Why Batson Misses the Point

Author:Tania Tetlow
Position:Felder-Fayard Associate Professor of Law, Tulane University
Pages:1713-1744
 
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1713
Why Batson Misses the Point
Tania Tetlow
INTRODUCTION .................................................................................... 1714
I. RECOGNIZING IMPARTIALITY AS THE MOST IMPORTANT
CONSTITUTIONAL GOAL ...................................................................... 1715
II. WHY BATSON GETS IT WRONG ............................................................. 1719
A. BATSON DENIES THE VALUE OF DIVERSITY ...................................... 1720
B. BATSON SACRIFICES IMPARTIALITY ................................................. 1727
1. Requiring an Explanation for Gut Instinct ........................ 1728
2. Banning Race and Gender from Consideration in the
Effort To Root Out Bias ....................................................... 1730
C. BATSONS PROBLEMS CANNOT BE SOLVED BY MERELY TINKERING
WITH IT ........................................................................................ 1735
III. COLORBLIND LOGIC OF BATSON INTERFERES WITH MORE EFFECTIVE
MEASURES TO REDUCE THE RISK OF JURY DISCRIMINATION ............... 1737
IV. HOW DO WE REPLACE BATSON?........................................................... 1742
CONCLUSION ....................................................................................... 1743
Felder-Fayard Associate Professor of Law, Tulane University; J.D. magna cum laude,
Harvard Law School; former Assistant United States Attorney. Special thanks to Janet C.
Hoeffel, Keith Werhan, Stacy Seicshnaydre, Pam Metzger, the participants of the Symposium,
and Erin West for her excellent research assistance.
1714 IOWA LAW REVIEW [Vol. 97:1713
INTRODUCTION
Twenty-five years ago, the United States Supreme Court responded to
growing empirical evidence of rampant discrimination in jury deliberations
by changing the subject. Batson v. Kentucky did not grapple with the need to
choose an impartial jury free of racist jurors, but instead focused on
discrimination against jurors.1 In reaching its decision, the Court prioritized
the rights of citizens to colorblind jury selection over the impartial
functioning of the criminal justice system. If lawyers choosing a jury could
simply put race out of their minds, we could all pretend to have solved the
problem. In the end, Batson does not grapple with the endemic problem of
discrimination by jurors so much as it creates a grand distraction.
The Court thus continues to shy away from prying open the black box
of jury deliberations to determine whether the jury was in fact impartial, as
guaranteed by the Sixth Amendment, or to determine whether the jury has
discriminated in violation of the Equal Protection Clause. Nor does the
Court in Batson focus on jury diversity: looking at the outside appearance of
the black box and hoping that it is a good sign about the possibility of
impartiality. Instead, Batson puts the black box aside altogether and focuses
on the motives of the lawyers who are guessing about the contents of the
black box.
The Batson rule creates false hope for the protection of jury diversity
and impartiality, but not because it affirmatively values either goal. Rather,
the Court purports to solve the problem of endemic jury discrimination by
simply mandating a state of denial about it. The Court actually forbids any
presumption that justice might turn upon race.2 Because it would prove too
“divisive” to recognize the proven realities of jury discrimination, the Court
instead works to force an aspirational colorblindness onto the lawyers
selecting the jury.3
Our constant disappointment that Batson fails to protect jury diversity
ignores the fact that Batson does not value diversity at all. Instead, Batson
held unconstitutional the very idea that race and gender predict belief.4
What makes this colorblind reasoning particularly jarring is that it directly
contradicts the Court’s own “fair cross-section” jurisprudence, in which the
Court assumed that diversity is our most important tool to work towards the
goal of an impartial jury.5 The Court then dramatically shifted course with
1. Batson v. Kentucky, 476 U.S. 79 (1986).
2. See Powers v. Ohio, 499 U.S. 400, 410 (1991).
3. Ristaino v. Ross, 424 U.S. 589, 596 n.8 (1976); see also discussion infra Part II.B.
4. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991) (applying the
Batson rule to civil trials and reasoning that contemplating race during jury selection is simply
not “rational.”); Ristaino, 424 U.S. at 596 n.8.
5. See discussion infra Part II.A.
2012] WHY BATSON MISSES THE POINT 1715
the Batson line of cases to forbid the assumption that the race and gender
diversity of the jury could matter to its verdict.6
In our focus on Batson’s failures to produce jury diversity, scholars have
too often ignored the bigger problem—Batson actually interferes with the
quest for jury impartiality. In fact, the Batson line of cases proves particularly
willing to sacrifice some measure of jury impartiality in order to fulfill other
goals.7 The Batson rule prohibits lawyers from stereotyping, for example,
even when done for the constitutionally important goal of rooting out bias.
A lawyer representing a black client or the prosecutor in a hate-crime trial
may not presume that white jurors are more likely than black jurors to be
biased against a black defendant or victim.8
The Court proves strangely willing to forgo the guarantees of an
impartial jury in order to protect potential jurors from race and gender
stereotyping. Though we may well decide to retain the Batson rule for the
sake of third parties to the trial, we should not trade off the rights of litigants
to nondiscriminatory justice lightly, and we should be honest about the
decisions we make. More to the point, because Batson focuses on
discrimination against jurors, we still need a solution for the problem of
discrimination by jurors.
As a result of Batson and its progeny, we have become far more worried
about the appearance of jury impartiality than its reality. Worse yet, we have
become more worried about the motives of the lawyers picking the jury than
about the actual impartiality of the chosen jury. We worry more about
discrimination against jurors than about discrimination by jurors. It is time to
open up the black box of jury deliberations, rather than fretting about its
exterior.
I. RECOGNIZING IMPARTIALITY AS THE MOST IMPORTANT CONSTITUTIONAL
GOAL
I argue that the Supreme Court’s constitutional governance of jury
selection protects three distinct goals: individual juror impartiality, the
diversity of the jury as a whole, and the lawyer’s colorblindness when
selecting a jury. Let me begin by briefly describing the impact of the Court’s
regulation of jury selection during the twentieth century. Then, by
articulating these goals more carefully and by noticing when they diverge,
we can better measure the tradeoffs inherent in Batson.
Here is how the jury-selection process now functions during the course
of a trial: first, the Court interprets the Sixth Amendment requirement of an
6. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 148–49 (1994) (O’Connor, J.,
concurring) (describing the Court’s decision to pretend that race and gender do not matter,
though empirical evidence proves otherwise, in order to protect equ al-protection goals).
7. See, e.g., J.E.B., 511 U.S. at 148 (O’Connor, J., concurring); Georgia v. McCollum, 505
U.S. 42, 57 (1992).
8. See discussion infra Part II.B.

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