Why Batson Misses the Point

• Author: Tania Tetlow
• Position: Felder-Fayard Associate Professor of Law, Tulane University
• Pages: 1713-1744

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. BATSON’S 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.