ex press presented, disclaimer that issue question [this] is obviously is ‘fairly question included’ the submitted. The Court’s direction that parties the anyway meaningless address it makes this provi case the concern, sions of this plainly Rule and is cause for particularly since it is clear that dispensation a similar granted would not be defendant, criminal strong S., however his claim.” 474 If U. 1052. the step Court’s limited directing briefing point on an additional at the time certiorari was granted concern,” was “cause for I would think a that the far more fortiori expansive today action the Court takes would warrant similar concern. 2 Stevens, joined by Justice Justice Brennan and Justice Mar shall, dissented from directing reargument Jersey order in New They explained: T. L. O. single question presented
“The to the Court has now been briefed and argued. Evidently unwilling unable or question presented to decide the 116 prior See, under decision is consideration.
examination of Metropolitan g., Transit Author San Antonio e. Garcia v. (1984) reargument briefing (directing ity, and U. S. Usery, League Cities v. National on issue of whether (1976), reconsidered); Dunhill be should U. S. Alfred (1975) Republic Cuba, London, Inc. v. U. S. of (directing briefing reargument on issue of whether the holding Sabbatino, 376 de in Banco Nacional Cuba reconsidered). Alternatively, (1964), we could should granted. petition improvidently simply this as have dismissed today rejects accepted action, The these courses Court choosing 21-year-old unanimous constitu- instead reverse holding of on the basis of constitutional tional this Court only expressly by petitioner. arguments disclaimed explanation is in Justice con- for action found Stevens’ apparently that this currence. believes Justice Stevens party properly “the de- is before the Court because issue fending explicitly judgment the issue has rested on question controlling Ante, basis affirmance.” at 109. as a for S., J., 459 U. n. Gates, Cf. Illinois v. (Stevens, (“[T]here impediment presenting dissenting) is no a new affirming argument as an alternative basis decision below”) original). respondent (emphasis in To be sure, Equal supporting amici did cite Swain and Protection arguments largely their limited to ex- Clause. But were Court, dismissing the parties, instead of writ certiorari reargument improvidently questions directed granted, orders to the bring Volunteering here. [petitioner] not to . . . unwanted advice decided rarely of action. a wise course effectively “I when we adversary process that the functions believe most *32 rely lawyers, judges, on the initiative rather than activism S., questions at 1215-1216. fashion the review.” U. ante, proffered notwithstanding, see Justice Stevens’ explanation (concurring opinion), I how one am at loss to discern can con- Court sistently question these views and still reaches hold reach today.
plaining placed negative gloss that Swain on the Sixth actually by petitioner. any Amendment claim raised strange jurisprudence argu- event, it is a that looks to the by respondent ments made to determine the breadth of the questions presented by petitioner. for our review Of course, directly 21.1(a), such a is view at odds with our Rule which provides “[o]nly questions petition set forth in the fairly included therein will be considered the Court.” I cite, Stevens does not and am not of, aware Justice nearly 200-year history case in this Court’s where the alter- grounds urged by respondent judgment native to affirm a upon permit petitioner were then seized to obtain relief very judgment despite petitioner’s urge from that failure to ground. also observes that several amici curiae Justice Stevens equal protection argument. address the Ante, 109-110, thought “point and n. 3. But I that, it well settled even if a made in an amicus curiae if brief,” the claim “has never been by petitioners pass upon advanced ... we have no reason to it.” Knetsch v. States, United objections peremptory challenges brought
When were years ago, agreed this Court three with Justice Stevens challenge significant that the involved “a Justice Marshall recurring question McCray of constitutional law.” (1983) York, New 461 J., dissent (Marshall, ing certiorari), approval, from denial of id., referred to with certiorari). (opinion respecting J., at 961 denial of Stevens, Nonetheless, Justice Stevens wrote that the issue could be wisely dealt with “more at a later date.” Id., 962. The today. conditions exist here same con Justice Stevens reargument “might cedes that of this case enable some us problem to have a better informed view of a that has been percolating years.” Ante, the courts for several at 110. position Thus, at bottom his is that we should overrule an ex tremely important prior constitutional decision of this Court though briefing on a claim not advanced even and oral here, *33 118 claim convince us to do otherwise.3 might on this
argument in this manner are unlikely made I believe that “[decisions Leon, 468 time.” United States v. the test of to withstand (1984) Before con J., dissenting). 962 897, U. S. (Stevens, I reargument would at least direct such a templating holding, of equal protection the issue whether the briefing and on be reconsidered. Swain should holding
II to decide this case Court nonetheless chooses Because the it be use- presented, may equal protection grounds on the acknowledges, ful discuss this issue as well. Court to of old credentials’” the footnote, “‘very in a the albeit the held belief that challenge “‘widely and peremptory part by of trial challenge necessary jury.’” 219). Swain, 380 But 91, S., 15 U. at Ante, (quoting n. nodding case more than a requires resolution this proper it was challenge. Long ago reference the purpose 3 distinguishes the fact alone cases cited Justice Stevens This 5, ante, unprecedented n. 111, today’s action. See support as (1986) (Bur Dist., Williamsport Bender Area School U. S. (1984) (White, Nunez, dissenting), Colorado v. U. S. ger, J., C. (1983) Casal, J., concurring), (Burger, and Florida v. 462 U. S. primary concurring), the discussed were all the issues ad J., issues C. briefed, petitioners vanced, argued by the in this Court or related di sure, rectly deciding basis for the case. To be some Court’s separate might parsimoniously viewed as these statements discussion Ante, “[un]necessary disposition petition.” of the case approach, many opinions dissenting under this and dissents n. But 5. would have to be condemned as well. More from the denial of certiorari important, separate suggested these it even none of statements was proper judgment had it would be to overturn state-court issues that Court, argued by petitioner in Court not been briefed and does today. Finally, Connelly, 474 and New (1986), in Colorado v. O., briefing argu Jersey T. L. 468 U. we directed (1984), S. procedure particular questions deciding Such a ment on before them. ensuring that the which the Court wishes serves the desirable end issues My fully suggestion argued. will be briefed and Court consider reargument hear of this case serves the same end.
