Lead Opinion
delivered the opinion of the Court.
Wе must decide in the case before us whether a private litigant in a civil case may use peremptory challenges to exclude jurors on account of their race. Recognizing the impropriety of racial bias in the courtroom, we hold the race-based exclusion violates the equal protection rights of the challenged jurors. This civil case originated in a United States District Court, and we apply the equal protection component of the Fifth Amendment’s Due Process Clause. See Bolling v. Sharpe,
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Thaddeus Donald Edmonson, a construction worker, was injured in a jobsite accident at Fort Polk, Louisiana, a federal enclave. Edmonson sued Leesville Concrete Company for negligence in the United States District Court for the Western District of Louisiana, claiming that a Leesville employee permitted one of the company’s trucks to roll backward and pin him against some construction equipment. Edmonson invoked his Seventh Amendment right to a trial by jury.
During voir dire, Leesville used two of its three peremptory challenges authorized by statute to remove black persons from the prospective jury. Citing our deсision in Batson v. Kentucky,
Edmonson appealed, and a divided panel of the Court of Appeals for the Fifth Circuit reversed, holding that our opinion in Batson applies to a private attorney representing a private litigant and that peremptory challenges may not be used in a civil trial for the purpose of excluding jurors on the basis of race.
The full court then ordered rehearing en banc. A divided en banc panel affirmed the judgment of the District Court, holding that a private litigant in a civil case can exercise peremptory challenges without accountability for alleged racial classifications.
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In Powers v. Ohio,
Powers relied upon over a century of jurisprudence dedicated to the elimination of race prejudice within the jury selection process. See, e. g., Batson, supra, at 84; Swain v. Alabama,
That an act violates the Constitution when committed by a government official, however, does not answer the question whether the same act offends constitutional guarantees if committed by a private litigant or his attorney. The Constitution’s protections of individual liberty and equal protection apply in general only to action by the government. National Collegiate Athletic Assn. v. Tarkanian,
The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. Tarkanian, supra, at 191; Flagg Bros., Inc. v. Brooks,
We begin our discussion within the framework for state-action analysis set forth in Lugar, supra, at 937. There we considered the state-action question in the context of a due process challenge to a State’s procedure allowing private parties to obtain prejudgment attachments. We asked first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority,
There can be no question that the first part of the Lugar inquiry is satisfied here. By their very nature, peremptory challenges have no significance outside a court of law. Their sole purpose is to permit litigants to assist the government in the selection of an impartial trier of fact. While we have recognized the value of peremptory challenges in this regard, particularly in the criminal context, see Batson,
“In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.” 28 U. S. C. §1870.
Without this authorization, granted by an Act of Congress itself, Leesville would not have been able to engage in the alleged discriminatory acts.
Given that the statutory authorization for the challenges exerсised in this case is clear, the remainder of our state-action analysis centers around the second part of the Lugar test, whether a private litigant in all fairness must be deemed a government actor in the use of peremptory challenges. Although we have recognized that this aspect of the analysis is often a factbound inquiry, see Lagar, supra, at 939, our cases disclose certain principles of general application. Our precedents establish that, in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits, see Tulsa Professional Collection Services, Inc. v. Pope,
Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action, Tulsa Professional, 485 U. S., at 485, our cases have found state action when private parties make extensive use of state procedures with “the overt, significant assistance of state officials.” Id., at 486; see Lugar v. Edmondson Oil Co.,
At the outset of the selection process, prospective jurors must complete jury qualification forms as prescribed by the Administrative Office of the United States Courts. See 28 U. S. C. § 1864. Failure to do so may result in fines and imprisonment, as might a willful misrepresentation of a material fact in answering a question on the form. Ibid. In a typical case, counsel receive these forms and rely on them when exercising their peremptory strikes. See G. Bermant, Jury Selection Procedures in United States District Courts 7-8 (Federal Judicial Center 1982). The clerk of the United States district court, a federal official, summons potential jurors from their employment or other pursuits. They are required to travel to a United States courthouse, where they must report to juror lounges, assembly rooms, and courtrooms at the direction of the court and its officers. Whether or not they are selected for a jury panel, summoned jurors receive a per diem fixed by statute for their service. 28 U. S. C. § 1871.
