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

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1406 IOWA LAW REVIEW [Vol. 97:1393 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).
2012] TWENTY-FIVE YEARS OF BATSON 1407 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.
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