recognized right challenge “[t]he is almost essential *34 purpose securing perfect impartiality for the fairness and (1852). Forsyth, History by Jury in a trial.” W. of Trial 175 peremptory challenge scrutiny The in has been use without nearly long juries into its basis for as as have existed. “It amongst inwas use the in cases, Romans criminal and the (B.C. 104) Lex Servilia enacted that the accuser and the ac severally propose judices, cused should one hundred and that might reject fifty each other, the list of the so that one try alleged hundred would remain Ibid.; the crime.” see Pettingal, Enquiry also J. An into the Use and Practice of (1769). Among Juries the and Greeks Romans development In Swain Justice White traced the of the peremptory challenge early days from the of the trial in England:
“In all trials for law, felonies at common the defendant challenge peremptorily jurors, was allowed to and the prosecutor originally right challenge any had a num- jurors right ber of without cause, a which was said to delayes danger.’ tend to ‘infinite Coke on Littleton (14th 1791). Inquests, ed. Thus The Ordinance for (1305),provided ‘they 33 Edw. Stat. if that sue King challenge any they for the will . . . Jurors, shall as- sign persistent ... a Cause certain.’ So the was view proper jury required peremptories that a trial on both sides, however, that the statute was construed to allow prosecution any juror to direct after examination to panel gone aside’ ‘stand until the entire and the was over challenges; only defendant had if exercised his there was deficiency jurors point in the box at did the respect jurors Crown have to show cause in recalled to up required Peremptories make number. on both England, continuing sides the settled became law in separation the above form until after the of the Colo- (footnotes omitted). S., nies.” 380 U. at 212-213 challenges Peremptory in tradition this have a venerable country as well: part system, Congress early took a
“In the federal establishing subject was in that the defendant in hand peremptories 20 in for treason and trials entitled to pun- specified in 1790Act trials for other felonies regard to trials death, ishable Stat. statute, the 1790 both for other offenses without thought were to have defendant Government challenge, although right the source of wholly right . clear. . . was apparently paralleled “The course States challenge system. right the federal defendant’s *35 early by statute, number often cor- was conferred the prosecution responding English practice, the was to the right thought common-law to have retained the Crown’s by all, if had aside, most not States to stand conferring prosecution on a sub- the enacted statutes challenges, peremptory number of the number stantial equal generally being to, but the num- half, least often (footnotes Id., 214-216 the defendant.” ber had omitted). teachings opinion, ignoring in the
The Court’s addition history, in Swain its failure to even also contrasts with challenge. peremptory the rationale Swain discuss observed: challenge only not is eliminate
“The function partiality sides, both but to extremes of assure jurors they try parties whom case that the before placed them, the evidence decide on the basis of for will way peremptory In this satisfies and not otherwise. high perform its in ‘to function the best the rule that way, ’” satisfy justice.” appearance “justice must (quoting Id., (1955)). Murchison, In re at 219 Permitting unexplained peremptories long regarded has been strengthen jury system ways aas means to our in other as recognized: well. One commentator has peremptory, giving any “The made without reason, trafficking in avoids the core truth in most common stereotypes. experience, . . . Common human common psychosociological public opinion sense, studies, and polls likely people it tell us that is that certain classes of statistically predispositions have that would make them inappropriate jurors particular for kinds But of cases. knowledge expressed to allow this to be in the evaluative necessary challenges for terms for cause would undercut society people judged our desire for a in which all are open each individuals and which is held reasonable and compromise. [For example,] [although experi- . . . ence reveals that black males aas class can be biased against young join alienated blacks who have tried not middle class, the pression required to enunciate the concrete ex- challenge societally
of a is cause divisive. Instead we have evolved challenge system expression that allows the covert say what we dare but know true more often than Preserving Babcock, not.” Yoir Dire: “Its Wonderful Power,” 27 L. Stan. Rev. 553-554 *36 For such in these, reasons as this Court concluded Swain [peremptory] challenge impor that “the is of ‘one the most ” rights’ justice system. Swain, of in our tant the S., U. (quoting States, Pointer v. United (1894)). century, For close a it that then, has been settled impairment right “[t]he or of denial the is error reversible (cit prejudice.” showing supra, Swain, without a at 219 (1892)). ing States, Lewis v. United 146 U. S. considering history