The trial judge exercises substantial control over voir dire in the federal system. See Fed. Rule Civ. Proc. 47. The judge determines the range of information that may be discovered about a prospective juror, and so affects the exercise of both challenges for cause and peremptory challenges. In some cases, judges may even conduct the entire voir dire by themselves, a common practice in the District Court where the instant case was tried. See Louisiana Rules of Court, Local Rule 13.02 (WD La. 1990). The judge oversees the exclusion of jurors for cause, in this way determining which jurors remain eligible for the exercise of peremptory strikes. In cases involving multiple parties, the trial judge decides how peremptory challenges shall be allocated among them. 28 U. S. C. § 1870. When a lawyer exercises a peremptory
As we have outlined here, a private party could not exercise its peremptory challenges absent the overt, significant assistance of the court. The government summons jurors, constrains their freedom of movement, and subjects them to public scrutiny and examination. The party who exercises a challenge invokes the formal authority of the court, which must discharge the prospective juror, thus effecting the “final and practical denial” of the excluded individual’s opportunity to serve on the petit jury. Virginia v. Rives,
In determining Leesville’s state-actor status, we next consider whether the action in question involves the performance of a traditional function of the government. A traditional function of government is evident here. The peremptory challenge is used in selecting an entity that is a quintessential governmental body, having no attributes of a private actor. The jury exercises the power of the court and of the government that confers the court’s jurisdiction. As we noted in Powers, the jury system performs the critical governmental functions of guarding the rights of litigants and “ensuring] continued acceptance of the laws by all of the people.”
If a government confers on a private body the power to choose the government’s employees or officials, the private body will be bound by the constitutional mandate of race neutrality. Cf. Tarkanian,
*626 “[W]hen a state structures its electoral apparatus in a form which devolves upon a political organization the uncontested choice of public officials, that organization itself, in whatever disguise, takes on those attributes of government which draw the Constitution’s safeguards into play.”345 U. S., at 484 .
The principle that the selection of state officials, other than through election by all qualified voters, may constitute state action applies with even greater force in the context of jury selection through the use of peremptory challenges. Though the motive of a peremptory challenge may be to protect a private interest, the objective of jury selection proceedings is to determine representation on a governmental body. Were it not for peremptory challenges, there would be no question that the entire process of determining who will serve on the jury constitutes state action. The fact that the government delegates some portion of this power to private litigants does not change the governmental character of the power exercised. The delegation of authority that in Terry occurred without the aid of legislation occurs here through explicit statutory authorization.
We find respondent’s reliance on Polk County v. Dodson,
Our decision in West v. Atkins,
“Under state law, the only medical care West could receive for his injury was that provided by the State. If Doctor Atkins misused his power by demonstrating deliberate indiffеrence to West’s serious medical needs, the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State’s exercise of its right to punish West by incarceration and to deny him a venue independent of the State to obtain needed medical care.” Id., at 55.
In the case before us, the parties do not act pursuant to any contractual relation with the government. Here, as in most civil cases, the initial decision whether to sue at all, the selection of counsel, and any number of ensuing tactical choices in the course of discovery and trial may be without the requisite governmental character to be deemed state
Finally, we note that the injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself. Few places are a more real expression of the constitutional authority of the government than a courtroom, where the law itself unfolds. Within the courtroom, the government invokes its laws to determine the rights of those who stand before it. In full view of the public, litigants press their cases, witnesses give testimony, juries render verdicts, and judges act with the utmost care to ensure that justice is done.
Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality. Rose v. Mitchell,
B
Having held that in a civil trial exclusion on account of race violates a prospective juror’s equal protection rights, we con
Our conclusion in Powers that persons excluded from jury service will be unable to protect their own rights applies with equal force in a civil trial. While individual jurors subjected to peremptory racial exclusion have the right to bring suit on their own behalf, “[t]he barriers to a suit by an excluded juror are daunting.” Id., at 414. We have no reason to believe these barriers would be any less imposing simply because a person was excluded from jury service in a civil proceeding. Likewise, we find the relation between the excluded venireperson and the litigant challenging the exclusion to be just as close in the civil context as in a criminal trial. Whether in a civil or criminal proceeding, “[vjoir dire permits a party to establish a relation, if not a bond of trust, with the jurors,” a relation that “continues throughout the entire trial.” Id., at 413. Exclusion of a juror on the basis of race severs that relation in an invidious way.
We believe the only issue that warrants further consideration in this case is whether a civil litigant can demonstrate a sufficient interest in challenging the exclusion of jurors on account of race. In Powers, we held:
“The discriminatory use of peremptory challenges by the prosecution causes a criminal defendant cognizable*630 injury, and the defendant has a concrete interest in challenging the practice. See Allen v. Hardy, 478 U. S. [255,] 259 [(1986)] (recognizing a defendant’s interest in ‘neutral jury selection procedures’). This is not because the individual jurors dismissed by the prosecution may have been predisposed to favor the defendant; if that were true, the jurors might have been excused for cause. Rather, it is because racial discrimination in the selection of jurors ‘casts doubt on the integrity of the judicial process,’ Rose v. Mitchell, [supra, at 556], and places the fairness of a criminal proceeding in doubt.” Id., at 411.
The harms we recognized in Powers are not limited to the criminal sphere. A civil proceeding often implicates significant rights and interests. Civil juries, no less than their criminal counterparts, must follow the law and act as impartial factfinders. And, as we have observed, their verdicts, no less than those of their criminal counterparts, become binding judgments of the court. Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal. See Thiel v. Southern Pacific Co.,
It may be true that the role of litigants in determining the jury’s composition provides one reason for wide acceptance of the jury system and of its verdicts. But if race stereotypes are the price for acceptance of a jury panel as fair, the price is too high to meet the standard of the Constitution. Other means exist for litigants to satisfy themselves of a jury’s impartiality without using skin color as a test. If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes
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It remains to consider whether a prima facie case of racial discrimination has been established in the case before us, requiring Leesville to offer race-neutral explanations for its peremptory challenges. In Batson, we held that determining whether a prima facie case has been established requires consideration of all relevant circumstances, including whether there has been a pattern of strikes against members of a particular race.
The judgment is reversed, and the case is remanded for further proceedings consistent with our opinion.
It is so ordered.
Dissenting Opinion
with whom The Chief Justice and Justice Scalia join, dissenting.
The Court concludes that the action of a private attorney exercising a peremptory challenge is attributable to the government and therefore may compose a constitutional viola
I — I
In order to establish a constitutional violation, Edmonson must first demonstrate that Leesville’s use of a peremptory challenge can fairly be attributed to the government. Unfortunately, our cases deciding when private action might be deemed that of the state have not been a model of consistency. Perhaps this is because the state action determination is so closely tied to the “framework of the peculiar facts or circumstances present.” See Burton v. Wilmington Parking Authority,
A
The Court begins with a perfectly accurate definition of the peremptory challenge. Peremptory challenges “allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury.” Ante, at 620. This description is worth more careful analysis, for it belies the Court’s later conclusions about the peremptory.
