Sex and the peremptory strike: an empirical analysis.

• Author: Hightower, Susan
• Position: Statistical Data Included - Case Note

INTRODUCTION

When the Supreme Court decided J.E.B. v. Alabama ex rel. T.B.(1) in 1994, extending equal protection in jury selection to gender, critics were quick to conclude that the Court had effectively killed off the venerable peremptory challenge. The peremptory had been ailing, some commentators believed, since the Court's decision eight years earlier in Batson v. Kentucky,(2) which for the first time limited a litigator's previously unfettered discretion to strike whomever she pleased, without explanation.

Building on the criticism of Batson, defenders of the traditional peremptory challenge needed to look no further than the Court's opinion in J.E.B. itself to find reason to worry. Although concurring with the 6-3 majority, Justice O'Connor noted that the decision was not "costless."(3) Justice Scalia's dissent went much further, warning that the decision would spawn a wave of collateral litigation attacking the use of peremptories, burdening the courts much more than Batson because every case could involve a gender-based claim while demographics should make race-based challenges less frequent.(4) Furthermore, Justice Scalia predicted that the Court would expand its holding in J.E.B. to numerous other categories of discrimination in jury selection.(5)

After the first five years of application by the courts, the fears about J.E.B.'s legacy appear to have been vastly overstated. A survey of decided cases revealed only twenty-three published cases throughout the entire U.S. federal and state court systems that were reversed as a result of J.E.B. violations. A total of twenty-seven cases were remanded for hearings based on a claim of gender discrimination during voir dire; among those, only two reported cases were reversed after the heating based on J.E.B.(6)

If attempts to comply with J.E.B. and prevent discrimination against women in jury service have thrown the court system into turmoil, it is not revealed in the case law. Indeed, it should be noted that Justice Blackmun's opinion in J.E.B. listed nine states that already had extended Batson to gender based on their own state constitutions, the U.S. Constitution, or both;(7) the Ninth Circuit also had done so, although three circuits had reached the contrary conclusion.(8) This made the change less sweeping than it might have been, though its impact has been disproportionate in states such as Alabama that had explicitly declined to extend Batson to gender before J.E.B.(9)

In this note, I will not trace the history of the peremptory strike or the Supreme Court's road to J.E.B.; nor will I analyze the Court's reasoning in the decision. Many commentators covered that ground in the immediate aftermath of the ruling.(10) Instead, this note is the first comprehensive analysis of J.E.B.'s impact during its first five years in practice.(11) Part I sketches the reasons legal analysts supported and opposed J.E.B., focusing on critics' fears about the decision's implementation. Part II details the results of my study of more than 450 state and federal cases interpreting J.E.B. Part III discusses the implications of these results and suggests further research.

1. FROM SIDESHOW TO MAIN EVENT

   Once the Supreme Court eliminated the use of peremptory strikes based solely on race in Batson v. Kentucky,(12) some commentators proposed possible reforms of the use of peremptories,(13) while others advocated banning them entirely.(14) Meanwhile, some scholars called for the extension of Batson to gender. Particularly influential was Professor Barbara Allen Babcock's work, A Place in the Palladium: Women's Rights and Jury Service,(15) which Justice Blackmun cited in his majority opinion in J.E.B.(16) Professor Babcock argued that equal protection analysis mandated Batson's extension to gender "[b]ecause the story of women's exclusion from jury service is not only analogous to the history of racial exclusion but also the same story growing out of the same historical period and events."(17) Peremptory strikes of women based solely upon their gender hearkens to "ancient stereotypes about their competence and predispositions" traced from "the long history of sex discrimination in this country,"(18) Babcock wrote. She also noted the interplay of race and gender in peremptory strikes, which continues to bedevil their use.(19)

   The case in which the Supreme Court extended Batson to gender, J.E.B. v. Alabama ex rel. T.B., offered one example of the way gender-based peremptories had been used, and why a change was needed. During jury selection in this paternity suit, the State used nine of its ten peremptory strikes to remove male jurors, while the defendant used all but one of his strikes to remove women.(20) As a result, the defendant was tried by an all-female jury.(21) He was found to be the father of the child and ordered to pay child support.(22) The Supreme Court reversed the decision and remanded the case for a new trial because discriminatory criteria were used in selecting the jury.(23) The Court held that "gender, like race, is an unconstitutional proxy for juror competence and impartiality,"(24) reaffirming that "[i]ntentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women."(25)

