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

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1404 IOWA LAW REVIEW [Vol. 97:1393 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.
2012] TWENTY-FIVE YEARS OF BATSON 1405 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.
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