Twenty-Five Years of Batson: An Introduction to Equal Protection Regulation of Peremptory Jury Challenges

• Author: James J. Tomkovicz
• Position: Professor of Law, The University of Iowa College of Law
• Pages: 1393-1423

1393

Twenty-Five Years of Batson: An

Introduction to Equal Protection

Regulation of Peremptory Jury Challenges

James J. Tomkovicz

I. FROM STRAUDER TO SWAIN TO BATSON: THE EQUAL PROTECTION

PROHIBITION ON DISCRIMINATORY JUROR SELECTION ........................ 1395

A. STRAUDER V. WEST VIRGINIA: STATUTORY PROVISIONS FOR ALL-

WHITE VENIRES AND EQUAL PROTECTION ....................................... 1395

B. SWAIN V. ALABAMA: PEREMPTORY STRIKES OF BLACK JURORS AND

EQUAL PROTECTION ....................................................................... 1396

C. BATSON V. KENTUCKY: PEREMPTORY CHALLENGES AND EQUAL

PROTECTION REDUX ....................................................................... 1399

D. BATSON HIGHLIGHTS: STARK DEPARTURES FROM THE PAST,

UNKNOWN PROSPECTS FOR THE FUTURE .......................................... 1402

II. TWENTY-FIVE YEARS OF BATSON PROGENY: DEFINING THE SCOPE,

DETAILING THE OPERATION ................................................................ 1406

A. EXPANDING BATSON’S REALM ........................................................ 1406

B. REFINING BATSON’S DOCTRINE ...................................................... 1411

C. MONITORING BATSON’S IMPLEMENTATION..................................... 1416

III. CONCLUSION ....................................................................................... 1423

 Edward F. Howrey Professor of Law, The University of Iowa Col lege of Law. I am

grateful to The University of Iowa College of Law for research support. Ry an Melcher and Greg

Taylor provided excellent research and editorial assistance. In addition, Dean Gai l Agrawal

deserves credit for responding enthusiastically to my request for institutional support for the

symposium. Moreover, my valued former colleague, Margaret Raymond, was in strumental in so

many ways in planning the event. Without her input and participation, it surely would not have

come about. Finally, Iowa Law Review Editor-in-Chief, Brian Jones, and Senior Articles Editor,

Sheila Bentzen, deserve much credit for graciously agreeing to publish the symposium’s

scholarly products. Their thoughtful decision provided an invaluable impetus.

1394 IOWA LAW REVIEW [Vol. 97:1393

On April 30, 2011, Batson v. Kentucky celebrated its twenty-fifth

anniversary. Although not every member of the Supreme Court is convinced

of Batson’s merits,1 there is no movement afoot to overturn or dramatically

modify it. A solid majority remains committed to the principles of Batson and

its progeny and to the doctrinal framework that gives concrete content to

Equal Protection Clause regulation of peremptory jury challenges. While the

Court cannot always ensure faithful implementation of Batson, in recent

years the Justices have intervened when lower courts have been unfaithful to

the spirit of that landmark ruling.2

The Court has confronted Batson issues on several occasions since 1986.

Some opinions have resolved significant questions about the breadth of

Fourteenth Amendment constraints upon peremptory challenges.3 Others

have involved efforts to prescribe the content of Batson’s doctrinal

framework with greater precision.4 Still others have revolved entirely around

the correct application of the Batson doctrine to particular fact situations.

5

The twenty-fifth anniversary of Batson is a fitting occasion for serious

evaluation of both Batson and its descendants. This symposium’s goals are to

document the landmark’s current status, to monitor its vitality, to assess its

impacts, and to reflect upon its future. The essays that follow ably

accomplish these goals. Indeed, the authors have provided an impressive

array of insights into and evaluations of Batson and a number of provocative

critiques of its significance and efficacy.

This introductory Essay serves as a primer. The primary objective is to

furnish a foundation for the analyses that follow. Part I describes the law

prior to 1986 and documents how Batson dramatically altered the legal

landscape, highlighting noteworthy facets of the Batson decision. Part II

surveys and summarizes post-Batson developments. Part III concludes.

1. See, e.g., Georgia v. McCollum, 505 U.S. 42, 60–62 (1992) (Thomas, J., concurring);

Powers v. Ohio, 499 U.S. 400, 425–26, 429–30 (1991) (Scalia, J., dissenting).

2. See Snyder v. Louisiana, 552 U.S. 472 (2008); Miller-El v. Dretke, 545 U.S. 231 (2005);

Miller-El v. Cockrell, 537 U.S. 322 (2003).

3. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (holding that gender-based

strikes are unconstitutional); McCollum, 505 U.S. 42 (extending Batson doctrine to defense

peremptories); Powers, 499 U.S. 400 (concluding that defendant may raise equal protection

challenge to peremptory strikes of jurors of a different race).

4. See Johnson v. California, 545 U.S. 162 (2005); Purkett v. Elem, 514 U.S. 765 (1995)

(per curiam); Hernandez v. New York, 500 U.S. 352 (1991).

5. See Felkner v. Jackson, 131 S. Ct. 1305 (2011); Snyder, 552 U.S. 472; Miller-El v. Dretke,

545 U.S. 231; Miller-El v. Cockrell, 537 U.S. 322.