Instead of even the function or challenge, opinion peremptory the bulk the is Court’s recounting spent principle inten- well-established groups jury racial venires is a exclusion of from tional Equal I too reaffirm that Protection Clause. of the violation part principle, tradi- of our constitutional has been which Virginia, U. S. Strauder v. West tion since at least nothing today’s is more than mere if decision But “principles “application” Strauder,” in announced cu- ante, will consider it maintains, 89-90, some the Court unrecognized application cen- for over a went rious that the unanimously difficulty tury. in in had no The Court Swain require concluding in- as Strauder did not that cases such challenge. post, peremptory quiry for a into the basis recently dissenting). More we J., 135-137 (Rehnquist, any par- “[defendants to a are not entitled held that Taylor composition Louisiana, 419 S.,U. . . . .” ticular at 538. quickly reveals the vast differences
A moment’s reflection in Strauder and the the racial exclusions involved between today: allegations before us process implies from the venire summons
“Exclusion (usually legislative judicial government that the branch) general . . has made the determination that . any try case. Exercise of excluded are unfit those by challenge, represents peremptory contrast, opposed decision, made one of two or more discrete system phase adversary litigants of our the trial venireperson likely challenged justice, will litigant particular case more unfavorable to that than others on the same venire. excluding particular cognizablegroup all
“Thus, discriminatory pools stigmatizing several venire challenge ways peremptory interrelated that the is not. singles group, out while indi- The former the excluded equally subject groups viduals of all are including group challenge basis, their affiliation. bespeaks venire-pool priori exclusion across- Further, peremptory-strike exclu- unfitness, total while the-board suggests potential partiality particular merely in a sion *37 in- isolated case. Exclusion from venires focuses on the group herent of the excluded and infers its attributes inferiority, peremptory suggest but the does not. To particular judge any in that a race is unfit to case neces- sarily racially insulting. suggest is To that each race may special may concerns, have its own or even tend to Leslie, own, favor its is not.” United States v. 783F. 2d 1986)(en banc). (CA5 541, 554
Unwilling solely to rest venire cases such as general equal protection Strauder, the Court also invokes principles support holding. But chal of its “normally lenges lodged, necessity, are often for reasons thought legal proceedings or official action, irrelevant religion, nationality, occupation namely, or affili race, jury duty.” supra, people Swain, for ations of summoned making peremptory challenges, Moreover, in both the 220. attorney necessarily only prosecutor lim and defense act on process ited information or hunch. The cannot be indicted on the sole that such decisions are made on the basis of basis “assumption” judgment.” Ante, or “intuitive at 97. As equal protection analysis simply in unadulterated is result, applicable peremptory challenges particu exercised “rationality” requires A lar case. clause that a minimum “ government application arbitrary actions has no to ‘an capricious right,’” supra, (quoting Swain, Lewis 378); supra, principle States, a constitutional United “stereotypic action on invalidate state the basis University Hogan, Mississippi Women v. notions,” (1982), explain proce does not of a 718, 725 breadth impressions the “‘sudden and unaccount dure exercised on apt upon prejudices looks are to conceive the bare able we gestures supra, (quoting Lewis, of another.’” at 376 *353). Blackstone, W. Commentaries protec- applying equal
That conventional the Court is analysis rule to alle- tion its limitation of its new shown gations impermissible challenge race; basis on the *38 124 clearly opinion ante, a limitation. See contains such
Court’s
(to
prima
case, “the defendant first
a
facie
at 96
establish
cognizable
group”)
a
racial
that he is member of
must show
added);
(“[Finally,
(emphasis
must
ibid.
the defendant
show
any
raise
other relevant circumstances
that these facts and
prosecutor
practice to
used that
exclude
an inference that
race”)
petit
their
on account
from the
veniremen
added).
protection prin-
(emphasis
equal
ifBut conventional
object
ciples
presumably
apply,
to ex-
could
then
defendants
Craig
only
also
race,
sex,
but
clusions on the basis of
(1976); age,
Bd.
Boren, 429
Massachusetts
v.
U. S. 190
Murgia,
(1976); religious
427
307
or
Retirement v.
U. S.
political
Daggett,
v.
