Twenty-Five Years of Batson: An Introduction to ... - University of Iowa

Twenty-Five Years of Batson: An 

Introduction to Equal Protection 

Regulation of Peremptory Jury Challenges 

James J. Tomkovicz 

I. FROM STRAUDER TO SWAIN TO BATSON: THE EQUAL PROTECTION 

PROHIBITION ON DISCRIMINATORY JUROR SELECTION ........................ 1395 

A. STRAUDER V. WEST VIRGINIA: STATUTORY PROVISIONS FOR ALL- 

WHITE VENIRES AND EQUAL PROTECTION ....................................... 1395 

B. SWAIN V. ALABAMA: PEREMPTORY STRIKES OF BLACK JURORS AND 

EQUAL PROTECTION ....................................................................... 1396 

C. BATSON V. KENTUCKY: PEREMPTORY CHALLENGES AND EQUAL 

PROTECTION REDUX ....................................................................... 1399 

D. BATSON HIGHLIGHTS: STARK DEPARTURES FROM THE PAST, 

UNKNOWN PROSPECTS FOR THE FUTURE .......................................... 1402 

II. TWENTY-FIVE YEARS OF BATSON PROGENY: DEFINING THE SCOPE, 

DETAILING THE OPERATION ................................................................ 1406 

A. EXPANDING BATSON’S REALM ........................................................ 1406 

B. REFINING BATSON’S DOCTRINE ...................................................... 1411 

C. MONITORING BATSON’S IMPLEMENTATION..................................... 1416 

III. CONCLUSION ....................................................................................... 1423 

Edward F. Howrey Professor of Law, The University of Iowa College of Law. I am 

grateful to The University of Iowa College of Law for research support. Ryan Melcher and Greg 

Taylor provided excellent research and editorial assistance. In addition, Dean Gail Agrawal 

deserves credit for responding enthusiastically to my request for institutional support for the 

symposium. Moreover, my valued former colleague, Margaret Raymond, was instrumental in so 

many ways in planning the event. Without her input and participation, it surely would not have 

come about. Finally, Iowa Law Review Editor-in-Chief, Brian Jones, and Senior Articles Editor, 

Sheila Bentzen, deserve much credit for graciously agreeing to publish the symposium’s 

scholarly products. Their thoughtful decision provided an invaluable impetus. 

1393

1394 IOWA LAW REVIEW [Vol. 97:1393 

On April 30, 2011, Batson v. Kentucky celebrated its twenty-fifth 

anniversary. Although not every member of the Supreme Court is convinced 

of Batson’s merits, 1 there is no movement afoot to overturn or dramatically 

modify it. A solid majority remains committed to the principles of Batson and 

its progeny and to the doctrinal framework that gives concrete content to 

Equal Protection Clause regulation of peremptory jury challenges. While the 

Court cannot always ensure faithful implementation of Batson, in recent 

years the Justices have intervened when lower courts have been unfaithful to 

the spirit of that landmark ruling. 2 

The Court has confronted Batson issues on several occasions since 1986. 

Some opinions have resolved significant questions about the breadth of 

Fourteenth Amendment constraints upon peremptory challenges. 3 Others 

have involved efforts to prescribe the content of Batson’s doctrinal 

framework with greater precision. 4 Still others have revolved entirely around 

the correct application of the Batson doctrine to particular fact situations. 5 

The twenty-fifth anniversary of Batson is a fitting occasion for serious 

evaluation of both Batson and its descendants. This symposium’s goals are to 

document the landmark’s current status, to monitor its vitality, to assess its 

impacts, and to reflect upon its future. The essays that follow ably 

accomplish these goals. Indeed, the authors have provided an impressive 

array of insights into and evaluations of Batson and a number of provocative 

critiques of its significance and efficacy. 

This introductory Essay serves as a primer. The primary objective is to 

furnish a foundation for the analyses that follow. Part I describes the law 

prior to 1986 and documents how Batson dramatically altered the legal 

landscape, highlighting noteworthy facets of the Batson decision. Part II 

surveys and summarizes post-Batson developments. Part III concludes. 

1. See, e.g., Georgia v. McCollum, 505 U.S. 42, 60–62 (1992) (Thomas, J., concurring); 

Powers v. Ohio, 499 U.S. 400, 425–26, 429–30 (1991) (Scalia, J., dissenting). 

2. See Snyder v. Louisiana, 552 U.S. 472 (2008); Miller-El v. Dretke, 545 U.S. 231 (2005); 

Miller-El v. Cockrell, 537 U.S. 322 (2003). 

3. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (holding that gender-based 

strikes are unconstitutional); McCollum, 505 U.S. 42 (extending Batson doctrine to defense 

peremptories); Powers, 499 U.S. 400 (concluding that defendant may raise equal protection 

challenge to peremptory strikes of jurors of a different race). 

4. See Johnson v. California, 545 U.S. 162 (2005); Purkett v. Elem, 514 U.S. 765 (1995) 

(per curiam); Hernandez v. New York, 500 U.S. 352 (1991). 

5. See Felkner v. Jackson, 131 S. Ct. 1305 (2011); Snyder, 552 U.S. 472; Miller-El v. Dretke, 

545 U.S. 231; Miller-El v. Cockrell, 537 U.S. 322.

2012] TWENTY-FIVE YEARS OF BATSON 1395 

I. FROM STRAUDER TO SWAIN TO BATSON: THE EQUAL PROTECTION 

PROHIBITION ON DISCRIMINATORY JUROR SELECTION 

The Supreme Court found roots for Batson in a number of its prior 

decisions. The two most significant precedents were Strauder v. West Virginia 6 

and Swain v. Alabama. 7 This section summarizes those two opinions, explains 

Batson’s holding, and explores its premises. 

A. STRAUDER V. WEST VIRGINIA: STATUTORY PROVISIONS FOR ALL-WHITE VENIRES 

AND EQUAL PROTECTION 

Strauder v. West Virginia—decided more than a century before Batson— 

involved a state statute providing that only “white male persons” were 

eligible “to serve as jurors.” 8 Strauder, a black man indicted for murder by 

an all-white, all-male grand jury, moved “to quash the venire,” asserting that 

the preclusion of blacks from jury service “was unconstitutional.” 9 After the 

trial court overruled this motion, an all-male, all-white jury convicted 

Strauder, and the West Virginia Supreme Court affirmed. 10 

The question before the Supreme Court was whether, under “the 

Constitution and laws of the United States, every citizen . . . has a right to a 

trial of an indictment against him by a jury selected and impanelled without 

discrimination against his race or color, because of race or color.” 11 More 

specifically, the issue was “whether, in the composition or selection of 

jurors . . . all persons of [a colored man’s] race or color may be excluded by 

law, solely because of their race or color, so that by no possibility can any 

colored man sit upon the jury.” 12 The Justices found guidance in the 

recently adopted Fourteenth Amendment command “that no State shall . . . 

deny to any person . . . the equal protection of the laws.” 13 

According to Strauder, the “purpose” of the Equal Protection Clause was 

to “secur[e] to a race recently emancipated . . . all the civil rights that the 

superior race enjoy.” 14 Its “spirit and meaning” was, quite simply, 

that the law in the States shall be the same for the black as for the 

white; that all persons, whether colored or white, shall stand equal 

before the laws of the States, and, in regard to the colored race . . . 

6. Strauder v. West Virginia, 100 U.S. 303 (1879). 

7. Swain v. Alabama, 380 U.S. 202 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 

(1985). 

8. Strauder, 100 U.S. at 305 (quoting 1873 W. Va. Acts 102). 

9. Id. at 304–05 (quoting Strauder’s motions to quash the venire). 

10. Id. at 305. 

11. Id. 

12. Id. 

13. Id. at 307. The Fourteenth Amendment was adopted in 1868, just eleven years before 

Strauder. 

14. Id. at 306.


that no discrimination shall be made against them by law because 

of their color. 15 

The Justices had no doubt that West Virginia’s statute was 

discriminatory. 16 By restricting jury service to whites, West Virginia deprived 

potential black jurors of their constitutional entitlement. 17 Moreover, the 

statute unconstitutionally discriminated against black defendants who were put 

on trial. 18 In West Virginia, white men were entitled to trials by juries of their 

peers “selected without discrimination.” 19 Black men, who had no such 

entitlement, were denied the equal “protection of life and liberty against 

race or color prejudice.” 20 To subject a black man to trial “by a jury drawn 

from a panel from which the State has expressly excluded every man of his 

race, because of color alone” denied him “equal legal protection.” 21 

B. SWAIN V. ALABAMA: PEREMPTORY STRIKES OF BLACK JURORS AND EQUAL 

PROTECTION 

Eighty-five years later, Robert Swain, another black man, invoked 

Strauder’s “principle” in support of a quite different equal protection claim. 22 

Swain had been tried for and convicted of rape. 23 He alleged that the 

prosecutor had violated the Fourteenth Amendment by using peremptory 

challenges to strike the six black members of the venire. 24 Alabama argued 

that its peremptory-strike system, which was a means of obtaining “fair and 

impartial” juries, “in and of itself, provide[d] justification for striking any 

15. Id. at 307. 

16. Id. at 308. 

17. Id. (explaining that the denial of the “right to participate in the administration of the 

law, as jurors, because of their color, . . . [was] practically a brand upon them, . . . an assertion 

of their inferiority, and a stimulant to that race prejudice which is an impediment to 

securing . . . equal justice”). 

18. Id. at 309. 

19. Id. 

20. Id. According to the Court, the “framers of the [Fourteenth A]mendment” knew of 

the prejudices that “often exist[ed] against particular classes in the community” and were 

motivated by an “apprehension that through [such] prejudice [black persons] might be 

denied . . . equal protection” of the laws and discriminated against. Id. 

21. Id.; see also id. at 310 (“[T]he statute of West Virginia, discriminating in the selection of 

jurors, as it does, against negroes because of their color, amounts to a denial of the equal 

protection of the laws to a colored man when he is put upon trial for an alleged offence against 

the State . . . .”). 

22. Swain v. Alabama, 380 U.S. 202, 203 (1965), overruled by Batson v. Kentucky, 476 U.S. 

79 (1985). 