The peremptory challenge “allow[s] parties,” in this case private parties, to exclude potential jurors. It is the nature of a peremptory that its exercise is left wholly within the discretion of the litigant. The purpose of this longstanding practice is to establish for each party an “ ‘arbitrary and capricious species of challenge’ ” whereby the “ ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another’ ” may be acted upon. Lewis v. United States,
The Court amasses much ostensible evidence of the Federal Government’s “overt, significant assistance” in the' peremptory process. See ante, at 624. Most of this evidence is irrelevant to the issue at hand. The bulk of the practices the Court describes — the establishment of qualifications for jury service, the location and summoning of prospective jurors, the jury wheel, the voter lists, the jury qualification forms, the per diem for jury service — are independent of the statutory entitlement to peremptory strikes, or of their use. All of this government action is in furtherance of the Government’s distinct obligation to provide a qualified jury; the Government would do these things even if there were no peremptory challenges. All оf this activity, as well as the trial judge’s control over voir dire, see ante, at 623-624, is merely a prerequisite to the use of a peremptory challenge; it does not constitute participation in the challenge. That these actions may be necessary to a peremptory challenge— in the sense that there could be no such challenge without a venire from which to select — no more makes the challenge state action than the building of roads and provision of public transportation makes state action of riding on a bus.
The entirety of the government’s actual participation in the peremptory process boils down to a single fact: “When a lawyer exercises a peremptory challenge, the judge advises the juror he or she has been excused.” Ibid. This is not significant participation. The judge’s action in “advising” a juror that he or she has been excused is state action to be sure. It is, however, if not de minimis, far from what our cases have required in order to hold the government “responsible” for private action or to find that private actors “represent” the government. See Blum, supra, at 1004; Tarkanian, supra, at 191. The governmеnt “normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant en
As an initial matter, the judge does not “encourage” the use of a peremptory challenge at all. The decision to strike a juror is entirely up to the litigant, and the reasons for doing so are of no consequence to the judge. It is the attorney who strikes. The judge does little more than acquiesce in this decision by excusing the juror. In point of fact, the government has virtually no role in the use of peremptory challenges. Indeed, there are jurisdictions in which, with the consent of the parties, voir dire and jury selection may take place in the absence of any court personnel. See Haith v. United States,
The alleged state action here is a far cry from that which the Court found, for example, in Shelley v. Kraemer,
There is another important distinction between Shelley and this case. The state courts in Shelley used coercive force to impose conformance on parties who did not wish to discriminate. “Enforcement” of peremptory challenges, on
Nor is this the kind of significant involvement found in Tulsa Professional Collection Services, Inc. v. Pope,
The Court relies also on Burton v. Wilmington Parking Authority,
Jackson is a more appropriate analogy to this case. Metropolitan Edison terminated Jackson’s electrical service under authority granted it by the State, pursuant to a procedure approved by the state utility commission. Nonetheless, we held that Jackson could not challenge the termination procedure on due process grounds. The termination was not state action because the State had done nothing to encourage the particular termination practice:
“Approval by a state utility commission of such a request from a regulated utility, where the commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the commission into 'state action.’ . . . Respondent’s exercise of the choice allowed by state law where the initiative comes from it and not from the State, does not make its action in doing so ‘state action’ for purposes of the Fourteenth Amendment.” Id., at 357 (emphasis added; footnote omitted).
The similarity to this case is obvious. The Court’s “overt, significant” government participation amounts to the fact that the government provides the mechanism whereby a litigant can choose to exercise a peremptory challenge. That the government allows this choice and that the judge approves it, does not turn this private decision into state action.
To the same effect is Flagg Bros., Inc. v. Brooks,
“The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.” Swain,
B
The Court errs also when it concludes that the exercise of a peremptory challenge is a traditional government function. In its definition of the peremptory challenge, the Court asserts, correctly, that jurors struck via peremptories “otherwise . . . satisfy the requirements for service on the petit jury.” Ante, at 620. Whatever reason a private litigant may have for using a peremptory challenge, it is not the government’s reason. The government otherwise establishes its requirements for jury service, leaving to the private litigant the unfettered discretion to use the strike for any reason. This is not part of the government’s function in establishing the requirements for jury service. “‘Peremptory challenges are exercised by a party, not in selection of jurors, but in rejection. It is not aimed at disqualification, but is exercised upon qualified jurors as matter of favor to the challenger.’” C. Lincoln, Abbott’s Civil Jury Trials 92 (3d ed. 1912), quoting O’Neil v. Lake Superior Iron Co.,
A peremptory challenge by a private litigant does not meet the Court’s standard; it is not a traditional government function. Beyond this, the Court has misstated the law. The Court cites Terry v. Adams,
West v. Atkins,
The present case is closer to Jackson, supra, and Rendell-Baker v. Kohn,
C
None of this should be news, as this case is fairly well controlled by Polk County v. Dodson,
Trials in this country are adversarial proceedings. Attorneys for private litigants do not act on behalf of the government, or even the public as a whole; attorneys represent their clients. An attorney’s job is to “advanc[e] the “undivided interests of his client.’ This is essentially a private function ... for which state office and authority are not
“[I]t is the function of the public defender to enter not guilty’ pleas, move to suppress State’s evidence, object to evidence at trial, cross-examine State’s witnesses, and make closing arguments in behalf of defendants. All of these are adversarial functions. We find it peculiarly difficult to detect any color of state law in such activities.” Id., at 320 (footnote omitted).