748
affiliation, Karcher
(1983)
concurring);
capacity,
J.,
mental
Cleburne
(Stevens,
(1985);
Living Center, Inc., 473 U.
432
num-
v. Cleburne
S.
(1970);
Dandridge Williams,
U. S. 483 quite every probable short, it chal objected lenge that, to on the basis it ex could be because a venireman who had some characteristic not shared cluded remaining it venire, members constituted a equal subject protection scrutiny. “classification” (CA2 1984) McCray Abrams, F. 2d (Meskill, pending, dissenting), J., cert. No. 84-1426. Com pounding equal protection under conventional difficulties, principles peremptories some uses of be reviewed would scrutiny only suitably “strict . . . if. . . under sustained compelling Cleburne, tailored to serve a state interest,” might under support While all these distinctions claim conventional equal protection principles, a also have to establish stand defendant would See Alexander v. Louisi obtaining ing them before relief. to raise ana, S. 405 U. S.,U. they 440; others would be reviewed to if determine “substantially sufficiently were important gov- related to a ernment interest,” id,., 441; still others would be re- they viewed to determine whether were “a rational means to legitimate serve a end.” Id. at 442. applies equal protection Court never this conventional perhaps
framework to the claims at hand, to avoid acknowl- *39 edging that the historically state interest involved here has regarded by-this been compelling. Court as if substantial, not Peremptory challenges long have been viewed as a means to impartial jury achieve an sympathetic that will be toward neither an accused nor witnesses for the State on the basis religion, of occupation, some shared factor of race, or other Nearly century ago characteristic. the Court stated that peremptory challenge is “essential to the fairness of trial by jury.” Lewis States, v. United S.,U. at 376. Under equal protection principles, conventional a state interest of magnitude lineage might and ancient well overcome an equal protection objection application peremptory to the of challenges. strength However, the Court is silent on the apparently leaving the State’s among interest, this issue, many “litigation [that] required others, to the further will be spell equal protection out the contours of the Court’s hold- ing today concurring).5 Ante, . . . .” at 102 (White, J., purports express
The Court also “no views on whether imposes any peremp- Constitution limit on the exercise of tory challenges by (em- Ante, counsel.” at 89, n. defense added). phasis inescapable import But the clear and of this holding inevitably novel will be to limit the use of this valu- 5The Court is also silent on whether a State demonstrate that its peremptories “assumptions,” ante, merely use of rests not 97, at but on sociological studies or other similar Saltzburg Powers, foundations. & Peremptory Challenges Impartiality the Clash Between Group Representation, 337, Md. L. Rev. and n. 124 For “[i]f the juror’s prejudices assessment of a group accurate, based on affiliation is . . . then challenge counsel has exercised the as it was intended —to re Id., partial jurors.” move the most at 365. attorneys prosecutors alike. and defense tool to both
able prosecutors limited in their has are held Once Court rationally challenges, we hold could use justice system ‘requires criminal are not?6 “Our defendants any against only accused, from bias but also freedom against prosecution. prejudice him his Between ” evenly Ante, are to be held.’ and the state scales Hayes concurring) (quoting Missouri, 120 J., (Marshall, (1887)). S. U. protection straightforward equal applying Rather than holding analysis, in Swain a cu the Court substitutes for “prima hybrid. first establish rious defendant must ante, 98-94, then case,” discrimination, facie invidious with a neu shifts the State to come forward the “burden challenging jurors.” explanation Ante, at 97. tral black operation prima explains facie The Court that “the burden concerning proof “[o]ur decisions rules” established ‘disparate Ante, . . . .” n. 18. The Court treatment’ *40 borrowing again case, from a Title VII that “the adds, then prosecutor give reasonably specific’ ‘clear ex
must a and ‘legitimate exercising planation his reasons’ for the chal (quoting Dept. lenges.” Ante, 98, at n. 20 Texas Commu (1981)).7 nity Burdine, 450 U. 248, v. S. 258 Affairs undoubtedly these rules are well suited to other con- While (as VII) particularly they Title re- texts, where with are by Congress,8 they curiously quired an Act of seem out 6“[E]very spoken matter, prohibited jurisdiction has to the and which prosecution ease-specific peremptory challenges cognizable basis of the prohibited.” affiliation, held must so group has defense likewise be Leslie, banc). (CA5 1986) (en States United 783 F. 2d 565 potential Swain has overturning for “[t]he One court has warned that stretching already long, by making that are too out criminal trials the voir Clark, miniature.” United States proceeding dire a Title 737 F. VII 1984). (CA7 “potential” clearly That is about to be realized. 