23. Id. at 203. 

24. Id. at 209–10. Peremptory challenges entitle a party to remove jurors without 

furnishing any reason. Each side in a criminal case has a prescribed number of peremptories.


group of otherwise qualified jurors in any given case, whether they be 

Negroes, Catholics, accountants or those with blue eyes.” 25 

The Court validated Alabama’s position. 26 The Court recounted the 

long history of peremptory challenges in England and the United States, 27 

observing that their “function . . . is not only to eliminate extremes of 

partiality on both sides, but to assure the parties that the jurors . . . will 

decide on the basis of the evidence . . . and not otherwise.” 28 Peremptories 

thereby promote “the appearance of justice.” 29 Their “very availability” 

enables lawyers to ask “probing questions” that might uncover “bias” and 

“facilitates the exercise of challenges for cause by removing the fear” that 

questions and for-cause challenges might antagonize jurors. 30 

The essence of a peremptory challenge is an entitlement to exclude 

jurors without providing any “reason” and without any “inquiry” or “control” 

by the judge. 31 A party may reject jurors based on the jurors’ “real or 

imagined partiality,” their habits, associations, looks, or gestures or because 

of the party’s impressions, prejudices, or feelings. 32 Moreover, peremptories 

are “frequently exercised on grounds normally thought irrelevant to legal 

proceedings or official action, namely, the race, religion, nationality, occupation 

or affiliations” of potential jurors. 33 In assessing the likelihood of partiality, 

parties do not always judge jurors “as individuals,” but rather, evaluate them 

“in light of the limited knowledge” possessed, “which may include their 

group affiliations, in the context of the case to be tried.” 34 

Swain asserts that the core “principle” of Strauder was that the 

purposeful denial to African Americans of the right to serve as jurors violates 

the Equal Protection Clause. 35 The government’s strikes of blacks in an 

individual case could not violate the Strauder principle because when 

peremptories are exercised in an effort to secure “an impartial and qualified 

jury, Negro and white, Protestant and Catholic, are alike subject to being 

challenged without cause.” 36 Moreover, by examining the bases, the reasons, 

25. Id. at 211–12. 

26. Id. at 212. 

27. Id. at 212–19. 

28. Id. at 219. 

29. Id. (quoting In re Murchison, 349 U.S. 133, 136 (1955)) (internal quotation marks 

omitted). 

30. Id. at 219–20. 

31. Id. at 220. 

32. Id. 

33. Id. (emphasis added). 

34. Id. at 221 (emphasis added). 

35. Id. at 203–04. 

36. Id. at 221.


or the sincerity of peremptory challenges, courts would “radical[ly]” modify 

their character. 37 “[A] great many uses” would be forbidden. 38 

In sum, in Swain all nine Justices agreed that the positive contributions 

peremptory challenges made to the fairness of jury trials precluded 

constitutional inquiry into a prosecutor’s reasons for exercising strikes. 39 

The presumption in any case was that a prosecutor had used peremptory 

strikes “to obtain a fair and impartial jury,” and this presumption could not 

be “overcome” by “allegations” that black jurors had been excluded because 

of their race. 40 According to the Justices, to allow rebuttal of the 

presumption would have been “wholly at odds with the peremptory 

challenge system.” 41 

Swain also alleged that prosecutors had routinely and systematically 

used peremptory strikes to prevent black persons from serving as jurors, 

contending that no black person had ever served on a jury in that county. 42 

According to the majority, if Swain had demonstrated that prosecutors 

always struck all black jurors—preventing any blacks from ever serving on a 

jury in the jurisdiction—it might be “reasonable” to infer “that the 

peremptory system [was] being used to deny [blacks] the same right and 

opportunity to participate in the administration of justice enjoyed by” 

whites. 43 Swain’s proof, however, was insufficient because the record did not 

show with sufficient clarity “when, how often, and under what circumstances 

the prosecutor alone ha[d] been responsible for striking” black jurors. 44 The 

mere showing that no black person had served on a jury was inadequate to 

37. Id. at 221–22. 

38. Id. at 222. 

39. Id. The “persistence” and “extensive use” of peremptories reflected our nation’s “long 

and widely held belief that” they are “a necessary part of trial by jury.” Id. at 219. Although the 

Constitution does not require states to afford them, in our nation peremptory challenges are 

“one of the most important . . . rights secured to the accused.” Id. (quoting Pointer v. United 

States, 151 U.S. 396, 408 (1894)) (internal quotation marks omitted). 

40. Id. at 222. 

41. Id. Consequently, the Court “insulate[d] from inquiry the removal of Negroes from a 

particular jury on the assumption that the prosecutor [was] acting on acceptable considerations 

related to the case he is trying, the particular defendant involved and the particular crime 

charged.” Id. at 223. 

42. Id. at 222–23. 

43. Id. at 223–24. Remarkably, the Court did not declare that proof of such conduct would 

require that a prosecutor explain strikes, much less that it would establish a violation of equal 

protection. Instead, Justice White observed that such a situation “may well require a different 

answer,” that in such a case “the Fourteenth Amendment claim takes on added significance,” that 

“it would appear that the purpose of the peremptory challenge [was] being perverted,” that “the 

presumption protecting the prosecutor may well be overcome,” and that proof of such facts 

“might support a reasonable inference” of exclusion for improper reasons and of abuse of the 

peremptory challenge to deny blacks an equal right “to participate in the administration of 

justice.” Id. (emphases added). 

44. Id. at 224.


support an “inference of systematic discrimination” by the State because this 

part of the jury selection process was not “wholly in the hands of state 

officers.” 45 

Thus, the Swain Court immunized a prosecutor’s peremptory 

challenges in individual cases from equal protection scrutiny. The 

government’s consistent use of peremptory challenges to keep black venire 

members from serving on juries might be unconstitutional for the same 

reasons that a whites-only statute was unconstitutional. 46 However, the proof 

demanded to establish a prima facie case of forbidden discrimination made 

it virtually impossible to prevail with an equal protection challenge to 

peremptories. 47 

C. BATSON V. KENTUCKY: PEREMPTORY CHALLENGES AND EQUAL PROTECTION 

REDUX 

Twenty-one years later, in Batson v. Kentucky, the Court reexamined the 

relationship between the prosecution’s peremptory removal of black jurors 

and the Equal Protection Clause. 48 The Court’s surprising opinion 

revolutionized that relationship. 

James Batson, a black man, was accused of burglary and receiving stolen 

goods. 49 Because the government struck all four black venire members, his 

jury was all white. 50 Defense counsel asked the court to discharge the jury, 

claiming that the removal of the black jurors had violated Batson’s Sixth 

Amendment right “to a jury drawn from a cross section of the community” 

and his Fourteenth Amendment right “to equal protection of the laws.” 51 

The trial judge rejected both contentions, and the jury convicted Batson of 

both crimes. 52 After the Kentucky Supreme Court also rejected Batson’s 

constitutional arguments, the Supreme Court granted certiorari. 53 

45. Id. at 227. Three Justices believed that when a defendant showed that no black person 

had ever served on a petit jury and that the prosecutor had used peremptory challenges to 

exclude blacks from his jury, he established “a reasonable inference that the State [was] 

involved” in unconstitutional discrimination. Id. at 241 (Goldberg, J., dissenting). Absent 

rebuttal, the defendant should prevail. Id. at 245–46. The majority’s demand for additional 

proof of state involvement was inconsistent with and undermined Strauder’s principles. Id. at 

231, 246. 

46. The Court was suggesting that it might not tolerate the circumvention of Strauder 

involved in having a neutral eligibility statute but a step in the actual selection process at which 

state actors always blocked blacks from reaching petit juries. 

47. See Swain, 380 U.S. at 241–42, 246 (Goldberg, J., dissenting). 

48. Batson v. Kentucky, 476 U.S. 79 (1986). 

49. Id. at 82. 

50. Id. at 83. 

51. Id. 

52. Id. 

53. Id. at 84.


Realizing that Swain precluded an equal protection argument based on 

the strikes at his trial, and “in an apparent effort to avoid inviting the Court 

directly to reconsider” that decision, the petitioner claimed only a 

deprivation of his Sixth and Fourteenth Amendment entitlement “to a jury 

drawn from a cross section of the community.” 54 The State sought to unmask 

Batson’s contention, maintaining that he was actually claiming an equal 

protection violation and that the Court could sustain that claim only by 

reconsidering Swain. 55 The Justices agreed that Batson’s challenge 

implicated “equal protection principles” and decided to revisit Swain, 56 

departing dramatically from its premises and conclusions. 

Writing for the majority, Justice Powell began with Strauder’s 

pronouncement that a state “denies a black defendant equal protection . . . 

when it puts him on trial before a jury from which members of his race have 

been purposely excluded.” 57 Racially discriminatory exclusion violates a 

defendant’s equal protection right by “den[ying] him the protection that 

a . . . jury is intended to secure.” 58 It deprives an accused of judgment by his 

peers, a vital safeguard “against the arbitrary exercise of power by prosecutor 

or judge.” 59 Moreover, it enables officials to oppress minorities and denies 

defendants their right to protection against race prejudice. 60 The Batson 

majority observed that discriminatory exclusion also violates the excluded 

jurors’ rights. 61 A juror’s competence depends on his “qualifications and 

ability impartially to consider evidence,” not on his race. 62 Furthermore, 

race-based exclusion harms “the entire community” by “undermin[ing] 

public confidence in the fairness of our system of justice.” 63 

Significantly, the Court declared that the “principles” forbidding racial 

discrimination in the selection of venires also extended to petit juries. 64 This 

extension subjected the prosecution’s peremptory challenges “to the 

commands” of equal protection. 65 The result was a Fourteenth Amendment 

54. Id. at 84 n.4. 

55. Id. 

56. Id. The Court “express[ed] no view on the merits of any of petitioner’s Sixth 

Amendment arguments.” Id. 

