Civilizing Batson

• Author: Nancy Leong
• Position: Assistant Professor, University of Denver Sturm College of Law
• Pages: 1561-1583

1561

Civilizing Batson

Nancy Leong

ABSTRACT: In the twenty-five years since Batson v. Kentucky, courts

have gradually narrowed its holding and limited its application.

Subsequent decisions have diminished the utility of Batson as a means of

challenging racially discriminatory peremptory strikes. This Essay examines

why the doctrine has evolved this way. Elsewhere I have explored the

influence of contextual variables—the available remedy, the facts that courts

encounter, and the procedural posture in which rights-making occurs—on

the ultimate scope of the substantive right that courts articulate. Batson

provides a particularly rich opportunity to consider these variables because

peremptory challenges are adjudicated in a highly idiosyncratic context: a

criminal defendant, appealing his conviction by a jury, seeks the strong

medicine of reversal for a harm that was perpetrated against a juror—not

against the defendant directly—and that may not even have affected the

outcome of the trial.

The idiosyncrasies of the context in which Batson is litigated lend

themselves to an intriguing inquiry: How might Batson doctrine have

evolved differently if peremptory challenges were also litigated by the jurors

who had been struck? I conclude that—were courts to adjudicate peremptory

challenges both in the context of claims by criminal defendants seeking

reversal and in the context of claims by struck jurors seeking money damages

or declaratory relief—the shape of the doctrine would provide a more

accurate appraisal of the harms flowing from the use of race in peremptory

challenges and a more robust mechanism for addressing those harms.

I

NTRODUCTION .................................................................................... 1563

I. CONTEXTUALIZING BATSON ................................................................. 1564

II. EXCLUDED JURORS AS BATSON LITIGANTS ........................................... 1569

A. BATSON CLAIMS AS CIVIL RIGHTS SUITS ......................................... 1569

 Assistant Professor, University of Denver Sturm College of Law. I am grateful to Jeffrey

Bellin, Alan Chen, Sam Kamin, Pam Karlan, and Justin Marceau for useful comments and

suggestions. I also appreciate the comments I received at the Io wa Law Review symposium,

Batson at Twenty-Five: Perspectives on the Landmark, Reflections on Its Legacy.

1562 IOWA LAW REVIEW [Vol. 97:1561

B. JURORS AS ENFORCERS .................................................................... 1572

III. IMPLEMENTING A CIVIL BATSON ........................................................... 1576

CONCLUSION ....................................................................................... 1583