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
 
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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 BATSONS REALM ........................................................ 1406
B. REFINING BATSONS DOCTRINE ...................................................... 1411
C. MONITORING BATSONS 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.

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