2d observing Congress It is worth has been unable locate the system peremptory challenge deficiencies in the constitutional today. explains urging re- Court discerns As Solicitor General place applied peremptory challenges when in criminal system permits types challenges: cases. Our two chal- lenges peremptory challenges. Challenges for cause for obviously explained; peremp- cause to be have definition, tory challenges challenge, do “It not. is called a prisoner may challenge peremptorily, because the on his own ” showing any Joy, Peremp- dislike, without cause. H. On (1844) added). tory Challenge (emphasis Analyti- ofJurors cally, ground: challenge there no middle A either has to be explained readily apparent, itor does not. It is then, that to permit inquiry peremptory challenge into the for basis peremptory challenge collapse [to] would force “the into challenge for cause.” United States Clark, F. 2d (CA7 1984). recognized Indeed, the Court without dis- scrutiny permitted, “[t]he that, sent Swain if were chal- lenge, pro longer peremptory, tanto, would no each and every challenge being open to examination, at either the time challenge hearing aat Swain, afterwards.” S., 222. U. today with
Confronted the dilemma it created, the Court attempts ground. prima to decree a middle To rebut a facie requires explanation” case, the Court a “neutral for the chal- lenge, pains “emphasize” “explanation but is at that justifying challenge need not rise to the level exercise of a governing Ante, I cause.” am a 97. loss to discern the principles reasonably specific” explana- here. A “clear and “legitimate exercising challenge tion of reasons” for will distinguish challenge Any- be difficult for cause. jection presented by of the Sixth Amendment issue an petition *41 below, reconciling affirmance of the decision peremp- “[i]n the traditional tory system challenge requirements with the of the Sixth it is Amendment by Jury instructive to consider the accommodation Congress made in the 1968, seq. C. 1861 et . . [T]he Selection and Act . Service House . Report makes clear that. . ‘the bill right leaves undisturbed the of a liti- gant peremptory challenges to exercise his jurors purely to eliminate for ” subjective United States Amicus Brief for Curiae 20, reasons.’ n. (1968)). (quoting Rep. Cong., Sess., H. R. No. 90th 2d 5-6 challenge thing as an well be seen a for cause short of challenge, “arbitrary capricious” Blackstone’s use peremptory. Blackstone, 4See W. characterization per- Apparently envisions the Court *353. Commentaries just challenge challenges for that are cause short a missible arbitrary too much. While our trial a little bit —but in supervising “experienced ante, judges dire,” voir are administering experience they rules like this. have no today’s holding, quickly example how An will demonstrate justice,” purporting ante, at 99, to “further the ends while on defendant, an Asian Assume will not have that effect. prospec capital victim, a white asks for murder of trial they jury whether white, most of whom are members, tive against prejudice Turner v. Mur Asians. See racial harbor question ray, flush ante, The is to at 36-37. basis such violence-prone [Asians] “juror that are out who believes morally Ante, . .” at 35.9 Assume further inferior . . deny jurors harboring prejudice racial but that white that all by life, for his remains unconvinced defendant, trial protestations. to harbor a Instead, he continues these judgment,” “assumption,” ante, an or “intuitive hunch, pre jurors prejudiced against him, will that these white be part sumably rule be on race. time-honored based challenges today could exercised was fore explained in Lewis The Court v. United on such basis. States: (when prisoner necessary put
“[H]ow to de- it life) good opinion jury, of his fend should have his totally might disconcert him; law wills want which by any against one man whom he should be tried not that cases, Turner question, required capital certain demon This protection analysis equal to a inapplicability of traditional strates jury. Surely question rests on voir dire seeking impartial an equal stereotypic notions would be condemned on generalized, racial protection grounds in contexts. other *42 prejudice being
he has conceived a even without able to assign S., a reason for such his dislike.” 146 U. at 376. to force decision, however, The effect of the Court’s will be to come and neutral ex- the defendant forward “articulate a planation,” peremptory challenge, ante, for his a bur- probably example den he cannot meet. This demonstrates today’s holding produce juries parties will that the do truly impartial. surely not believe are This will do more litigants; in than “disconcert” it will diminish confidence jury system. painful paradox holding
A further of the Court’s is that it is likely interject racial matters back into the selection contrary process, general long to the thrust of a line of Court country “melting pot.” and the notion a decisions of our Avery Georgia, (1953), 345 U. instance, S. for confronted a situation where the selection of the venire Court through the selection of from a box; was done tickets printed were on tickets of one color and names of whites printed on different color tickets. the names blacks were difficulty striking had no a scheme. The Court down such “opportunity working Frankfurter observed that for Justice discriminatory system a exists whenever the mechanism component part, slips jury selection has a such as the between white colored . . . .” here, differentiates added). (concurring) (emphasis Id., at 564 Today mark the return of racial differentiation as the we perceived accepts positive one.
