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1398 IOWA LAW REVIEW [Vol. 97:1393 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.
2012] TWENTY-FIVE YEARS OF BATSON 1399 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.
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