Scalia’s Criminal Law Legacy: The Batson Edition

If you’re a litigator, or have sat on a jury panel, you know that jury selection is really a process of deselection. Attorneys for each side challenge members of the venire to effect their removal. The remainder comprises the jury and any alternates. Our legal system recognizes two forms of challenges attorneys may raise to boot prospective jurors from the panel. The first, the for-cause challenge, is a request to dismiss a prospective juror because he or she is disqualified from service. Disqualification usually arises because the venireperson has a demonstrable bias in favor or against one of the parties. For-cause challenges are not automatic; the judge must find that the potential juror is legally disqualified from service. The other is the peremptory challenge. Each party to a trial has a limited number of peremptory strikes it can use to remove prospective jurors without having to state its reasons, without regard to jurors’ legal qualification to serve, and without having to suffer objections from the opposing party (for the most part—see below).

Five months before Scalia took his seat as an Associate Justice, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79 (1986), which held that a prosecutor violates the Equal Protection Clause by using a peremptory challenge to exclude a juror solely because that juror shares the racial identity of the defendant. Justice Thurgood Marshall hailed the 7-2 decision as “a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries.” Over the next decade, Justice Scalia led a tiny battalion intent on halting Batson’s encroachment into peremptory challenge territory. In three major cases that extended Batson’s protections, Scalia found himself on the losing side.

White defendants can challenge exclusion of a black venireperson: Powers v. Ohio, 499 U.S. 400 (1991)

Under the doctrine of stare decisis, judges generally adhere to precedent. Stare decisis is not an “inexorable command,” however—the Constitution Annotated’s list of “Supreme Court Decisions Overruled by Subsequent Decision” is 236 rulings long. When a judge concludes that a precedent is erroneous, the judge must choose to overrule the decision or follow stare decisis. In making that choice, judges consider, among other factors, how much time has passed since the precedent was handed down. The longer a precedent has survived, the more weight is given stare decisis. Today, three decades later, Batson is a fixture, probably beyond reproach. Not in 1991. Five years after Batson was decided, Scalia, joined by Justice Rehnquist (who had been among the Batson dissenters) challenged its foundations.

Scalia began his dissent in Powers by affirming that all citizens have an equal protection right not to be excluded from jury rolls on the basis of race or other irrelevant factors. “This principle,” he continued,

would also prohibit the systematic exclusion of a particular race or occupation from all jury service through peremptory challenges. When a particular group has been singled out in this fashion, its members have been treated differently, and have suffered the deprivation of a right and responsibility of citizenship. But when that group, like all others, has been made subject to peremptory challenge on the basis of its group characteristic, its members have been treated not differently but the same. In fact, it would constitute discrimination to exempt them from the peremptory-strike exposure to which all others are subject.

In Scalia’s view, the equal protection clause is implicated when peremptory strikes are employed systematically to exclude all members of a group from jury service, but not when the racially-discriminatory use of peremptories falls shy of systematic exclusion. Scalia acknowledged that his interpretation of equal protection principles would allow the government to strike a black juror solely because of his race, but

the stricken juror has not been “treated differently” in the only pertinent sense-that is, in the sense of being deprived of any benefit or subjected to any slight or obloquy. The strike does not deprecate his group, and thereby “stigmatize” his own personality. Unlike the categorical exclusion of a group from jury service, which implies that all its members are incompetent or untrustworthy, a peremptory strike on the basis of group membership implies nothing more than the undeniable reality (upon which the peremptory strike system is largely based) that all groups tend to have particular sympathies and hostilities-most notably, sympathies towards their own group members. Since that reality is acknowledged as to all groups, and forms the basis for peremptory strikes as to all of them, there is no implied criticism or dishonor to a strike. Nor is the juror who is struck because of his group membership deprived of any benefit. It is obvious . . . that a defendant belonging to an identifiable group is benefited by having members of that group on his jury, but it is impossible to understand how a juror is benefited by sitting in judgment of a member of his own group, rather than of another.

The result of Batson was the abolition of the traditional, unfettered peremptory challenge, which Scalia felt was deserving of preservation:

“[I]rrelevant” personal characteristics are by definition the basis for using [peremptory challenges]; relevant characteristics would produce recusal for cause. . . . [T]he irrelevant characteristics relied upon are frequently those that would promptly trigger invalidation in other contexts-not only race, but religion, sex, age, political views, economic status. Not only is it implausible that such a permanent and universal feature of our jury-trial system is unconstitutional, but it is unlikely that its elimination would be desirable. The peremptory challenge system has endured so long because it has unquestionable advantages. . . . [I]t is a means of winnowing out possible (though not demonstrable) sympathies and antagonisms on both sides, to the end that the jury will be the fairest possible. In a criminal-law system in which a single biased juror can prevent a deserved conviction or a deserved acquittal, the importance of this device should not be minimized.

