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.

Scalia’s Criminal Law Legacy: 6th Amendment Edition (Part I)

The Sixth Amendment to our Constitution guarantees persons charged with crimes certain trial-related rights: to be tried by an impartial jury, to a speedy and public trial, to be informed of the nature of the charges, to confront the witnesses against them, to subpoena witnesses for their defense, and to the assistance of counsel.

Two of those rights—trial by jury and confrontation of adverse witnesses—underwent a transformative decade in the 2000s. Justice Scalia was instrumental to both transformations, which favored defendants.

Right to Trial by Jury

Criminal offenses consist of “elements” that the government must prove beyond a reasonable doubt to get a conviction. In recent decades, lawmakers have created schemes whereby facts and circumstances that aren’t “elements” of the charged offense, but relate to the offender and his crime, may increase the punishment for the offense. In the landmark case Apprendi v. New Jersey, 530 U.S. 466 (2000), the defendant pleaded guilty to a crime (possession of a weapon for an unlawful purpose) that carried a maximum penalty of 10 years. The prosecutor asked the judge to increase the sentence based on the fact that Apprendi’s crime was racially motivated. Because the judge agreed with the prosecutor, the law allowed the judge to impose up to 20 years, double the 10-year maximum for the crime. (The judge gave 12 years.) Under New Jersey law, the government had no obligation to present the hate crime enhancement to a jury and have its members find beyond a reasonable doubt that Apprendi’s motives were racial. Instead, the judge was permitted to make the finding by a preponderance of the evidence (a lighter, and from the government’s perspective more favorable, burden of proof).

In Apprendi’s case, the Supreme Court held that “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi’s sentence was invalid because a judge, not a jury, had determined the existence of an aggravating fact necessary to increase the sentence.

Apprendi upended the criminal sentencing landscape. Although Justice Stevens authored Apprendi on behalf of five justices, Justice Scalia laid the groundwork for the sea change in sentencing laws. In a dissent in Almendarez-Torres v. United States, 523 U.S. 224 (1998), Scalia set forth the rule that would carry the day two terms later in Apprendi: “[I]t is genuinely doubtful whether the Constitution permits a judge (rather than a jury) to determine by a mere preponderance of the evidence (rather than beyond a reasonable doubt) a fact that increases the maximum penalty to which a criminal defendant is subject.” Dissenting in Monge v. California, 524 U.S. 721 (1998), later in the same term as Almendarez-Torres, Scalia argued that the constitutional right to trial by jury meant little if it permitted judges to increase criminal sentences based on a range of sentencing enhancements a judge could unilaterally apply:

Suppose that a State repealed all of the violent crimes in its criminal code and replaced them with only one offense, “knowingly causing injury to another,” bearing a penalty of 30 days in prison, but subject to a series of “sentencing enhancements” authorizing additional punishment up to life imprisonment or death on the basis of various levels of mens rea, severity of injury, and other surrounding circumstances. Could the State then grant the defendant a jury trial, with requirement of proof beyond a reasonable doubt, solely on the question whether he “knowingly cause[d] injury to another,” but leave it for the judge to determine by a preponderance of the evidence whether the defendant acted intentionally or accidentally, whether he used a deadly weapon, and whether the victim ultimately died from the injury the defendant inflicted? If the protections extended to criminal defendants by the Bill of Rights can be so easily circumvented, most of them would be, to borrow a phrase from Justice Field, “vain and idle enactment[s], which accomplished nothing, and most unnecessarily excited Congress and the people on [their] passage.”

The views expressed in Scalia’s dissents in Almendarez-Torres and Monge would in short course become law.

Though no fan of the Court’s Eighth Amendment jurisprudence policing the death penalty (where he often found himself in dissent), Scalia joined the majority in Ring v. Arizona, 536 U.S. 584 (2002), invalidating the piece of Arizona’s capital sentencing law allowing a judge to determine the presence or absence of aggravating factors required for imposition of the death penalty. Scalia lamented that the Court’s own misguided interpretation of the Eighth Amendment had forced states to “specify particular ‘aggravating factors’ that must be found before the death penalty can be imposed.” Of overriding importance, however, was his belief “that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by the jury beyond a reasonable doubt.” He added this powerful paean to the jury’s role in capital trials:

[M]y observing over the past 12 years the accelerating propensity of both state and federal legislatures to adopt “sentencing factors” determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, cause me to believe that our people’s traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.

In Blakely v. Washington, 542 U.S. 296 (2004), Scalia’s majority opinion furthered the aims of Apprendi by holding that a trial judge violated Blakely’s jury right when the judge, in accordance with statute, gave an “exceptional sentence” (three years in excess of the maximum) to Blakely because he’d acted with “deliberate cruelty.” Like much of his best work, Scalia’s opinion in Blakely is at heart about power. He characterizes the jury right as “a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” To conclude, Scalia drew on his lodestar, the original meaning of Constitution, noting, “The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neighbours,’ rather than a lone employee of the State.”