Court evil for Prosecu attorneys support and defense alike will build records tors peremptory challenges their claims that have been exer racially discriminatory by asking jurors fashion cised background origin for the state their racial national questions despite fact that “such offensive record, jurors ordinarily and thus are not on voir to some asked People P. 2d Motton, 3d dire.” Cal. *43 (advance sheet).10 (1985) 3d 40 Cal. 4b 176, 180, modified, even most counsel and capable is sure to tax This process has whether a facie case determining prima since judges continued and “require monitoring established will a been the panel composition present recording ‘group’ Wheeler, .” 22 Cal. 3d . . . prospective People and (1978) (Richardson, J., 583 P. 2d 258, 294, dissenting). created, on this has been dis-
Even after “record” issue case, for a con- instance, will arise. one inevitably putes based on the that no blacks assumption viction was reversed convicted a People on the that defendant. jury were after an- Motton, However, the court’s decision was supra. served Pritchett, jury, who had on the nounced, Carolyn was and that press called the to state the court error 1985). (Nov. A. B. A. J. 22 The Califor- she was black. 71 a rehearing court nonetheless denied petition.11 nia difficult, tarry any The Court does not over these long gloss instead to over them as problems, preferring sensitive history: as it slides over centuries of make swiftly “[W]e to courts how best to attempt implement [trial] no instruct attempted problem has Supreme 10 The Court to finesse this California asserting appearances than that “discrimination more often based descent, showing prosecution systemati racial that the was verified excusing persons appear prima to cally who be Black would establish a Motton, 3d, People case” of at facie racial discrimination. Cal. 2d, suggests, however, proper inquiry 704 P. at 180. This here jurors excluded, are but rather concerns not actual race who subjective they spring impressions as what race from. It is counsel’s just impressions how a of such is to be made. unclear “record” in this difficulties lurk ease on remand. The Court states Similar Ante, only composed persons “a of white was selected.” as fact that statement, only prosecutor’s finding The for the Court’s is the at 83. basis them, counsel, response question looking “[i]n to a from defense yes; jury.” App. 3. it’s an all-white today also that the does not hold that
It should be underscored Court entitling him petitioner “prima has case” form of established facie Ante, relief. at 100. holding today.” Ante, 99-100, our n. 24. That leaves general roughly jurisdiction judges ap- 7,000 state trial proximately judges large way trial their federal to find through today. the morass the Court Court creates es- sentially they judges begin wishes these well as the difficult enterprise sorting implications newly out the of the Court’s ” “right. my j colleagues wishing I created oin the Nation’s judges they struggle grasp implement well how to to- day’s holding. my mind, however, To “im- attention to these plementation” questions quickly leads to the conclusion that “good” way implement holding, no there is let alone a way. apparently judge explained “best” As one *44 frustrated reviewing promulgated by after a case under a rule like that today, judicial inquiry peremptory challenges into Court quagmire case to will take the “from case courts into the quotas groups that of are difficult to and define even quantify pursuit in difficultto The more the courtroom. judicial perfection require appellate of will both trial and provide impractical speculative courts to and answers to questions.” Holley Sweeping artificial & S Co., v. J (1983) App. Rptr. 3d Cal. 588, 595-596, 74, Cal. (Holmdahl, (footnote omitted). concurring) J., justice,” “furthe[r] ante, effort Court’s the ends hoped-for utopian 99, admired, and achieve bliss but likely enlarge “sporting it more the- is far evil contest” roundly ory justice by of criminal condemned Roscoe Pound years day. ago Popu- Pound, almost 80 to the Causes August Justice, lar Administration of Dissatisfaction with reprinted Perspectives in The Pound Conference: (A. in Justice the Future 337 Levin & R. Wheeler eds. 1979). then Pound warned that “too much of the current just origin judicial organization dissatisfaction has a our procedure.” today’s newly I Id., at 352. am afraid that right give justly created similar constitutional will rise disapproval.
