Solving Batson.

Author:Tetlow, Tania
Position:Diversity and impartiality issues in peremptory challenges - II. Using a Sixth Amendment to Balance Impartiality and Diversity C. Why Batson Was Wrong: Equal Protection Does Not Ban Recognition That Racial Diversity on Juries Matters through IV. Conclusion, with footnotes, p. 1903-1946
 
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  1. Why Batson Was Wrong: Equal Protection Does Not Ban Recognition that Racial Diversity on Juries Matters

    Faced with the fork in the road between regulating jury selection for diversity or color blindness, the Supreme Court chose color blindness. (197) This did not represent a mere divergence between the two paths, but rather a conflict so great that my proposed Sixth Amendment rule would also require reversal of Batson. Currently, the Batson rule does not allow trial judges to consider and to regulate the diversity of the jury, as I propose, because Batson denies the very relevance of race. (198) The Supreme Court requires color blindness by everyone in the courtroom, going so far as to forbid trial judges from presuming that racism might impact a verdict because such a presumption would prove "too divisive" as a constitutional matter. (199) Instead judges must model an aspirational color blindness. (200)

    The restriction on judges does not represent the only conflict between the two paths. The Batson rule also forbids the lawyers exercising peremptory challenges from considering race as they guess about partiality. (201) The Court does so not to protect the defendant's rights to an impartial jury nor the public's right to a fair criminal justice system. (202) Instead, the Batson rule seeks to protect potential jurors from the then newly created harm of racial stereotyping standing alone. (203) As such, the test does not purport to protect the goal of an impartial jury, and proves willing to impose on impartiality if need be. (204)

    Let me explain why this proves such a distraction from the primary goal. The reason, in fact, that most judges and scholars care about regulating peremptory challenges is because they correctly believe that diversity does matter, that race frequently does predict belief, and that we want those beliefs to be represented on the jury to increase the chances of a correct verdict. (205) The reason that Batson has so utterly failed to protect diversity and impartiality is because Batson has changed the subject entirely. As Eric Muller has pointed out, if Batson's logic that race does not matter were true, then the Batson error by definition could have no impact on the verdict. (206) We would have no reason to worry about all-white juries committing injustice because the Supreme Court has told us that the race of jurors is irrelevant. (207) To believe otherwise while choosing a jury, the Court held, violates the Constitution. (208)

    My proposed test would focus on the rights of defendants and the actual fairness of the criminal justice system. It would grapple with the endemic racial discrimination that mars our system, not through the mandated use of denial, but by protecting the jury diversity necessary to combat that discrimination. Without throwing open the doors to overt use of racial stereotypes, it would carve out a middle ground that more closely resembles the rest of equal protection doctrine. Lawyers could not affirmatively rely on the correlation between race and belief when justifying a strike that skewed diversity, nor would we require lawyers to deny that they considered that correlation during jury selection. We would no longer equate race consciousness with racism, but we would require lawyers, using expanded rights to voir dire, to come up with more specific concerns about impartiality. Most importantly, we would allow judges to regulate jury selection to protect jury diversity.

    1. Valuing Diversity in Equal Protection Analysis

      The application of equal protection analysis to jury selection tends to get lost in the scholarly divisions between constitutional law and criminal procedure. Once we resituate Batson in the equal protection context, however, the case begins to look like an outlier from the other areas of law in which the Court allows consideration of race in order to promote diversity. (209) Although the Court has banned affirmative action in government hiring and contracting, (210) it has repeatedly allowed consideration of race for instrumental purposes related to diversity and representation. (211) For example, the Court has allowed universities to consider race as a "plus factor" in student admissions, even though that exacts a much higher cost on excluded students than the consideration would on jurors not chosen for a particular jury. (212) More striking yet, even the more conservative majority of the Court has allowed legislators sorting voters into legislative districts (a process quite similar to jury selection) to assume that race predicts voting behavior so long as they are not too obvious about it. (213) Only the Batson Court rejected any consideration of race despite the existence of a countervailing constitutional principle promoting diversity--that of the fair cross section doctrine.

      The breakdown of votes in the Supreme Court's Batson line of cases also presents a strange ideological reversal of the normal discussions on color blindness versus diversity. Only in the jury cases do the more conservative Justices argue that race consciousness does not equate to racism, and that diversity is necessary to combat the racism inherent in our society and thus in our jury system. (214) Stranger still, only in the jury cases do the more liberal justices deny the salience of race and proclaim the importance of aspirational color blindness as a model to the cynical public. (215) Neither side has ever conceded its inconsistency on these issues. (216)

      In comparison to the Batson cases, the Supreme Court has come to different conclusions about the constitutional value of diversity in the cases governing affirmative action in student admission. In Grutter v. Bollinger, a narrow majority of the Court allowed the University of Michigan Law School the leeway to consider race as a "plus factor" in order to promote diversity in its student body as an important educational tool. (217) The viewpoint that racial experience matters does not, the Court argued, equate to a belief that minorities always represent a particular viewpoint. It rebuts such stereotypes:

      Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a "critical mass" of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body. (218) Diversity, the majority reasoned, increases the likelihood that different viewpoints will be represented during classroom debates and that stereotypes will be broken down. (219)

      The dissenters, however, portrayed affirmative action as the denial of university admission to an individual based on his or her race. (220) Diversity amounts, they argued in this case and others, to an unconstitutional determination that race equates to a particular belief structure. (221) It reifies societal beliefs that race does and should matter. (222) And it denies an important benefit to an applicant on the basis of his or her race. (223)

      In the jury selection cases, each side of the Court made similar arguments, but on opposite sides of the issue. (224) The more conservative Justices argued in dissent that race predicts belief without guaranteeing it. "It is not merely 'stereotyping' to say that these differences [in racial experience] may produce a difference in outlook which is brought to the jury room." (225) Racial diversity matters to jury deliberations, particularly by guarding against the conscious and unconscious racism of white jurors. (226) The dissenters pointed out that for decades before Batson, the Court made clear in the fair cross-section cases that the idea that race and gender might matter to jury deliberations stems from the irrational and unconstitutional certainty that it will always matter. (227) The Court managed to make this argument while carefully avoiding race or gender essentialism. One does not have to believe in biologically ingrained difference to understand that the experience of race and gender discrimination often impacts ideology. (228)

      The more liberal majority in the Batson cases, however, argued that the idea that race predicts belief in jury deliberations is irrational, and based upon "open hostility or from some hidden and unarticulated fear." (229) To make the counterfactual claim that race never predicts belief, the Court engaged in a straw man argument. Instead of addressing whether lawyers exercising peremptories could permissibly guess that race or gender might predict belief, the Court reasoned that lawyers cannot constitutionally presume that race or gender will necessarily determine belief. (230) Batson redefined jury selection as a determination of qualification--a "person's race simply 'is unrelated to his fitness as a juror.'" (231) Many scholars perpetuate these arguments by equating race consciousness in jury selection to racism. (232)

      In reality, however, jury selection involves no presumption of certainty. Peremptory challenges guess at juror ideology; they do not declare it to be true. (233) The Batson Court in effect banned the empirically proven fact that race and gender sometimes do correlate to belief. (234) Here is another way to describe the strangeness of Batson's reasoning: if we define racist jury selection as a lawyer's irrational and inaccurate stereotyping, then this is conduct that comes with its own inherent penalty. Lawyers whose racial use of peremptory challenges has no merit only hurt their own cause. (235) They strike the wrong jurors. Instead, we are really worried about correct stereotypes. Fundamentally, we want to prevent people from wiping out representation of those views on the jury. (236)

      Starting with Shaw v. Reno, the Supreme Court...

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