57. Id. at 85. 

58. Id. at 86. 

59. Id. 

60. Id. at 86 n.8. 

61. Id. at 87. 

62. Id. (citing Thiel v. S. Pac. Co., 328 U.S. 217, 223–24 (1946)). 

63. Id. at 87. According to the majority, race discrimination in the courtroom “is most 

pernicious because it is ‘a stimulant to that race prejudice which is an impediment to 

securing . . . equal justice’” for blacks. Id. at 87–88 (quoting Strauder v. West Virginia, 100 U.S. 

303, 308 (1879)). 

64. Id. at 88. 

65. Id. at 89.


constraint on the principle that the government “ordinarily is entitled to 

exercise . . . peremptory challenges ‘for any reason at all.’” 66 Put simply, “the 

Equal Protection Clause forbids . . . challenge[s to] potential jurors solely on 

account of their race or on the assumption that black jurors as a group will 

be unable impartially to consider the State’s case against a black 

defendant.” 67 

According to the Court, Swain recognized that the equal protection 

guarantee prevented the government from perverting peremptory 

challenges into a tool for denying blacks opportunities to serve. 68 The defect 

in that decision was procedural—it had “placed on defendants a crippling 

burden of proof” and had effectively “immun[ized peremptories] from 

constitutional scrutiny. 69 Post-Swain decisions had established “that a 

defendant [could] make a prima facie showing of purposeful racial 

discrimination in selection of the venire by relying solely on the facts . . . in 

his case.” 70 Proof of a pattern of discrimination was unnecessary because an 

individual who suffers discrimination is denied equal protection whether or 

not the government discriminated against others. 71 The Batson majority 

found no reason not to extend these venire-selection principles to the petit 

jury selection process—and more specifically, to a prosecutor’s use of 

peremptories. 72 Directly contravening Swain, the Court held “that a 

defendant may establish a prima facie case of purposeful discrimination in 

selection of the petit jury solely on evidence concerning the prosecutor’s 

exercise of peremptory challenges at [his] trial.” 73 

To establish a prima facie case, an accused “first must show that he is a 

member of a cognizable racial group . . . and that the prosecutor has” used 

peremptories to remove members of the accused’s race. 74 The defendant 

may then rely on the indisputable proposition that peremptory challenges 

enable discrimination by those inclined to discriminate. 75 “Finally, the 

defendant must show that these facts and any other relevant circumstances 

raise an inference” of juror exclusion “on account of their race.” 76 Judges 

66. Id. (quoting United States v. Robinson, 421 F. Supp. 467, 473 (D. Conn. 1976)) 

(internal quotation marks omitted). 

67. Id. 

68. Id. at 91. 

69. Id. at 92–93. 

70. Id. at 95. 

71. Id. at 95–96. 

72. Id. at 96. 

73. Id. 

74. Id. 

75. Id. 

76. Id.


must consider all pertinent circumstances to decide whether a defendant 

has raised such an inference. 77 

If the accused clears this hurdle, “the burden shifts to the State” to 

furnish “a neutral explanation” for the allegedly discriminatory strikes. 78 

Although the “explanation need not rise to the level justifying . . . a 

challenge for cause,” 79 a prosecutor cannot “merely” affirm his good faith or 

deny an intent to discriminate. 80 More important, the prosecution “may not 

rebut [a] . . . prima facie case of discrimination by stating merely that he 

challenged jurors of the defendant’s race on the assumption—or his 

intuitive judgment—that they would be partial to the defendant because of 

their shared race.” 81 In fact, the state denies equal protection when it 

“strike[s] black veniremen on the assumption that they will be biased in a 

particular case simply because the defendant is black.” 82 If a prosecutor 

offers an adequate rebuttal explanation, a trial judge then has “the duty to 

determine if the defendant has” carried the burden of “establish[ing] 

purposeful discrimination.” 83 

Because Batson “made a timely objection to the prosecutor’s” use of 

peremptory challenges to “remov[e] . . . all black persons,” and the trial 

judge “flatly rejected the objection without” inquiry, the Court remanded 

the case for reconsideration in light of the prescribed standards. 84 

D. BATSON HIGHLIGHTS: STARK DEPARTURES FROM THE PAST, UNKNOWN 

PROSPECTS FOR THE FUTURE 

Before documenting the Court’s post-Batson journey, a few observations 

about Justice Powell’s landmark opinion are in order. The discussion that 

follows reflects upon the dramatic changes Batson effected and the 

uncertainties it generated. 

The Batson majority downplayed the magnitude of its alteration of the 

relationship between the Equal Protection Clause and peremptory 

77. Id. at 96–97. 

78. Id. at 97. Later, the majority suggested that a “neutral explanation related to the 

particular case to be tried” was necessary, id. at 98 (emphasis added), and indicated that rebuttal 

requires a “‘clear and reasonably specific’ explanation of [the prosecutor’s] ‘legitimate 

reasons,’” id. at 98 n.20 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 

(1981)). 

79. Id. at 97. 

80. Id. at 98. 

81. Id. at 97. 

82. Id. Exclusion based on “such assumptions” would render the Fourteenth Amendment 

guarantee “meaningless.” Id. at 97–98. The Justices asserted that their decision would neither 

defeat the “fair trial values” peremptory challenges promote nor result in “serious 

administrative difficulties.” Id. at 98–99. 

83. Id. at 98. 

84. Id. at 100.


challenges. Although Swain indicated that equal protection principles might 

bar discriminatory strikes that prevented any blacks from sitting on juries, 

the proof demanded precluded any real constitutional regulation of the 

peremptory challenge system. Batson’s abandonment of that restriction— 

characterized as a relatively modest alteration of Swain’s burden of proof 

and based in part on general equal protection principles—was a dramatic, 

revolutionary step. 85 The allowance of equal protection claims based on the 

strikes in a single trial made frequent and substantial interference with the 

traditional operation of the peremptory system a realistic possibility. 

Whether or not claims of discrimination ultimately succeeded, it seemed 

likely that they would constrain prosecutors’ freedom to remove jurors and 

disrupt the accustomed processes of empanelling juries. The theoretical and 

practical ramifications of Batson’s procedural modification were considerably 

greater than the majority acknowledged. 86 

More noteworthy was the majority’s refusal to acknowledge that it was 

also foreswearing a substantive constitutional premise that no Justice found 

objectionable in Swain. 87 The Swain Court did not believe that removing a 

juror because of an assumption that her race would influence her 

deliberations was unconstitutional. 88 What the Fourteenth Amendment 

forbade was exclusion based on racial animus or a conclusion that members 

of a race were incompetent or unqualified. 89 The peremptory system 

permitted litigants to speculate and make inferences about how a person’s 

background and characteristics—including race—might impact mental 

processes and affect verdicts. 90 This use of peremptories was not purposeful 

discrimination that offended the Fourteenth Amendment’s spirit. There 

was, after all, no inequality when all individuals were subject to exclusion 

based on assumptions that their race could incline them against the 

government’s efforts to convict defendants of their race. 91 

In contrast, Batson held that peremptory challenges prompted by 

inferences that jurors’ perspectives and predilections could be affected by 

their racial identity deny equal protection. According to the majority, the 

Constitution forbids strikes based on the unsupported conclusion that race 

85. The magnitude of Batson’s change of course is illustrated by the fact that no Justice in 

Swain advocated constitutional scrutiny based on strikes in a single case. 

86. The Court rejected the contention that abandonment of the presumption of 

legitimate use in individual cases jeopardized the functioning of the peremptory system. See 

Batson, 476 U.S. at 98–99. 

87. See id. at 134–37 (Rehnquist, J., dissenting). 

88. Swain v. Alabama, 380 U.S. 202, 212, 220–21 (1965), overruled by Batson, 476 U.S. 79. 

89. Id. at 203, 224. The statute struck down in Strauder was objectionable because its 

exclusion of blacks from juries rested on this discriminatory premise. Id. 

90. Id. at 220–21. 

91. Id. at 221 (observing that all groups “are alike subject to being challenged without 

cause”).


could impair impartiality. Batson, thus, rested on a very different, much 

more expansive view of unconstitutional discrimination than Swain. This 

change in the Court’s understanding of equal protection was a critical part 

of the foundation for altering the burden of proof and authorizing claims 

based on strikes in a single case. If a prosecutor strikes all black jurors in a 

case involving a black defendant, it could be because of hostility toward 

blacks. On the other hand, the strikes could have been prompted by a fear 

that the jurors would favor the accused. 92 If the latter basis is constitutionally 

acceptable, then there is an insufficient likelihood that the strikes rested on 

an improper ground to justify the harm to the peremptory system caused by 

an inquiry. However, if both possible grounds for the strikes are invalid, 

then the likelihood that a prosecutor who struck every black juror in a 

particular case was acting unconstitutionally is markedly higher—high 

enough to disrupt the peremptory system. 

The Batson majority minimized its procedural change and refused to 

admit its substantive change. Both were dramatic departures from the prior 

interpretation of the relationship between the Fourteenth Amendment and 

peremptory challenges. 93 It was clear in 1986 that Batson was gamechanging. 

Just how extensive its effects on constitutional rights and jury 

selection processes would be was unknown. Batson left open a number of 

issues—the resolution of which would determine the nature and magnitude 

of its ultimate impact. 94 

92. Of course, each of the strikes could be for a reason not related to race. 

93. These differences between Swain and Batson seem even more remarkable in light of 

the sources of the two opinions. If one were to excise all identifying information and ask 

anyone knowledgeable about the proclivities of the Warren and Burger Courts which opinion 

was the handiwork of which Court, Batson would be attributed to the Warren Court and Swain 

to the Burger Court. Earl Warren’s tenure was marked by historical efforts to eliminate racial 

inequality. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954). Moreover, the Court 

announced expansive, often controversial, interpretations of Bill of Rights safeguards for those 

suspected or accused of crimes. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); Gideon v. 

Wainwright, 372 U.S. 335 (1963). During Warren Burger’s reign, the Justices were considerably 

less inclined to sustain race discrimination claims. See, e.g., Washington v. Davis, 426 U.S. 229 

(1976). In addition, the Court construed constitutional protections for suspects and defendants 

much more narrowly. See, e.g., Illinois v. Gates, 462 U.S. 213 (1983); Scott v. Illinois, 440 U.S. 

367 (1979). 