Our conclusion in Dodson was that “a public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Id., at 325. It cannot be gainsaid that a peremptory strike is a traditional adversarial act; parties use these strikes to further their own perceived interests, not as an aid to the government’s process of jury selection. The Court does not challenge the rule of Dodson, yet сoncludes that private attorneys performing this adversarial function are state actors. Where is the distinction?
The Court wishes to limit the scope of Dodson to the actions of public defenders in an adversarial relationship with the government. Ante, at 626-627. At a minimum then, the Court must concede that Dodson stands for the proposition that a criminal defense attorney is not a state actor when using peremptory strikes on behalf of a client, nor is an attorney representing a private litigant in a civil suit against the government. Both of these propositions are true, but the Court’s distinction between this case and Dodson turns state action doctrine on its head. Attorneys in an adversarial relation to the state are not state actors, but that does not mean that attorneys who are not in such a relation are state actors.
The Court is plainly wrong when it asserts that “[i]n the jury selection process, the government and private litigants work for the same end.” See ante, at 627. In a civil trial,
Constitutional “liability attaches only to those wrongdoers Vho carry a badge of authority of [the government] and represent it in some capacity.’” Tarkanian,
II
Beyond “significant participation” and “traditional function,” the Court’s final argument is that the exercise of a peremptory challenge by a private litigant is state action because it takes place in a courtroom. Ante, аt 628. In the end, this is all the Court is left with; peremptories do not involve the “overt, significant participation of the government,” nor do they constitute a “traditional function of the government.” The Court is also wrong in its ultimate claim. If Dodson stands for anything, it is that the actions of a lawyer in a courtroom do not become those of the government by virtue of their location. This is true even if those actions are based on race.
Racism is a terrible thing. ,Tt is irrational, destructive, and mean. Arbitrary discrimination based on race is particularly abhorrent when manifest'in a courtroom, a forum
Notes
Dodson was a case brought under Rev. Stat. § 1979, 42 U. S. C. § 1983, the statutory mechanism for many constitutional clаims. The issue in that case, therefore, was whether the public defender had acted “under color of state law.”
Dissenting Opinion
dissenting.
I join Justice O’Connor’s dissent, which demonstrates that today’s opinion is wrong in principle. I write to observe that it is also unfortunate in its consequences.
The concrete benefits of the Court’s newly discovered constitutional rule are problematic. It will not necessarily be a net help rather than hindrance to minority litigants in obtaining racially diverse juries. In criminal cases, Batson v. Kentucky,
The concrete costs of today’s decision, on the other hand, are not at all doubtful; and they are enormous. We have now added to the duties of already-submerged state and federal trial courts the obligation to assure that race is not included among the other factors (sex, age, religion, political
Although today’s decision neither follows the law nor produces desirable concrete results, it certainly has great symbolic value. To overhaul the doctrine of state action in this fashion — what a magnificent demonstration of this institution’s uncompromising hostility to race-based judgments, even by private actors! The price of the demonstration is, alas, high, and much of it will be paid by the minority litigants who use our courts. J, dissent.