m my conclusion that assent to Justice White’s I also add retroactively. today’s apply Ante, decision does not (concurring); concur- ante, J., also see (O’Connor, ring). Stumes, 465 U. S. We held Solem (1984), that
“ [retroactivity] guiding ‘[t]he resolution of the criteria (a) by purpose question implicate to be served (b) the reliance law en- the extent of standards, new (c) the standards, on the old forcement authorities justice of a retroactive effect on the administration application Denno, of the new standards.’ Stovall (1967).” 293, 297 making ignore If Harlan’s admonition we are to Justice changes only prospective “cuts this Court loose constitutional precedent,” Mackey States, 401 from the force of v. United (1971)(concurring judgment), then all three 667, 680 conclusively point to a these factors nonretroactive hold- respect ing. factor, to the first the new rule the Court With today designed danger is not to avert “the clear announces convicting the innocent.” Tehan v. United States ex rel. *45 (1966). readily appar- Shott, Second, it is 406, 382 U. S. authorities and state courts have ent that “law enforcement justifiably prior Solem, relied on a rule of law . . . .” clearly Today’s holding “overrule^] [a] at 645-646. S., U. drastically prac- “transform[s] prior standard decision” “virtually eompel[s]” Id., tice.” at 647. This fact alone nonretroactivity. Johnson, United States v. conclusion applying today’s 537, Third, 549-550 deci- obviously retroactively would lead to a host of sion whole Determining problems, if utter chaos. whether a de- “prima showing” intent, fendant has made a facie of invidious ante, if the state a sufficient “neu- 97, and, so, at whether has essentially requires explanation” ibid., re- actions, for tral its something ex- constructing dire, that will be voir the entire tremely after the close of if undertaken soon difficulteven application of therefore, retroactive cases, In most trial.12 today’s impossibility.” v. State “a virtual decision will be 1984). (Fla. 2d Neil, 481, 457 So. holdings impossible prior to con it is under our sum, application. argument for retroactive even a colorable
struct adopted judicially created rules that have The few States today by have all refused the Court to that announced similar People application. Wheeler, 22 Cal. full retroactive Neil, n. State v. 2d, 766, 31; 583 P. 283, 31, n. 3d, 493, supra, Soares, 377 Mass. 488; Commonwealth denied, cert. 499, 518, 2d n. n. 387 N. E. (1979).13 by persuaded I am therefore White’s Justice today’s (concurring),
position, novel decision ante, at 102 given effect. retroactive is not to be
IV challenge part that is An like the institution casually system jury cast not be should of our of the fabric argued by especially raised or on a basis not aside, aptly petitioner. observed: As one commentator system, question tinker with a “The real is whether anything has done the else, be it of selection job of our an- on the shoulders We stand for centuries. past much that the It is not so as Burke said. cestors, argued, preserving, always rather that he but worth ought any to ven- man infinite caution ‘it is with upon pulling answered which has edifice, an ture down purposes ages degree common tolerable impossible for the virtually it would be concedes that 12 Petitioner peremptory challenges why he used his to recall prosecutor in this case 35. Brief for Petitioner the fashion he did. a rule like that might it follow suggested that 13 Although Delaware has State, (1985), Riley A. 2d 997 today, see adopted the Court *46 appear have been application the rule does of
issue of retroactive published decision. litigated Peremptory Younger, society. Chal- Unlawful . .’” .
of 1980). (Fall Litigation lenges, reversing important very centuries of case least, At the history reargument ought experience next to be set Term. The Chief Justice Rehnquist, with whom
Justice dissenting. joins, opinion, opening line of its in the states,
The Court portion only of of that reexamination this case involves (1965), concerning “the Alabama, 380 U. S. Swain evidentiary placed who claims a criminal defendant burden through protection equal the State’s denied he been has peremptory challenges of his race to exclude members use of omitted). (footnote jury.” petit But Ante, at 82 from the reality majority opinion than deals with much more “evidentiary burden[s].” less little discussion and With analysis, the fundamental also overrules one of the Court holdings namely, that the State Swain, substantive jury, challenges peremptory from the on a to remove use its prospective jurors case-specific of the same race as the basis, rejection I of this hold- find the Court’s defendant. Because unjustifiable ing under established ill considered and both equal protection, principles I dissent. distinguished carefully possible two Swain,
In this Court involving peremptory use of its chal- the State’s scenarios juries lenges in criminal cases. blacks from to exclude majority opinion, the Swain Court concluded III Part namely, the exclusion of scenarios, that the first of these wholly of the unrelated the outcome “for reasons blacks particular deny Negro right the same case on trial... justice opportunity participate in the adminstration might by population,” enjoyed S., 380 U. the white guarantees equal protection. id., violate the important pur- felt and historic 222-228. The Court challenge poses were not furthered *47 “in exclusion of blacks case after the circum case, whatever whatever the crime and whoever the or stances, defendant added).. may (emphasis the victim be.” at 223 Id., Never ultimately the Court held theless, that “the record th[is] case is not sufficient to demonstrate that rule has been proof violated .... Petitioner has the burden of and he carry has failed to it.” Id., Three Justices 226. arguing petitioner’s evidentiary dissented, burden by testimony satisfied was that no black had ever served on petit jury county. a id., relevant 228-247 (Goldberg, joined by Douglas, J., Warren, C. J., J., dissenting).
Significantly, very the Swain Court reached a different respect peremptory- conclusion with to the second kind of challenge opinion, II scenario. Part of its the Court held peremptory challenges that the State’s use of to exclude particular jury assumption blacks from a based on the or be- they likely lief that would be more to favor a black defendant equal protection. does not violate at 209-222. Id., Justice writing explained: Court, for the White, challenges permit rejection jurors for cause ‘While narrowly specified, provable legally cognizable a partiality, peremptory permits rejection basis of for imagined easily partiality desig- a real or that is less Hayes nated or Missouri, demonstrable. upon [1887].