Nonetheless, the cautious, unprotective opinion in Swain is the Warren Court’s offspring. 

The majority perceived no equal protection problem even though no black had ever served on 

a jury in the county where Swain was tried and was willing to declare only that proof of 

government responsibility for the absence of black jurors might establish a Fourteenth 

Amendment violation. It is counterintuitive, to say the least, that a seven-Justice Burger Court 

majority issued the pro-equality, pro-defendant Batson opinion. Moreover, the Court 

dramatically revised the Fourteenth Amendment–peremptory challenge relationship in a case 

where the defendant did not even raise an equal protection claim. The Justices could have 

avoided the issue and decided only the Sixth Amendment fair-cross-section challenge raised by 

Batson. 

94. The next Part discusses the Court’s later answers to many of those questions.


One overarching question was whether the Court’s incursion was the 

first step in a process leading to the abolition of peremptory challenges. The 

contention that peremptories should be eliminated rests on the premise that 

conscious and unconscious race discrimination are realities that cannot be 

combated by mere regulation of peremptory challenges and that the only 

way to effectively control unconstitutional use is abrogation. 95 The realities 

of discrimination and the fact that Swain’s approach was ineffectual were 

among the reasons for the Batson revolution, which many scholars have 

deemed woefully inadequate. 96 Nonetheless, it seems virtually certain that 

the Court will adhere to Batson’s more modest prescription and refuse to 

perform the more radical surgery that some believe is essential. 97 

Other questions centered on the scope of Batson’s equal protection 

restrictions. Was Batson confined to race discrimination, as much of its 

language might suggest, 98 or might it also constrain other types of 

peremptory challenge discrimination? 99 Whether the Constitution forbade 

strikes based on sex, religion, age, sexual orientation, or socio-economic 

status, for example, was unknown. 100 

Another question was whether a defendant could object to the removal 

of members of another race. Batson’s prima facie case required a showing 

that the prosecutor removed jurors of the defendant’s race. 101 Moreover, 

Batson regulated peremptories exercised by the government. 102 The opinion 

contained no clear indications of whether there was any equal protection 

control over purposeful race discrimination by defendants. 

There were also “doctrinal” uncertainties in the wake of Batson. What 

was sufficient to establish an “inference” that would require the government 

to defend its peremptories? What showing by the government would suffice 

to rebut a prima facie case? The Court made clear that an explanation need 

not satisfy the “for cause” standard but did not specify the showing sufficient 

95. See Batson v. Kentucky, 476 U.S. 79, 103, 107–08 (1986) (Marshall, J., concurring); see 

also Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective, 64 U. 

CHI. L. REV. 809 (1997); Nancy S. Marder, Justice Stevens, the Peremptory Challenge, and the Jury, 74 

FORDHAM L. REV. 1683, 1715–17 (2006). 

96. See, e.g., Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory 

Challenges, and the Review of Jury Verdicts, 56 U. CHI. L. REV. 153 (1989); Kenneth J. Melilli, 

Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 NOTRE DAME 

L. REV. 447, 505 (1996); Melynda J. Price, Performing Discretion or Performing Discrimination: Race, 

Ritual, and Peremptory Challenges in Capital Jury Selection, 15 MICH. J. RACE & L. 57 (2009). 

97. Among the Justices, there has been only isolated support for abolition. See Rice v. 

Collins, 546 U.S. 333, 342–44 (2006) (Breyer, J., concurring); Miller-El v. Dretke, 545 U.S. 

231, 273 (2005) (Breyer, J., concurring); Batson, 476 U.S. at 107–08 (Marshall, J., concurring). 

98. See Batson, 476 U.S. at 82, 86–88, 89, 93, 96. 

99. See id. at 123–24 (Burger, C.J., dissenting). 

100. See Powers v. Ohio, 499 U.S. 400, 429–30 (1991) (Scalia, J., dissenting). 

101. Batson, 476 U.S. at 96. 

102. Id.


to satisfy the Fourteenth Amendment. 103 Finally, the Batson majority 

declined to “instruct” judges on the practical question of “how best to 

implement [its] holding.” 104 When a judge finds unconstitutional 

discrimination, she might “discharge the venire and select a new jury from a 

panel not previously associated with the case” or, alternatively, “disallow the 

discriminatory challenges and resume selection with the improperly 

challenged jurors reinstated on the venire.” 105 The Court refused to say 

whether either option was constitutionally required. 106 

II. TWENTY-FIVE YEARS OF BATSON PROGENY: DEFINING THE SCOPE, DETAILING 

THE OPERATION 

In the two and a half decades since Batson, the Court has provided a 

number of insights into the scope and operation of equal protection 

regulation of peremptory challenges. Some decisions significantly 

broadened Batson’s purview, while others have substantially limited Batson’s 

impact. A few have monitored fidelity to Batson, sending messages about 

extremes to be avoided by correcting outcomes that were either 

insufficiently or overly protective. 

A. EXPANDING BATSON’S REALM 

Just five years after Batson, the Court considered two significant issues 

about its ambit. In Powers v. Ohio, 107 the Court addressed whether a white 

defendant could obtain relief based on a claim that the prosecution 

discriminatorily struck black jurors. 108 In Edmonson v. Leesville Concrete Co., 

the Court considered whether parties in civil proceedings may remove jurors 

based on race. 109 The Court’s resolution of both issues broadened Batson’s 

reach and impact, setting a tone and establishing premises for further 

expansion. 

103. The Court demanded a race-neutral reason, but also suggested that the explanation 

had to be “legitimate” and “related to the particular case.” Id. at 97–98, 98 n.20 (quoting Tex. 

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981)). 

104. Id. at 99 n.24. 

105. Id. 

106. Each option had advantages and disadvantages. Striking a panel and starting anew is 

inefficient and costly. Moreover, prosecutors unhappy with the racial constituency of venires 

might deliberately violate Batson to secure new panels. On the other hand, reinstating struck 

jurors runs the risk that jurors who are upset by the effort to exclude them will retaliate. 

107. Powers v. Ohio, 499 U.S. 400 (1991). 

108. A year earlier, in Holland v. Illinois, 493 U.S. 474 (1990), a bare majority had rejected 

a white defendant’s Sixth Amendment challenge to the State’s peremptory removal of black 

jurors, concluding that the fair-cross-section requirement did not bar race-based peremptories. 

Id. at 478. It was clear, however, that a majority would sustain an equal protection challenge in 

such circumstances. See id. at 488 (Kennedy, J., concurring); id. at 492 (Marshall, J., dissenting). 

109. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).


In Powers, a white defendant on trial for murder and attempted murder 

objected to the government’s use of six of its nine peremptory strikes to 

remove black venirepersons. 110 The trial court overruled the objections, and 

he was convicted. 111 On appeal, seven Supreme Court Justices concluded 

“that a criminal defendant may object to race-based exclusions of jurors 

effected through peremptory challenges whether or not the defendant and 

the excluded juror share the same race.” 112 

Batson held that a defendant established a prima facie case by showing 

that the prosecutor removed members of his own race. Powers eliminated this 

constraint, concluding that a showing that strikes were used to remove 

members of any race sufficed. Batson had expressed concern not only with 

the impacts of discriminatory challenges on defendants but also with their 

effects on jurors and the community. 113 Strikes of jurors of a different race 

did not deprive the accused of equal protection, 114 but did infringe upon the 

jurors’ equal protection rights and the community’s interest in legitimate 

jury selection procedures. Consequently, the Court found it necessary to 

accord criminal defendants third-party standing to raise jurors’ rights—and 

to grant them relief for violations of those rights. 115 In Edmonson, a black 

construction worker sued a concrete company, claiming injuries from an 

employee’s negligent truck operation. 116 When the company peremptorily 

removed two black jurors, the plaintiff raised a Batson objection. 117 The 

lower courts refused to apply Batson to private civil litigants. 118 

Six Supreme Court Justices disagreed, concluding that Batson’s 

principles and safeguards extend to peremptories exercised by private 

parties in civil proceedings. 119 The majority piggybacked on the two central 

premises in Powers—that jurors struck on account of race suffer equal 

protection violations and that a party injured by unconstitutional strikes has 

110. Powers, 499 U.S. at 403. 

111. Id. 

112. Id. at 402. Justice Scalia objected that the majority’s extension of Batson went beyond 

Strauder and other equal protection precedents that involved exclusion of jurors of the 

defendant’s race. Id. at 417–18, 420, 422 (Scalia, J., dissenting). 

113. See id. at 406 (majority opinion). 

114. See id. at 404 (noting that a defendant suffers an equal protection deprivation when 

“members of his or her race have been excluded” from the jury). 

115. See id. at 411–15. A defendant suffered “cognizable injury” when a juror was excluded 

on account of race. Id. at 411. According to the Powers majority, race could not serve as “a proxy 

for . . . bias or competence” and had no relationship to juror fitness. Id. at 410. Stereotypebased 

strikes violated equal protection even if “members of all races” were struck on the basis of 

assumptions rooted solely in race, because “racial classifications” are impermissible and “do not 

become legitimate” because all races “suffer them” equally. Id. 

116. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991). 