Right to Confrontation of Witnesses

Around the same time as the Apprendi revolution, Scalia helped to reshape the meaning of the Confrontation Clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.” According to the Court’s ruling in Ohio v. Roberts, 448 U.S. 56 (1980), the Confrontation Clause did not prohibit the government from introducing an unavailable witness’s statement against a criminal defendant if the statement bore adequate “indicia of reliability.” Roberts meant that the government could (unless hearsay rules said otherwise) admit a witness’s out-of-court statements without affording the defendant an opportunity to cross-examine that witness in court. Scalia’s opinion in Crawford v. Washington, 541 U.S. 36 (2004), changed that by holding the government cannot introduce a witness’s out-of-court, testimonial statement unless the witness is unavailable and the defendant had a prior opportunity for cross-examination.

Because testimony from civilian witnesses who are vulnerable to intimidation or just don’t want to show up for court (which is common with domestic violence) is an integral piece of many prosecutions, Crawford raised the bar for prosecutors. Scalia raised the bar even higher in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), where the prosecution submitted a certified drug test report without also presenting live testimony of the forensic chemist who tested the drugs. In Scalia’s book, this scenario allowed for a “straightforward application” of Crawford; the government could not introduce the results of the drug test without offering up the analyst who tested the drugs for cross-examination. A certified report did not do.

Melendez-Diaz presents a particular challenge for forensic laboratories and prosecutors. Because the kinds of cases that often require forensic analysis, e.g., DUIs and drug cases, are high-volume, the demand for forensic witnesses in such routine cases cannot easily be met. Justice Kennedy captured such challenges well in his dissent in a related case, Bullcoming v. New Mexico, 564 U.S. 647 (2011):

New Mexico’s experience exemplifies the problems ahead. From 2008 to 2010, subpoenas requiring New Mexico analysts to testify in impaired-driving cases rose 71%, to 1,600—or 8 or 9 every workday. In a State that is the Nation’s fifth largest by area and that employs just 10 total analysts, each analyst in blood alcohol cases recently received 200 subpoenas per year. The analysts now must travel great distances on most working days. The result has been, in the laboratory’s words, “chaotic.” And if the defense raises an objection and the analyst is tied up in another court proceeding; or on leave; or absent; or delayed in transit; or no longer employed; or ill; or no longer living, the defense gets a windfall. . . . The concomitant increases in subpoenas will further impede the state laboratory’s ability to keep pace with its obligations. Scarce state resources could be committed to other urgent needs in the criminal justice system.

I doubt Scalia enjoyed the prospect that the rule he championed would give the defense a windfall in many cases (as the author of the law review article “The Rule of Law as a Law of Rules,” he probably had little sympathy for lawbreakers), but he was firm in his belief that inconvenience to the prosecution and its witnesses did not overcome the confrontation right. “The Confrontation Clause,” he wrote in Melendez-Diaz, “may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.”

Scalia’s preference for in-the-flesh confrontation was on display long before Crawford and Melendez-Diaz. In 1990 the Supreme Court was asked to decide whether the Confrontation Clause categorically prohibited a child victim in a child abuse case from testifying outside the physical presence of the defendant by one-way closed circuit television. (Maryland v. Craig, 497 U.S. 836 (1990)). The Court found that the “State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy.” In dissent, Scalia grasped the charitable impulse behind the policy, but gave no quarter in rejecting it:

Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The Sixth Amendment provides, with unmistakable clarity, that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant’s right to face his or her accusers in court.

Scalia’s deconstruction of the majority’s reasoning is an analytical gem worth quoting at length:

According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” That is rather like saying “we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment’s guarantee of the right to jury trial.” The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated “face-to-face confrontation”) becomes only one of many “elements of confrontation.” The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for—“face-to-face” confrontation—but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for—“face-to-face” confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was “face-to-face” confrontation. Whatever else it may mean in addition, the defendant’s constitutional right “to be confronted with the witnesses against him” means, always and everywhere, at least what it explicitly says: the “right to meet face to face all those who appear and give evidence at trial.”

One of the common criticisms of Justice Scalia’s jurisprudence is that his originalist legal philosophy served as a veneer allowing him to pursue his personal preferences under the guise of interpreting the Constitution. Scalia’s rulings on the jury right and confrontation right, which assisted criminal defendants, undermine that criticism, since there is nothing in Scalia’s writings that indicate a soft spot for criminals. Rather, his decisions in the Apprendi– and Crawford-line of cases, as well as in Craig, show how he carried out his formalist approach to constitutional interpretation without regard for which side he was helping.