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

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1410 IOWA LAW REVIEW [Vol. 97:1393 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of gender-based classifications because of the danger of “‘archaic and overbroad’ generalizations about gender” and “outdated misconceptions” about women’s roles. 148 Rejecting the contention that sex discrimination had never been as serious as race discrimination, the Court declared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.
2012] TWENTY-FIVE YEARS OF BATSON 1411 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”).
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