117. Id. at 616–17. 

118. Id. at 617. 

119. Id. at 630.


standing to assert jurors’ rights. 120 The majority had no doubt that the harm 

to jurors in civil proceedings was as great as in criminal cases and believed 

that third-party standing to assert jurors’ rights was equally justified in civil 

suits. 121 Because only governmental conduct can violate constitutional rights, 

however, the pivotal question in Edmonson was whether a private party’s 

peremptories constituted “state action.” 122 The majority found state action 

because the party is exercising “a right or privilege having its source in state 

authority,” 123 and because “a private litigant in all fairness must be deemed a 

government actor in the use of peremptory challenges.” 124 

Batson and Edmonson meant that prosecutors, civil plaintiffs, and civil 

defendants could not strike jurors on account of race or race-based 

assumptions. Whether criminal defendants were also constrained remained 

an open question. The Court confronted that issue just one year later in 

Georgia v. McCollum. 125 

In McCollum, white defendants were charged with aggravated assault 

and simple battery against black victims. 126 The government sought a pretrial 

ruling prohibiting the defendants “from exercising peremptory challenges 

in a racially discriminatory manner.” 127 The lower courts held that Batson did 

not apply to defense peremptories. 128 Seven Justices disagreed, concluding 

that Batson’s equal protection restrictions govern defendants’ peremptory 

challenges. 129 

At the outset, Justice Blackmun highlighted “four questions” that 

required answers: whether a defendant’s race-based peremptories inflicted 

120. See id. at 618 (explaining these two underpinnings of Powers). 

121. Id. at 619. 

122. Id. at 619–20. 

123. Id. at 620–21. 

124. Id. at 621. Edmonson also emphasized the unacceptability of “the automatic invocation 

of race stereotypes.” Id. at 630. Race-based generalizations that “cause injury to the excused 

juror[s]” cannot be justified by either “open hostility or . . . some hidden and unarticulated 

fear.” Id. at 631. If parties believe that jurors have “biases or instincts” that might influence their 

judgment, they should explore the issue “in a rational way that consists with respect for the 

dignity of persons, without the use of classifications based on ancestry or skin color.” Id. 

125. Georgia v. McCollum, 505 U.S. 42 (1992). 

126. Id. at 44. 

127. Id. at 44–45. The defense’s twenty peremptory challenges were sufficient to enable the 

exclusion of all black jurors. Id. at 45. 

128. Id. at 45. 

129. Id. at 59. Only six Justices joined the majority opinion, as Justice Thomas concurred 

only in the judgment. See id. at 60 (Thomas, J., concurring in the judgment). Moreover, two 

members of the majority agreed with the holding only because they believed that Edmonson 

dictated an extension of Batson to criminal defendants. See id. at 59–60 (Rehnquist, C.J., 

concurring); id. at 60 (Thomas, J., concurring in the judgment). Both, however, expressed 

disagreement with Edmonson’s extension of Batson. Id. at 59–60 (Rehnquist, C.J., concurring); 

id. at 60 (Thomas, J., concurring in the judgment).


Batson harms; whether defense peremptories constituted state action; 

whether prosecutors had standing to challenge defense peremptories; and 

whether defendants’ “constitutional rights . . . preclude[d] the extension” of 

Batson. 130 He concluded that a defendant’s racially discriminatory strikes 

cause the same injuries to jurors and the community. 131 The Court 

acknowledged the adversarial relationship between a defendant and the 

state and the fact that an accused generally acts to serve private purposes, 

but still concluded that the exercise of peremptory challenges to aid in jury 

selection constituted state action. 132 Moreover, it held that the reasoning of 

Powers and Edmonson applied with equal, if not greater, force, justifying a 

decision to accord prosecutors third-party “standing to assert the excluded 

jurors’ rights.” 133 

Most significantly, the Court rejected the contention that “the interests 

served by Batson must give way to the rights of a criminal defendant.” 134 

Neither the fair-trial interests served by peremptory challenges nor the 

“Sixth Amendment right[s] to the effective assistance of counsel” and to “an 

impartial jury” required that defendants be free to remove jurors based on 

their race. 135 Although defendants have the right to keep jurors with bias or 

animus from sitting in judgment, 136 the Fourteenth Amendment does not 

permit them to further this interest in impartiality by “discriminat[ing] 

invidiously against jurors on account of race.” 137 Consequently, race-based 

assumptions and racial stereotyping could not support defense challenges. 138 

The majority believed that the bar to discriminatory challenges would not 

significantly impair an accused’s interests in a fair trial or the legitimate 

exercise of fundamental Sixth Amendment rights. 139 Moreover, the higher 

interest in preventing equal protection violations trumped any risk to a 

defendant’s rights. 140 

130. See id. at 48 (majority opinion). 

131. Id. at 48–50. 

132. Id. at 50–55. According to McCollum, the state-action determination “depends on the 

nature and context of the function [a defense attorney] is performing.” Id. at 54. “The exercise 

of a peremptory challenge differs significantly from other actions taken in support of a 

defendant’s defense” because “a criminal defendant is wielding the power to choose a 

quintessential governmental body—indeed, the institution of government on which our judicial 

system depends.” Id. 

133. Id. at 56. 

134. Id. at 57. 

135. Id. at 57–58. 

136. Id. at 58. 

137. Id. at 59. 

138. Id. 

139. See id. at 58. 

140. Id. at 57.


The last expansion of Batson’s reach occurred in J.E.B. v. Alabama, 141 

eight years after Batson. The issue was “whether the Equal Protection Clause 

forbids intentional discrimination on the basis of gender” in the exercise of 

peremptory challenges. 142 J.E.B. involved a state’s claim for paternity and 

child support on behalf of a minor’s mother. 143 The defendant objected to 

the State’s strikes of male jurors. 144 Six Justices disagreed with the lower 

courts’ rulings that Batson did not apply to gender-based strikes. 145 The 

majority concluded that because “gender, like race, is an unconstitutional 

proxy for juror competence and impartiality,” the Fourteenth Amendment 

forbids striking jurors based on gender or assumptions rooted in gender. 146 

The majority documented the long history of wholesale exclusion of 

women from jury service, a history that lasted well into the twentieth century 

and long after Strauder declared the exclusion of blacks unconstitutional. 147 

Precedent prescribed heightened equal protection scrutiny of gender-based 

classifications because of the danger of “‘archaic and overbroad’ 

generalizations about gender” and “outdated misconceptions” about 

women’s roles. 148 Rejecting the contention that sex discrimination had never 

been as serious as race discrimination, the Court declared that “the 

similarities between the experiences of racial minorities and women” were 

much greater than the differences. 149 

This history and the scrutiny afforded gender-based classifications 

meant that the sole issue was whether gender discrimination in jury 

selection “substantially furthers the . . . legitimate interest in achieving a fair 

and impartial trial.” 150 More specifically, the Court addressed “whether 

peremptory challenges based on gender stereotypes” substantially assist the 

“effort to secure a fair and impartial jury.” 151 The State’s contention that 

men could be “more sympathetic and receptive to” a paternity suit 

defendant was not “an exceptionally persuasive justification” but, instead, 

was a constitutionally forbidden stereotype. 152 It was “reminiscent of the 

141. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). 

142. Id. at 129. 

143. Id. 

144. Id. 

145. Id. 

146. Id. 

147. Id. at 131. 

148. Id. at 135 (quoting Schlesinger v. Ballard, 419 U.S. 498, 506–07 (1975); Craig v. 

Boren, 429 U.S. 190, 198–99 (1976)) (internal quotation marks omitted from second 

quotation). 

149. Id. 

150. Id. at 136–37. 

151. Id. at 137. 

152. Id. at 137–38.


arguments” supporting the prohibition of women jurors. 153 Moreover, the 

State had furnished “virtually no support for the conclusion that gender 

alone” accurately predicts juror attitudes and was wrong “to assume that 

gross generalizations” rooted in gender were any more permissible than 

those grounded in race. 154 Consequently, every person had a right against 

summary exclusion from jury service “because of discriminatory and 

stereotypical presumptions that reflect and reinforce patterns of historical 

discrimination.” 155 

J.E.B. addressed the border of Batson’s territory, indicating that few, if 

any, other types of discrimination were regulated. While neither race nor 

gender may “serve as a proxy for bias,” a party may peremptorily remove 

“any group or class of individuals normally subject to ‘rational basis’ 

review.” 156 An equal protection challenge is possible only when peremptories 

target groups accorded higher-than-rational-basis equal protection 

scrutiny. 157 

In sum, in four significant decisions during Batson’s first decade, the 

Court expanded its reach. Defendants may raise claims based on the 

removal of jurors of a different race, neither civil parties nor criminal 

defendants may strike jurors based on race, and parties may not strike jurors 

based on gender. Having broadened its realm substantially, the Court then 

announced that the era of expansion was nearing—or was at—an end. 

B. REFINING BATSON’S DOCTRINE 

A few post-Batson decisions have refined the doctrinal framework 

prescribed for evaluating equal protection claims. As discussed above, Batson 

established three steps. First, the opponent of peremptory challenges must 

establish a prima facie case of purposeful discrimination. If a sufficient 

showing is made, step two requires the party exercising the contested 

153. Id. at 138. 

154. Id. at 138–40. 

155. Id. at 141–42. The Court noted that gender-based strikes inflict the same sorts of 

harms that motivated Batson and “ratify and reinforce prejudicial views of the relative abilities of 

men and women.” Id. at 140. 

156. Id. at 143. 

157. In general, the only other classifications that currently qualify for higher equal 

protection scrutiny are religion, see Larson v. Valente, 456 U.S. 228, 246 (1982); national 

origin, see Oyama v. California, 332 U.S. 633, 646 (1948); alienage, see Graham v. Richardson, 

403 U.S. 365, 376 (1971); and illegitimacy, see Clark v. Jeter, 486 U.S. 456, 465 (1988). In 

light of the unique histories of race and sex discrimination in jury selection, the majority 

suggested that Batson’s framework might apply only to strikes based on “race or gender.” See 

J.E.B., 511 U.S. at 142 n.14 (stating that “peremptory challenges . . . on the basis of group 

characteristics other than race or gender . . . do not reinforce the same stereotypes about the 

group’s competence or predispositions that have been used to prevent them from voting, 

participating on juries, pursuing their chosen professions, or otherwise contributing to civic 

life”).


challenges to rebut the inference of discrimination with an adequate 

explanation. Assuming rebuttal, in the crucial third step a judge must decide 

whether the objector carried the burden of proving intentional 

discrimination on race or gender grounds. 