68, 70 It is often exercised the ‘sudden im- pressions prejudices apt and unaccountable we are upon gestures the bare another,’ conceive looks and upon [v. States, 370,] Lewis United 376 [1892], Hayes juror’s and associations,’ a ‘habits v. Missouri, upon feeling supra, question- or that ‘the bare ing juror’s] provoke [a indifference sometimes a re- supra, frequently at 376. It is no less sentment,’ Lewis, normally thought grounds exercised on irrelevant namely, legal proceedings action, race, or official re- nationality, occupation people ligion, or affiliations of prosecutor question jury duty. For summoned juror not whether must decide is defense counsel partial, nationality but particular in fact race or likely group to be. is less from a different one whether solely always judged veniremen are . . . Hence *48 exercising peremptory purpose the of individuals for light challenged they challenges. in of the Rather are may knowledge which in- them, counsel has limited group of the case in the context their affiliations, clude tried. to be hold that in we cannot mind, these considerations
With particular striking Negroes is a denial of in a case the impar- quest equal protection an In the of the laws. jury, Negro qualified Protestant and white, tial and being challenged subject without are alike Catholic, challenge any par- subject prosecutor’s the cause. To and traditional standards case to the demands ticular change Equal entail a radical Clause would the Protection challenge. operation chal- the nature and the longer peremptory pro lenge, . . . .” no tanto, would omitted). (emphasis added; footnotes at 220-222 Id., opinion, beginning III Court Part of the Swain At the permissible to insulate have decided that it is reiterated: “We particular jury Negroes inquiry from a the removal of from acceptable acting assumption prosecutor is on that the on the trying, particular the case he is related to considerations charged.” particular Id., crime involved and the defendant at 223 added). (emphasis not take issue with the ma- dissenters did Even the Swain Equal jority’s position Protection Clause does not that the challenges using peremptory prohibit its from the State they assumption or belief that exclude blacks based on partial The dissenters em- defendant. would be to a black evidentiary concerning phasized burden that their view equal protection facing alleges an claim who defendant challenges use of “would based on the State’s systematic [not] Negroes mean where exclusion of from jury prosecutor’s service has not been shown, motives subject question judicial inquiry are or when he excludes Negroes group sitting other on a in a particular (Goldberg, dissenting) case” Id., at 245 J., added). (emphasis today Equal asserts,
The Court however, “the Protec- prosecutor challenge potential tion Clause forbids the jurors solely assumption jurors ... on the that black as a group impartially will be unable to consider the State’s case against a black defendant.” Ante, at 89. Later, discuss- ing nondiscriminatory the State’s need to establish a basis for jury, striking pros- blacks from the the Court states that “the prima ecutor rebut defendant’s facie case of by stating merely challenged jurors discrimination that he assumption defendant’s race his intuitive —or judgment they partial would be to the defendant —that *49 because their shared race.” Ante, 97. Neither of anything “evidentiary these statements has with to do the necessary equal protection burden” to establish an claim in directly contrary context, this and both statements are to the Equal by majority view of the Protection Clause shared and in the dissenters Swain. Yet the Court in the instant absolutely analysis support case offers no in of its decision to regard, Swain in overrule and in fact does not discuss opinion Part II of the Swain at all. unprecedented
I cannot subscribe to the Court’s use of the Equal scope Protection Clause restrict the historic peremptory challenge, which has been described “a neces- as sary part jury.” my of trial Swain, 380 U. S., at 219. simply nothing “unequal” view, there about the State’s using peremptory challenges its to strike blacks from the jury involving long in cases black so chal- defendants, as such lenges involving also in are used to exclude whites cases Hispanics involving Hispanic in defendants, white de- cases involving in Asians cases Asian fendants, defendants, so challenges by peremptory case-specific use of on. This single members of other blacks, not out or does State discriminatory Such matter, treatment.1 for for race seat-of-the-pants upon peremptories is at best based use of stereotypical undoubtedly crudely are instincts, which long hopelessly may many But as as mistaken. cases be jurors applied they races and all are across-the-board certainly most has I not the Court nationalities, do see—and Equal explained Protection violates the their use not —how Clause. challenges by peremptory the State use does such
Nor infringe upon any interests. The Court other constitutional suggest from the that exclusion of blacks does not challenges through results State’s use of impartiality com- fair-cross-section or of either the violation ponent n. 4. ante, 84-85, Amendment. of the Sixth See peremptory challenges case-specific use of And because by right deny jurors to serve as the State does blacks involving defendants, it harms neither the nonblack cases community. jurors remainder of the See nor the excluded ante, 87-88. age, occupa group race, or affiliations, such use juror partiality, “proxy” potential based on the as a
tion,
group
assumption
of one
are more
that members
belief
belong
group,
likely
same
has
who
favor defendants
legitimate
long
accepted
exer
basis for the State’s
been
as a
peremptory challenges.
supra;
Swain,
United
cise
1986)(en
(CA5
banc);
F. 2d 541
United
Leslie,
States
(CA8 1975),
denied,