The theme running through Scalia’s dissent in Powers is that the Court’s approach is nakedly results-driven. To reach its end, Scalia argued, the Court (1) ignored “a vast body of clear statement” that defendants could not challenge the exclusion of a juror of another race; (2) invented a right that jurors have an equal protection interest not to be excluded from a jury because of their race (Batson, Scalia explained, “announced an equal protection right, not of prospective jurors to be seated without regard to their race, but of defendants not to be tried by juries from which members of their race have been intentionally excluded.”); and (3) relaxed the strictures of the third-party standing doctrine to allow a criminal defendant to challenge the violation of another person’s constitutional rights.

I’d bet that Scalia was fond of the aphorism, “The road to Hell is paved with good intentions.” While recognizing that the Court was acting on a sense of justice, and that many would see the decision as a triumph for racial justice, Scalia saw something darker. It wasn’t just that the Court had twisted the law to achieve its desired result—the result would produce real injustices:

The Court’s decision today is unprecedented in law, but not in approach. It is a reprise, so to speak, of Miranda v. Arizona, in that the Court uses its key to the jailhouse door not to free the arguably innocent, but to threaten release upon the society of the unquestionably guilty unless law enforcement officers take certain steps that the Court newly announces to be required by law. . . . The sum and substance of the Court’s lengthy analysis is that, since a denial of equal protection to other people occurred at the defendant’s trial, though it did not affect the fairness of that trial, the defendant must go free. . . .

Judging from the Court’s opinion, we can expect further, wide-ranging use of the jailhouse key to combat discrimination. Convictions are to be overturned, apparently, whenever “race is implicated in the trial” . . . . To me this makes no sense. Lofty aims do not justify every step intended to achieve them. Today’s supposed blow against racism, while enormously self-satisfying, is unmeasured and misdirected. If for any reason the State is unable to reconvict Powers for the double murder at issue here, later victims may pay the price for our extravagance. Even if such a tragedy, in this or any case, never occurs, the prosecutorial efforts devoted to retrials will necessarily be withheld from other endeavors, as will the prosecutorial efforts devoted to meeting the innumerable Powers claims that defendants of all races can be relied upon to present-again with the result that crime goes unpunished and criminals go free.

Private litigants are also bound by Batson: Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)

Edmonson expanded the protections of Batson by holding that private litigants in civil cases cannot exercise race-based peremptory strikes without violating the Constitution. The ruling’s constitutional underpinnings are found not in Batson, but in the state action doctrine. Private actors can’t violate the Constitution. For instance, a private employer who tells her employees they can’t have right-leaning bumper stickers on their vehicles if they want to avail themselves of the company parking garage doesn’t violate the First Amendment. If a governmental office instituted such a policy, it would be unlawful viewpoint discrimination. The Edmonson Court applied the Constitution to private litigants by reasoning that private litigants become governmental actors when they use peremptory strikes, and are thus subject to the same constitutional restrictions placed on the government in Batson and Powers. In Georgia v. McCollum, 505 U.S. 42 (1992), Edmonson reached its logical extension—that criminal defendants are also governmental actors when they exercise peremptory challenges.

It was “terminally absurd,” Scalia thought, for the Court to say that “a criminal defendant, in the process of defending himself against the state,” is in fact “acting on behalf of the state.” His strongest condemnation of the Court’s ruling was directed not at the “sheer inanity” of its justifications, but at its consequences for criminal defendants:

Today’s decision gives the lie once again to the belief that an activist, “evolutionary” constitutional jurisprudence always evolves in the direction of greater individual rights. In the interest of promoting the supposedly greater good of race relations in the society as a whole (make no mistake that that is what underlies all of this), we use the Constitution to destroy the ages-old right of criminal defendants to exercise peremptory challenges as they wish, to secure a jury that they consider fair.

Sex discrimination in jury selection is unlawful: JEB v. Alabama, 511 U.S. 127 (1994)

Welcome to Scalia at his most sarcastic. Dissenting from the Court’s ruling that using peremptory challenges to exclude a potential juror because of his or her sex violates equal protection, Scalia opened, “Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors.” He went on to poke fun at the Court for spending much of its opinion condemning historic discrimination against females, while the case at hand concerned the exclusion of male jurors from a trial over paternity and child support.

Scalia revisited his objections to the Court’s constitutional policing of jury selection, before arguing that the Court’s fourth expansion of Batson and corresponding curtailment of the peremptory was more bad news for criminal defendants:

The loss of the real peremptory will be felt most keenly by the criminal defendant, whom we have until recently thought “should not be held to accept a juror, apparently indifferent, whom he distrusted for any reason or for no reason.” And make no mistake about it: there really is no substitute for the peremptory. Voir dire (though it can be expected to expand as a consequence of today’s decision) cannot fill the gap. The biases that go along with group characteristics tend to be biases that the juror himself does not perceive, so that it is no use asking about them.

By JEB, it was clear that Scalia had lost the fight to preserve an unfettered peremptory challenge. By a significant margin, too—he never had more than three votes for his position. Batson and its progeny have now woven their way into the very DNA of trial procedure. So much so one may question the relevance of Scalia’s Batson-line dissents. But his opinions on the subject are worth a read because they display Scalia’s thinking on a range of subjects at the heart of his legal philosophy: tradition, the minting of new constitutional rights, the Court’s willingness to bend its own precedents and rules to facilitate their expansion, and the unintended costs of such rights.

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