The most significant doctrinal developments clarified the explanations 

that are sufficient to satisfy the rebuttal demand. Hernandez v. New York 

involved a Hispanic defendant’s objection to the prosecution’s strikes of 

Hispanic jurors. 158 The prosecutor explained that he struck bilingual jurors 

because of concerns that they might not be able to follow the official 

interpreter’s translation of Spanish testimony and that “they would have an 

undue impact upon the jury.” 159 The lower courts deemed the explanation 

adequate. 160 

On review, the Supreme Court focused on Batson’s demand that the 

proponent of peremptory strikes “articulate a race-neutral explanation for 

striking the jurors in question,” concluding that reasons lack “race 

neutrality” if, assuming them true, the “challenges violate the Equal 

Protection Clause as a matter of law.” 161 Because discriminatory intent is 

necessary, a rebuttal reason is not unacceptable merely because it has a 

“racially disproportionate impact.” 162 At step two of the Batson “inquiry,” “the 

issue is . . . facial validity,” and an explanation “based on something other 

than the race of the juror” is a facially valid rebuttal. 163 

In Hernandez, the Court found the prosecutor’s explanation for striking 

Hispanic jurors to be race-neutral. It did not reflect an “intention to exclude 

Latino or bilingual jurors” or “stereotypical assumptions about Latinos or 

bilinguals.” 164 Because it was rooted in concerns generated by the jurors’ 

responses during voir dire, the rebuttal demand was met. 165 

Because the prosecution furnished a race-neutral reason, step three 

obligated the trial judge to decide whether the accused carried his burden 

of proving discrimination. 166 At this stage, a judge may consider the 

disproportionate exclusionary impact upon a racial or ethnic group as an 

158. Hernandez v. New York, 500 U.S. 352, 356 (1991) (plurality opinion). 

159. Id. at 357 (internal quotation marks omitted). 

160. Id. at 355–58. 

161. Id. at 358–59. 

162. Id. at 359–60 (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 

U.S. 252, 264–65 (1977) (internal quotation marks omitted)); see also id. at 360 (stating that 

“[u]nless a discriminatory intent is inherent in the . . . explanation, the reason offered . . . [is] 

race neutral”). 

163. Id. at 360. Although the preceding excerpts are all from a plurality opinion joined by 

only four Justices, two additional Justices supported the principles reflected in this paragraph. 

See id. at 372–75 (O’Connor, J., concurring in the judgment). 

164. Id. at 361 (plurality opinion). 

165. Id. 

166. Id. at 363.


indication that the reason provided was “a pretext for racial 

discrimination.” 167 However, if a trial judge, taking into account “the 

demeanor of the attorney who exercise[d] the challenge,” believes the “raceneutral 

explanation” offered, that “finding of fact” is entitled to “great 

deference on appeal.” 168 Reversal is appropriate only if the “finding on the 

issue of discriminatory intent . . . was clearly erroneous.” 169 In Hernandez, the 

judge did not commit clear error. 170 

Hernandez created some ambiguity about the meaning of “race neutral.” 

The plurality opinion declined to decide how broadly “the concept of race 

should be defined.” 171 Justice Kennedy did suggest that some reasons could 

be so associated with race that they “should be treated as . . . surrogate[s] for 

race under an equal protection analysis.” 172 Whether such surrogates exist 

remains unresolved. 

Four years later, Purkett v. Elem clarified a point implicit in Hernandez. 173 

The defendant challenged a prosecutor’s strikes of two black men during 

jury selection for his robbery trial. 174 The prosecutor explained that he 

struck the jurors based on hair length, facial hair, and the fact that one of 

them had a shotgun pointed at him during a robbery. 175 The state courts 

rejected the defendant’s objection, 176 but in a subsequent habeas corpus 

proceeding, the Eighth Circuit concluded that Batson’s step two required a 

plausible explanation of how reasons that are facially irrelevant to a juror’s 

ability to serve in a case might affect the juror’s performance. 177 The court 

deemed the hair-length and facial-hair reasons “pretextual” and found clear 

167. Id. 

168. Id. at 364–65. 

169. Id. at 369. 

170. Id. at 369–70. 

171. Id. at 371. Whether Spanish-speaking ability was race-neutral did not have to be 

decided because the prosecutor did not strike jurors on that ground. See id. at 360, 371. 

172. Id. at 371 (“It may well be, for certain ethnic groups and in some communities, that 

proficiency in a particular language, like skin color, should be treated as a surrogate for 

race . . . .”). Justices O’Connor and Scalia would have foreclosed the possibility of “surrogates” 

for race. In their view, the only reason that cannot rebut a prima facie case is race. Batson “does 

not require that the justification be unrelated to race” but “only that the . . . reason for striking 

a juror not be the juror’s race.” Id. at 375 (O’Connor, J., concurring in the judgment). It seems 

likely that the three dissenters would have agreed that some reasons might be disqualified as 

“surrogates” for race. See id. at 375 (Blackmun, J., dissenting); id. at 375–79 (Stevens, J., 

dissenting). 

173. Purkett v. Elem, 514 U.S. 765 (1995) (per curiam). 

174. Id. at 766. 

175. Id. 

176. Id. 

177. Elem v. Purkett, 25 F.3d 679, 683 (8th Cir. 1994), rev’d, 514 U.S. 765 (1995).


error in the state trial court’s determination that the strikes based on those 

reasons did not constitute “intentional[] discriminat[ion].” 178 

The Supreme Court found fault with the appellate court’s analysis 

because the step-two inquiry requires only “a race-neutral explanation . . .[,] 

not . . . an explanation that is persuasive, or even plausible.” 179 The facialvalidity 

requirement is satisfied by a race-neutral reason, and a reason is 

race-neutral “[u]nless a discriminatory intent is inherent in the . . . 

explanation.” 180 It is wrong to require that a party furnish a justification that 

is “not just neutral but also at least minimally persuasive.” 181 Because 

persuasiveness and plausibility are irrelevant at the second step, even “a silly 

or superstitious reason” suffices. 182 It is only at the third step—when a judge 

determines the real reason for a peremptory challenge—that such 

considerations come into play. 183 

The Batson Court had stated that the rebuttal step required “legitimate 

reasons” that were “related to the particular case to be tried.” 184 According 

to Purkett, these statements did not require more than race neutrality and 

were intended to preclude mere denials of “discriminatory motive” or 

simple affirmations of “good faith.” 185 Thus, it is constitutional error to 

demand that a justification be logical or have substance or to require a party 

to articulate a rational connection to the trial. A reason that is not racially 

discriminatory can rebut a prima facie case of intentional discrimination 

because a peremptory challenge exercised for such a reason is 

constitutional. Hernandez and Purkett limited Batson’s ability to combat 

discrimination by diminishing the potency of the rebuttal demand. In 

Johnson v. California, however, the Court rejected an interpretation of 

Batson’s prima-facie-case step that would have further weakened the 

protection it provides against discriminatory peremptories. 186 

In Johnson, a black defendant on trial for murder objected when the 

prosecutor used three of twelve peremptory challenges to remove all of the 

remaining black jurors. 187 At issue was whether Batson allows a jurisdiction to 

178. Id. at 684. 

179. Purkett, 514 U.S. at 767–68. 

180. Id. at 768 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality 

opinion)) (internal quotation marks omitted). 

181. Id. 

182. Id. 

183. Id. 

184. Batson v. Kentucky, 476 U.S. 79, 98 & n.20 (1986) (internal quotation marks 

omitted). 

185. Purkett, 514 U.S. at 769. An explanation is “legitimate” and satisfies step two if it “does 

not deny equal protection.” Id. (internal quotation marks omitted). 

186. Johnson v. California, 545 U.S. 162 (2005). 

187. Id. at 164.


“require at step one” 188 a showing “that it is more likely than not” that the 

contested peremptory challenges were discriminatory. 189 An eight-Justice 

majority concluded that the “‘more likely than not’ standard [was] at odds 

with the prima facie inquiry.” 190 According to the Court, a more likely than 

not standard at the prima-facie-case stage was inconsistent with Batson’s 

language, which did not demand that an objecting party “persuade the 

judge” but merely required “evidence sufficient to permit the trial judge to 

draw an inference that discrimination ha[d] occurred.” 191 Once an 

inference arose, Batson’s “burden-shifting framework” prescribed two 

additional steps that afforded “the trial judge . . . the benefit of all relevant 

circumstances . . . before deciding whether it was more likely than not that 

the challenge was improperly motivated.” 192 Batson observed that a party is 

entitled to relief if she establishes a prima facie case and the opponent does 

not offer a neutral explanation. 193 This did not mean that an objecting party 

had to satisfy the ultimate burden of persuasion on purposeful 

discrimination at step one. 194 While that burden always rests on the 

objecting party and never shifts to the party that exercised the peremptory 

challenges, the function of “[t]he first two Batson steps [is to] govern the 

production of evidence that allows the trial court to determine the 

persuasiveness of the . . . constitutional claim” in step three. 195 

The majority found additional support for this interpretation in 

“Batson’s purposes,” which include “the overriding interest in eradicating 

discrimination from our civic institutions.” 196 Batson’s doctrinal scheme was 

“designed to produce actual answers” when there is reason to suspect 

discrimination and to avoid “speculation” when a court can obtain “direct 

answer[s].” 197 The “three-step process” prescribed—including the demand 

for a mere “inference of discrimination” in step one—vindicates Batson’s 

188. Id. at 168. 

189. Id. (quoting People v. Johnson, 1 Cal. Rptr. 3d 1, 13 (2003), rev’d, 545 U.S. 162) 

(internal quotation marks omitted). California had held that to establish a prima facie case of 

discrimination, the party raising a Batson objection must show that it is “more likely than not” that 

the striking party had “discriminatory intent” and had concluded that the trial court had not 

erred in finding that the defendant had not met that standard. Id. at 167 (quoting Johnson, 1 

Cal. Rptr. 3d at 10) (internal quotation marks omitted). 

190. Id. at 173. 

191. Id. at 170. 

192. Id. 

193. See id. 

194. Id. 

195. Id. at 171. In the “unlikely” case that a party declines to proffer any reason, this 

“refusal to justify [a] strike in light of [a] court’s request . . . would provide additional support 

for the inference of discrimination raised by [the] . . . prima facie case.” Id. at 171 n.6. 