   Some analysts challenged the very premise of J.E.B., either agreeing with Justice O'Connor that gender-based presumptions about juror attitudes are sometimes accurate ("We know that like race, gender matters"),(26) or noting that it was men, not women, who suffered under the peremptory system because they were more often the subject of peremptory challenges.(27) Yet other commentators were sharply critical of the decision's anticipated consequences, dubbing it the death knell of the peremptory, which they believed worked only when litigators were unafraid to use truly unquestioned strikes.(28) Foremost among these was Justice Scalia, who wrote in his dissent to J.E.B. that, with the decision,

   [M]uch damage has been done ... to the peremptory challenge system, which loses its whole character when (in order to defend against "impermissible stereotyping" claims) "reasons" for strikes must be given. The right of peremptory challenge "`is, as Blackstone says, an arbitrary and capricious fight; and it must be exercised with full freedom, or it fails of its full purpose.'"(29) Many remained unpersuaded by Justice Blackmun's assurance that "[o]ur conclusion that litigants may not strike potential jurors solely on the basis of gender does not imply the elimination of all peremptory challenges."(30) Much of the concern about the demise of the peremptory seemed to be based on the misapprehension that trial attorneys would be required to explain all peremptory strikes.(31) However, as Justice Blackmun made plain in J.E.B., a prima facie showing of intentional discrimination was and is necessary before the party exercising the challenge must explain the strike.(32)

   Beyond the general criticisms aimed at any judicial review of peremptories and resulting attorney self-censorship, protests about J.E.B. fell into two general camps: fears that Batson review would be extended to peremptory challenges based on classifications other than race and gender, and administrative worries that J.E.B. both would prove unworkable and would unleash a flood of collateral litigation. I will address each of these concerns in turn.

   1. "Wide-Eyed Blondes and Football Players ": Extension of J.E.B.

      Much as Chief Justice Burger worried that Batson would be extended beyond race to additional categories of jurors,(33) Justice Scalia fretted that J.E.B. could not be confined to gender. His first concern was that all peremptory strikes based on any group characteristic were at risk in the decision's wake because all could be termed "stereotypes."(34) Justice Scalia hedged that apprehension by recognizing that traditional equal protection jurisprudence might provide a limiting principle: "Perhaps, however (though I do not see why it should be so), only the stereotyping of groups entitled to heightened or strict scrutiny constitutes `the very stereotype the law condemns'--so that other stereotyping (e.g., wide-eyed blondes and football players are dumb) remains OK."(35) But even if the Batson principle could be limited to race, sex, religious belief, and other classifications entitled to strict scrutiny, to Justice Scalia the decision's damage had been done.(36)

      Justice Scalia was far from alone in assuming that a ban on religion-based peremptory strikes would be the next of many more Batson offspring.(37) Yet the Supreme Court has declined the opportunity to extend Batson beyond gender to religion, or to any other characteristic. Barely a month after issuing its decision in J.E.B., the Supreme Court denied certiorari in Davis v. Minnesota, in which the Minnesota Supreme Court had declined to bar religion-based peremptory strikes.(38) In her concurrence to the denial of certiorari, Justice Ginsburg highlighted two key observations from the Minnesota Supreme Court: "(1) `[R]eligious affiliation (or lack thereof) is not as self-evident as race or gender'; (2) `Ordinarily ..., inquiry on voir dire into a juror's religious affiliation and beliefs is irrelevant and prejudicial, and to ask such questions is improper.'"(39)

      In dissent from the denial of certiorari, Justice Thomas, joined by Justice Scalia, argued that, in the wake of J.E.B., "no principled reason immediately appears for declining to apply Batson to any strike based on a classification that is accorded heightened scrutiny under the Equal Protection Clause."(40) Justice Thomas continued:

      In breaking the barrier between classifications that merit strict equal protection scrutiny and those that receive what we have termed `heightened' or `intermediate' scrutiny...