Ideological imbalance and the peremptory challenge.

Author:Revesz, Joshua
 
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Legal scholars, by and large, revile peremptory challenges. Allowing parties to unilaterally strike prospective jurors without explanation has been attacked as undemocratic, (1) as prone to manipulation, (2) as a potential First Amendment violation, (3) and-most often of all-as racist. (4) Judges (5) and even prosecutors (6) have spoken out against the procedure. And, although the Supreme Court sought in Batson v. Kentucky (7) to limit the problems of peremptory challenges by constraining parties' ability to strike jurors because of their race, (8) Batson's rule is decried as "almost surely a failure" (9) and an "enforcement nightmare." (10)

Studies suggest that, despite Batson and its subsequent cases, demographic profiling remains a principal strategy during voir dire. (11) Yet some of the same studies show that, on net, the resulting demographic composition of juries is similar to that of their venires. (12) As long as parties' race- and gender-based peremptory challenges can "cancel each other out," (13) the argument goes, those challenges will not produce significant demographic disparities. (14)

This Comment contributes to these debates by noting a different disparity that peremptory challenges engender. It argues that peremptory challenges produce an ideological skew in juries. Because ideology and demographics (particularly race and gender) are asymmetrically correlated in the United States, demographic-based peremptory challenges alter juries' ideological makeup. Specifically, because liberal jurors are easier to identify from demographic profiling than their conservative counterparts, the peremptory-challenge regime likely produces more conservative juries than would a system without those challenges. That bias disadvantages certain litigants, from tort plaintiffs to criminal defendants.

Part I of this Comment explores the intertwined roles of ideology and race in the jury-selection process. Part II formalizes this relationship, mapping a causal claim that peremptory challenges shift jury ideology rightward. It suggests that peremptory-challenge procedures produce juries that are considerably more conservative than a random sampling of Americans. This result reveals an additional axis of identity on which peremptory challenges discriminate, strengthening the case for curtailing or eliminating the practice.

  1. IDEOLOGY, RACE, AND BATSON

    Juror ideology matters. Studies show that juror ideology affects outcomes in both criminal (15) and civil (16) cases. Litigators agree: the American Association for Justice, formerly known as the Association of Trial Lawyers of America, provides strategies for handling "conservative" jurors; (17) self-described "jury consultants" advise lawyers to change their strategies depending on the ideological makeup of the jury. (18) Even courts, on occasion, acknowledge that ideology affects jury decision making. (19)

    Because juror ideology can play an important role in the disposition of a case, litigators consider juror ideology when strategizing over peremptory challenges. Lawyers use peremptory challenges to strike jurors "thought to be inclined against their interests." (20) Peremptory challenges, in theory, "assur[e] the selection of a qualified and unbiased jury" (21) by "eliminat[ing] extremes of partiality on both sides." (22) The Equal Protection Clause, however, constrains the use of the peremptory challenge. In Batson v. Kentucky, the Supreme Court barred the use of peremptory challenges to strike black jurors solely on the basis of their race. (23) Yet Batson allows prosecutors to strike black jurors by asserting that they are striking them not on the basis of race, but on the basis of their perceived ideological bent. In other words, nothing prevents attorneys from striking prospective jurors based on their perceived ideologies, and nothing meaningfully impairs attorneys' use of demographic stereotyping as a guide to jurors' ideologies.

    Post-Batson case law is full of examples confirming the importance of ideology to litigators during voir dire--and hinting that those attorneys' perceptions of prospective jurors' ideology are closely linked to those jurors' race and gender. In multiple cases, in response to a Batson challenge, parties have (generally successfully) defended their decision to strike minority and women jurors on the basis of perceived ideology. In a civil suit between a black plaintiff and white defendants, for example, the defendants explained their decision to strike an unemployed black woman on the grounds that, based on those characteristics alone, she would be "an unduly liberal juror." (24)

    A simple model of juror psychology--that jurors tend to favor litigants with similar demographics (25)--cannot fully explain such strikes. In one case, the defendant belonged to a different race than the juror the prosecution challenged; (26) in many cases, the challenged juror was a woman and the defendant was a man. (27) These cases show the difficulty of separating demographics from ideology in assessing peremptory challenges: in each instance, prosecutors struck jurors not because the jurors shared the defendants' characteristics, but rather because the prosecutors assumed-based largely on the jurors' appearance-that the strikes would produce an ideologically favorable jury.

    The Batson majority overlooked this phenomenon. Its logic rested on what Neil Gotanda calls "formal-race analysis," which emphasizes a shallow racial equality by presuming that "racial classifications are unconnected to social status or historical experience." (28) As Gotanda notes, Batson's argument that "[a] person's race simply 'is unrelated to his fitness as a juror'" (29) "invokes that unconnectedness of a juror's formal-race classification to any other personal attributes which might relate to jury duty." (30) But, in reality, race--and many other observable characteristics-are correlated with a range of experiences and attitudes. (31) As Frederick Schauer observed, Batson fails to prohibit "the use of race as a generalization ... where the generalization is statistically legitimate[.]" (32) Thus, Batson does not stand in the way of attorneys' use of race as a proxy for ideology.

    In the election-law context, an analogous difficulty has engendered the "party-race problem." Legislation and redistricting schemes that seek to weaken Democrats have deleterious effects on minority voters. (33) When minority plaintiffs--or the Department of Justice on behalf of minority voters-bring challenges under the Voting Rights Act, Republican legislatures respond that they sought to disadvantage Democrats, not minorities. (34) As long as election manipulation for partisan advantage is legal, it will be impossible to separate these claims. Similarly, as long as peremptory challenges for ideological advantage are permissible, it will be impossible to administer peremptory challenges in a racially neutral manner.

    The connection between race and ideology, therefore, poses twin dangers. First, ideology may serve as a pretext for racially motivated strikes. (35) Second, ideologically motivated strikes, legal under Batson, may nevertheless be based on demographic profiling. Part II explores the ramifications of this second point: it demonstrates that the use of demographic profiling to strike liberal jurors creates juries that are more conservative than the general population.

  2. PEREMPTORY CHALLENGES AND IDEOLOGICAL BIAS

    Independent from the argument that demographic profiling to discriminate by ideology is merely a pretext for race discrimination, demographic profiling for ideological discrimination poses additional threats to overall jury impartiality. Specifically, because ideology and demographics are asymmetrically correlated, the use of demographic profiling in peremptory challenges is likely to result in juries that are more ideologically conservative than the venire population. For this reason, litigants whose positions typically attract liberal support are hurt by the peremptory-challenge system.

    1. Stereotyping for Ideological Challenges

      Attorneys cannot try their cases during voir dire. They must therefore use heuristics--what then-justice Rehnquist called "seat-of-the-pants instincts" (36)--to assess prospective jurors' desirability. "Yet 'seat-of-the-pants instincts' may often be just another term for racial prejudice" (37): because attorneys have no concrete information on which to rely, they often turn to stereotyping.

      Indeed, evidence suggests that attorneys lodge peremptory challenges based on a small number of easily discernible characteristics. In voir dire, "questioning jurors is principally a matter of getting basic background information from which [attorneys] infer likely beliefs and attitudes relevant to the case being tried." (38) Stephen Adler observes that "the legal profession has perpetuated a vast, mostly secretive lore concerning what sorts of people make what sorts of jurors, and these...

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