196. Id. at 171–72. 

197. Id. at 172.


important “public purposes” by avoiding “judicial speculation” about the 

real reasons for peremptory challenges and ensuring, instead, that judges 

will have the evidence they need “to resolve plausible claims of 


In sum, the Court’s conclusion that any neutral explanation can rebut 

an inference of discrimination surely limited Batson’s restrictive impact on 

peremptory challenges, making it easier for discriminators to conceal their 

intent and effect their unconstitutional ends. The rejection of the 

contention that a rebuttal reason must be plausible or persuasive reduced 

the chances that the objecting party would prevail as a matter of law in step 

two. In contrast, the conclusion that an objecting party need not prove his 

case at the initial stage cuts in the other direction, increasing the likelihood 

that the motives for peremptory challenges will be subjected to 

constitutional scrutiny. The rejection of the more likely than not standard 

reduced the chances that a striking party would prevail as a matter of law in 

step one. Together, these interpretations of Batson’s first two doctrinal steps 

militate in favor of and promote resolutions of discrimination claims in step 

three on the basis of a complete record of the evidence bearing on the 

central issue—the actual intent of the party who struck jurors. 199 

C. MONITORING BATSON’S IMPLEMENTATION 

The opinions discussed in this final subsection have nothing to do with 

Batson’s scope or the meaning of its three-step doctrinal framework. Instead, 

the decisions center on the third step of that framework, announcing factspecific 

rulings that furnish few legal insights. These opinions do illustrate 

the Court’s willingness to monitor lower court implementation of Batson. 

The Court has corrected extreme decisions that fail to honor its protective 

spirit and has reversed appellate rulings that exceed the authority to review 

trial court resolutions of Batson claims. As a practical matter, the Justices can 

monitor only a tiny fraction of the Batson objections decided by lower courts. 

The opinions discussed here seem to send two messages to judges charged 

with enforcing Batson’s regulatory scheme: (1) when evidence of 

discrimination is clear, do not hesitate to reject putative justifications and 

198. Id. at 172–73. 

199. In Thaler v. Haynes, the Court rejected the claim that precedent supported a rule that 

in step three a trial judge “must reject a demeanor-based explanation for [a] challenge unless 

the judge personally observed and recalls the aspect of the prospective juror’s demeanor on 

which the explanation is based.” 130 S. Ct. 1171, 1172 (2010) (per curiam). While the Justices 

did not state that they would not endorse such a rule, Thaler provides no basis for believing that 

they would. It seems likely that step three’s objective is to authorize judges to accept or reject 

explanations for peremptory challenges based on the totality of relevant circumstances. The 

Justices are unlikely to impose rigid restrictions on the process of divining the actual intent 

behind the exercise of peremptories.


vindicate Batson claims; and (2) when a trial judge’s finding concerning 

intent is defensible, appellate deference is mandatory. 

Thomas Miller-El’s Batson claim reached the Supreme Court twice. 200 A 

prosecutor peremptorily struck ten of eleven black jurors in Miller-El’s 

capital murder trial. 201 After Texas courts rejected his Batson claim, the 

defendant filed a federal habeas corpus petition. 202 The district court also 

rejected his claim, and the Fifth Circuit denied the certificate necessary to 

appeal that ruling. 203 The sole question before the Supreme Court was 

whether the court of appeals should hear Miller-El’s case. 204 The governing 

statute provided that a certificate of appealability should be issued if a 

habeas petitioner “demonstrate[s] ‘a substantial showing of the denial of a 

constitutional right.’” 205 This standard is satisfied if reasonable appellate 

judges “could disagree” with a trial judge’s determination or could find that 

“the issues presented are adequate to deserve encouragement to proceed 

further.” 206 

Eight Justices easily concluded that the court of appeals should have 

issued a certificate of appealability. 207 They concluded that the court of 

appeals had applied “too demanding a standard” and, “more 

fundamental[ly],” had improperly addressed “the substance of an appeal” 

over which it had no jurisdiction. 208 With only appealability at issue, the 

question was whether the Batson claim was debatable, not whether it had 

merit. 209 

Because the government conceded that the accused had established a 

prima facie case and the defendant acknowledged that the state had met the 

rebuttal requirement with facially valid explanations, the issue was “the 

persuasiveness” of those explanations. 210 The Court recognized that a trial 

judge’s determination of intent was a purely factual finding, entitled to 

“significant deference” on appeal and to even more deference in habeas 

proceedings. 211 Deference, however, did “not . . . preclude relief.” 212 When 

200. See Miller-El v. Dretke (Miller-El II), 545 U.S. 231 (2005); Miller-El v. Cockrell (Miller-El 

I), 537 U.S. 322 (2003). 

201. Miller-El I, 537 U.S. at 326. 

202. Id. at 329. The accused had been convicted and sentenced to death. Id. at 328. 

203. Id. at 326–27. 

204. See id. at 335. 

205. Id. at 327 (quoting 28 U.S.C. § 2253(c)(2) (2006)). 

206. Id.; see also id. at 336 (stating that this “threshold inquiry” is whether the “resolution” 

of “petitioner’s constitutional claims . . . was debatable amongst jurists of reason”). 

207. Id. at 341. 

208. Id. at 341–42. 

209. Id. at 336, 342. 

210. Id. at 338–39. 

211. Id. at 339–40. 

212. Id. at 340.


deferential standards of review are satisfied, appellate courts are justified in 

overturning fact findings. Several facts persuaded the Justices that, in Miller- 

El, the intent-to-discriminate issue was debatable. “[S]tatistical evidence” 

showed that the prosecutor used peremptories “to exclude 91% of the 

eligible African-American venire members”; 213 the prosecutor treated black 

and white jurors disparately, striking blacks for supposedly race-neutral 

reasons equally applicable to white jurors and questioning them differently 

during voir dire; 214 the prosecution used a “jury shuffle” mechanism to 

decrease the odds of black jurors reaching the jury; 215 and there was potent 

“historical evidence of racial discrimination” by the prosecutor’s office. 216 

The Fifth Circuit considered Miller-El’s appeal, as required on remand, 

“reject[ing his] Batson claim on the merits.” 217 The Supreme Court again 

granted review, and a six-Justice majority again reversed the appellate court, 

concluding that “Miller-El [was] entitled to prevail.” 218 The majority stressed 

that a “facially neutral reason” that is “false” does not “suffice[]” in step 

three and that “sometimes” a judge must “look[] beyond the case at hand” 

and consider “all relevant circumstances” to assess a reason’s truthfulness. 219 

In Miller-El, the same facts that dictated appealability revealed the falsity of 

the reasons offered for removing two black jurors and proved purposeful 

discrimination. The “numbers” were “remarkable”—only one of twenty 

black venirepersons served; ten were struck after nine had been 

disqualified. 220 A comparison of struck black venirepersons to whites 

“allowed to serve” provided even more powerful evidence because the 

putative reasons for barring some blacks “appeared equally on point as to 

some white jurors who served.” 221 This suggested “that race was significant in 

determining who was challenged.” 222 In addition, the “broader patterns of 

practice during the jury selection”—the “shuffling of the venire panel” and 

the differential inquiries of black and white jurors about the “death penalty” 

and about “minimum acceptable sentences”—“indicate[d] decisions 

213. Id. at 342. 

214. Id. at 342–45. 

215. Id. at 346. 

216. Id. at 346–47. There was proof that “the culture of the District Attorney’s Office in the 

past was suffused with bias against African-Americans in jury selection.” Id. at 347. 

217. Miller-El v. Dretke, 545 U.S. 231, 237 (2005). 

218. Id. at 235, 237. 

219. Id. at 240 (quoting Batson v. Kentucky, 476 U.S. 79, 96–97 (1986)) (internal 

quotation marks omitted from last quotation). 

220. Id. at 240–41. 

221. Id. at 241 (citing Miller-El I, 537 U.S. 322). The demonstration that some of the “raceneutral 

reasons” proffered to explain strikes were pretextual provided further evidence of “the 

very discrimination the explanations were meant to deny.” Id. at 265. 

222. Id. at 252.


probably based on race.” 223 “Finally, . . . the general policy of the . . . District 

Attorney’s Office to exclude black venire members from juries at the time 

Miller-El’s jury was selected” confirmed “the appearance of 


A step-three determination of intent required consideration of all the 

evidence “cumulatively,” and the “direction” of the cumulative evidence in 

Miller-El was “too powerful to conclude anything but discrimination.” 225 For 

two excluded jurors, it was unrealistic “to deny” that they were struck 

“because they were black.” 226 The state court’s contrary conclusion was 

clearly and convincingly “wrong” and “unreasonable as well as erroneous.” 227 

In 2008, the Roberts Court reached a similar conclusion in another 

capital case. In Snyder v. Louisiana, the government “eliminated” all five 

black jurors who remained in the pool after challenges for cause. 228 With 

respect to one strike, seven Justices found “clear error” in the state court 

finding that the prosecutor lacked discriminatory intent. 229 

According to the Court, the trial judge’s “pivotal role” in Batson’s third 

step requires evaluation of the striking attorney’s “credibility,” and the 

attorney’s “demeanor” is often “the best evidence [of discriminatory 

intent].” 230 Moreover, because “race-neutral reasons . . . often” refer to “a 

juror’s demeanor,” a judge’s “firsthand observations” of jurors can be very 

important in deciding whether an explanation accurately describes the 

juror’s behavior. 231 The deference to a judge’s step-three determination 

reflected in the “clearly erroneous” standard of review is appropriate 

because credibility and demeanor assessments “lie ‘peculiarly within a trial 

judge’s province.’” 232 

In Snyder, the prosecution offered two reasons for striking one black 

juror—that he appeared nervous and that he reported a student-teaching 

obligation. 233 The prosecution argued that the latter could make the juror 

desire a quick end to the trial, prompting him to return a lesser verdict to 

223. Id. at 253. For detailed discussion of these matters, see id. at 253–63. 

224. Id. at 253. For further explanation of the policy of systematic exclusion, see id. at 263– 

64. 

225. Id. at 265. 

226. Id. at 266. 

227. Id. 

228. Snyder v. Louisiana, 552 U.S. 472, 475–76 (2008). 

229. Id. at 474. The defendant contested two of the strikes, but the Court found it necessary 

to consider only one of the two. Id. at 477–78. As in Miller-El, the accused had been convicted 

and sentenced to death. Id. at 476. 

230. Id. at 477 (quoting Hernandez v. New York, 500 U.S. 352, 365 (1991)) (alteration in 

original) (internal quotation marks omitted). 

231. Id. 

232. Id. (quoting Hernandez, 500 U.S. at 365). 

233. Id. at 478.


avoid the need for a penalty phase. 234 Because there were “two explanations 

for the strike” and the judge “made [no] determination concerning [the 

juror’s] demeanor,” the Justices refused to “presume” that he “credited the 

prosecutor’s assertion that [the juror] was nervous.” 235 

The majority then concluded that the trial judge’s determination that 

the juror’s “student-teaching obligation” was the actual reason for striking 

him was clear error. 236 Fifty venire members had expressed concern about 

“obligations.” 237 In addition, the prosecutor’s supposed apprehension about 

the struck juror’s inclination to shorten the proceedings with a lesser verdict 

was “highly speculative.” 238 “The implausibility of this explanation [was] 

reinforced by the prosecutor’s acceptance of white jurors” with “conflicting 

obligations that” were equally “serious.” 239 As in Miller-El, “[t]he 

prosecution’s . . . pretextual explanation naturally [gave] rise to an 

inference of discriminatory intent.” 240 It indicated an effort to conceal the 

real reason for removing the juror—his race. 

A step-three determination of intent requires the judge to consider “all 

of the circumstances that bear upon the issue of racial animosity.” 241 The 

totality of relevant facts in Snyder made it clearly erroneous for the trial judge 

not to find intentional race discrimination. 242 Together, Snyder and Miller-El 

warn trial courts not to reflexively accept neutral rebuttal reasons, instruct 

them to conscientiously review all the pertinent evidence, and direct them to 

sustain Batson claims when that evidence shows a proffered explanation to 

be implausible, false, and pretextual. They remind reviewing courts that 

deference to trial court findings is not boundless and that failures to find 

discrimination when the evidence is clear can and must be overturned. 243 

Miller-El and Snyder corrected rulings that were insufficiently protective 

of Batson’s values. The final two Batson progeny reversed appellate rulings 

that infringed upon the fact-finding prerogatives of trial judges. Neither 

involved a capital offense, and both reached the Supreme Court after 

234. Id. 

235. Id. at 479. 

236. Id. 

237. Id. at 480. 

238. Id. at 482. 

239. Id. at 483. 

240. Id. at 485. 

241. Id. at 478. 

242. The Snyder Court reserved a “causation” question—whether the proponent of a strike 

who acted with discriminatory intent may nevertheless prevail by showing that if she had not 

had a forbidden purpose she would have struck the juror for a valid reason. Id. at 485–86. 

243. Because these two cases involved death sentences, trial and appellate courts might 

conclude that they need be vigilant only in capital cases. Nothing in the opinions, however, 

suggests that the analysis should be different in noncapital trials. See id. passim; Miller-El v. 

Dretke, 545 U.S. 231 (2005).


appellate judges had reviewed district court denials of habeas corpus 

petitions based on Batson claims. In both, the Supreme Court found that the 

Ninth Circuit erred in failing to accord state courts the deference owed to 

step-three fact determinations. 

In Rice v. Collins, the defendant challenged the strike of a single black 

juror. 244 The prosecution explained that the juror had “rolled her eyes,” that 

she “was young and might be too tolerant of a drug crime,” and that she was 

“single and lacked ties to the community.” 245 The trial judge ruled that the 

juror’s youthfulness was a sufficient explanation. 246 The state appellate court 

affirmed, finding both the “youth” and “demeanor” reasons to be legitimate 

and supportive of the strike. 247 After a federal district judge denied habeas 

relief, the Ninth Circuit reversed. 248 

On appeal, all nine Justices tersely concluded that the Ninth Circuit had 

“improperly substituted its evaluation of the record for that of the state trial 

court.” 249 The habeas statute allowed relief only if the state court “made an 

unreasonable factual determination.” 250 Consequently, the issue was whether 

the trial court’s “credibility determination”—i.e., the decision “to accept the 

prosecutor’s explanation” that it had struck the juror due to “her youth and 

her demeanor”—”was unreasonable.” 251 The Court concluded that it was 

not. The juror’s indication that she believed the crime charged should be 

illegal and her affirmation of impartiality did not mean that the 

government’s concern that she might be “too tolerant of the crime” was “a 

pretext.” 252 There may have been “reason to question the prosecutor’s 

credibility,” but because “[r]easonable minds . . . might disagree” on that 

issue, it was “permissible” for the judge to accept the prosecutor’s 

explanation and reject the Batson claim. 253 

Felkner v. Jackson proved even easier. 254 The defendant objected to the 

removal of two black jurors. 255 According to the prosecutor, he struck one 

because he asserted that he had frequently been stopped by police based on 

“his race and age” and might have “animosity.” 256 He struck the other 

244. Rice v. Collins, 546 U.S. 333, 336 (2006). 

245. Id. The prosecutor had also referred to the juror’s gender and “[t]he trial court, 

correctly, disallowed any reliance on that ground.” Id. 

246. Id. at 336–37. 

247. Id. at 337. 

248. Id. 

249. Id. at 337–38. 

250. Id. at 339. 

251. Id. 

252. Id. at 341. 

253. Id. at 341–42. 

254. Felkner v. Jackson, 131 S. Ct. 1305 (2011) (per curiam). 

255. Id. at 1306. 

256. Id. (internal quotation marks omitted from second quotation).


because of her “degree in social work” and her internship “at the county 

jail.” 257 The trial court sustained the strikes. 258 The defendant appealed, 

relying on “a comparative juror analysis” and claiming that differential 

treatment proved that the “explanations were pretextual.” 259 The state 

appellate court affirmed, explaining how another juror’s experience with 

law enforcement was “not comparable” to that of the struck juror and 

opining that the differential questioning could be explained by the struck 

juror’s “social services background,” which was distinguishable from other 

jurors’ backgrounds in other disciplines. 260 

A federal district judge denied habeas relief because the State’s stepthree 

fact determination was not unreasonable. 261 The Ninth Circuit 

supported its decision to reverse with one sentence, stating that “[t]he 

prosecutor’s proffered race-neutral bases . . . were not sufficient to counter 

the evidence of purposeful discrimination in light of the fact that two out of 

three prospective African–American jurors were stricken, and the record 

reflected different treatment of comparably situated jurors.” 262 A unanimous 

Supreme Court deemed the reversal “as inexplicable as it is unexplained,” 

concluding that the court of appeals had not accorded the state court the 

deference required by habeas statutes. 263 The state appellate court’s 

“decision” to uphold the trial court’s credibility determination “was plainly 

not unreasonable,” and “[t]here was simply no basis for the [court of 

appeals] to reach the opposite conclusion.” 264 

Although both Collins and Felkner were habeas petitions that demanded 

even greater deference, the Court surely would have reached the same 

conclusion if it had been reviewing reversals on direct appeals. Appellate 

determinations that trial judges had clearly erred in accepting prosecutors’ 

explanations would have been indefensible. These two opinions admonish 

appellate courts not to intervene excessively in determinations of 

discriminatory intent. In most cases, credibility determinations should be 

sustained, not second-guessed. Miller-El and Snyder were exceptional 

257. Id. 

258. Id. 

259. Id. He argued that “a non-black juror . . . [who] had negative experiences with law 

enforcement” was not struck and that the prosecutor had “asked follow-up questions of several 

white jurors when . . . concerned about their educational backgrounds, but struck [the black 

juror] without asking her any questions about her degree in social work.” Id. 

260. Id. at 1307 (internal quotation marks omitted from first quotation). Moreover, the 

prosecutor had “focused on [the struck juror’s] internship experience at the county jail.” Id. 

(internal quotation marks omitted). 

261. Id. 

262. Id. (quoting Felkner v. Jackson, 389 F. App’x 640, 641 (2010)) (internal quotation 

marks omitted). 

263. Id. 

264. Id.


situations requiring intervention. They were not the norm and were worlds 

apart from cases like Collins and Felkner. 

The Court issued Felkner, its most recent Batson decision, in March 

2011, just over a month before Batson’s twenty-fifth anniversary. During that 

quarter of a century, the Court has devoted considerable attention to 

Batson’s scope, expanding it substantially before indicating that there is 

little, if any, additional room for growth. The Court has also proclaimed 

fidelity to Batson’s three-step framework, rejecting an overly demanding 

standard for prima facie case assessments, minimizing the potency of the 

rebuttal demand, and focusing attention on the nature of the fact 

determination required by step three. In addition, the Court has 

emphasized that determinations of discriminatory purpose deserve great 

deference on appeal and in collateral challenges to convictions. It has 

punctuated the need for deference by unanimously reversing inappropriate 

appellate interventions. On the other hand, the Court’s interventions in 

extreme cases, where findings of no discriminatory purpose were 

irreconcilable with the evidence, made it clear that deference is not absolute 

and that such findings cannot stand when they are incompatible with 

Batson’s spirit and objectives. 

III. CONCLUSION 

Batson’s revolutionary reform of the relationship between peremptory 

challenges and the guarantee of equal protection was a milestone. The 

proclamation that discrimination in the courtroom is intolerable and the 

announcement that previously immune decisions to strike jurors are subject 

to Fourteenth Amendment scrutiny and regulation were symbolically and 

pragmatically significant. Developments during the years since Batson have 

sent mixed messages. The Court has expanded Batson’s reach while diluting 

the doctrinal demand that parties justify questionable decisions to exclude 

jurors. The decisions reflect a belief that trial judges are capable of 

identifying discriminatory exclusion of jurors and a trust (or perhaps a 

hope) that they are committed to preventing it. They instruct appellate 

courts not to tread on the generous discretion entrusted to trial judges but 

to correct clear failures to enforce Batson. 

This introductory Essay has described the pre-Batson landscape, 

documented Batson’s dramatic modifications, and chronicled the major 

events during Batson’s first twenty-five years. An array of insightful and 

provocative essays follows. The authors’ fascinating perspectives and 

reflections upon the landmark and its legacy are a most appropriate 

celebration of its silver anniversary.

Twenty-Five Years of Batson: An Introduction to ... - University of Iowa

Create successful ePaper yourself

Delete template?

Save as template?