Locating the Problem of Race-Based Peremptory Challenges in a Broader Context: The Possibilities Raised by the Foster Case on the Court’s Docket

One of the most intriguing cases on the Supreme Court’s docket this fall is Foster v. Chatman. The procedural setting of the case is complicated, but the core issue comes down to whether the Georgia courts did their job in making sure that the state prosecutor in Mr. Foster’s criminal case did not exercise “peremptory” strikes from the jury pool—these are devices by which either side in a case can remove a set number of would-be jurors from serving, based not on any demonstrated “cause” or “prejudice” on the part of each potential juror, but on a mere hunch or a feeling that the stricken juror would not be good for that lawyer’s side—on the basis of the race of the would-be juror.

The case isn’t intriguing because the issue of striking jurors because of their race is new; the case is intriguing precisely because three decades since the Supreme Court made clear that prosecutors (and the rule has since been extended to all lawyers in all cases) cannot use race as the basis for even a single peremptory challenge (in Batson v. Kentucky), everyone knows that lawyers routinely do use race as a basis for exercising peremptories, and they get away with it. As Linda Greenhouse put it in a recent New York Times piece profiling the Foster case, Batson’s failure in practice is an “open secret.”

How (and Why) Batson Doesn’t Work To Eliminate Race-Based Challenges

Foster is a good, albeit striking (no pun intended) example. The prosecutors in Mr. Foster’s case had identified on paper all the black prospective jurors (and only the black prospective jurors) with the letter “B,” and at one point wrote down that “[i]f it comes down to having to pick one of the black jurors [to serve, a particular one] might be ok.” Moreover, the reasons the prosecutors gave when they used peremptory strikes to remove all four black potential jurors who remained at that point might be laughable if the stakes weren’t so high (Mr. Foster was on trial for a capital offense). One black juror was removed because “her age [was] so close to the defendant.” She was 34, and Mr. Foster was 19. Another juror, according to prosecutors trying to explain to the judge that their strikes weren’t based on race, was removed because one of his sons had been convicted of misdemeanor theft, which prosecutors said was “basically the same thing this defendant is charged with” (thereby inclining the juror to empathize with the defendant. The juror’s son had been given a suspended sentence for stealing hubcaps from a car in a parking lot five years earlier. Mr. Foster, as noted earlier, was on trial for capital murder and other alleged crimes.

And so forth. Nor is Foster the only case where Batson’s inherent unworkability is on display. The fundamental problem of enforcing a ban against the use of race is two-fold. First, judges understandably don’t want to denounce as liars and racists lawyers who articulate incredible explanations (unrelated to race) to account for their strikes of minority jurors. Second, it is in the very nature of a peremptory challenge that the “reason” offered can be idiosyncratic (even quirky); if an employer cited superstition as a basis for not hiring a minority applicant, we would more readily reject it as insincere, insofar as businesspeople don’t ordinarily make employment decisions based on superstition. But when a trial lawyer strikes a would-be juror because the juror is wearing red and the trial lawyer lost the last few trials when there were red-clad jurors, it may very well be that the lawyer is in fact motivated by odd intangibles that dominate the culture of trial attorneys.

Although there is broad agreement that Batson’s ban on race isn’t easily enforced, there is no such agreement about what to do to fix the problem. Various Supreme Court Justices (including Thurgood Marshall in Batson itself and Stephen Breyer a decade ago in Miller-El v. Dretke) have argued that it is time for peremptories to go. And it is also true that the Court has made clear that the Constitution does not mandate the availability of peremptory challenges. State legislatures could get rid of them in state court altogether, and Congress (acting under Article I and also under the reconstruction amendments enacted after the Civil War) could probably get rid of them in federal and state courts alike.

Focusing on Jury Service More Generally Beyond Racial Exclusion

But if legislators don’t act, what can the Supreme Court do? It is one thing to say the peremptory challenges aren’t constitutionally mandated, but it is quite another for a Court to say they are not constitutionally permissible. I think this question is made harder by the fact that people don’t broaden the problem of peremptory challenges beyond race (and perhaps gender and, recently, sexual orientation.) To be sure, the Court could ban peremptory challenges altogether on prophylactic grounds to ensure that race isn’t used, but when the Court micromanages criminal procedure for prophylactic reasons, it is often heavily criticized. Think Miranda warnings to ensure no coerced confessions are obtained, or the exclusionary rule to deter police violations of the Fourth Amendment.

If we pulled back from race and prophylaxis and asked, even outside the context of peremptory challenges targeted at particular groups, why anybody, regardless of membership in any particular group, should be stricken from being able to serve on a jury without a good reason, a more fruitful discussion could ensue. I believe (and have written extensively in academic pieces) that jury service has always been understood—in constitutional terms—as political participation akin to voting. Jurors vote—that’s what they do when they decide cases—and the voting-jury service linkage was recognized by the Constitution’s Framers in the 1780s by those responsible for drafting the Fourteenth and Fifteenth Amendments and their implementing legislation, and still later by authors of twentieth century amendments that protect various groups against discrimination in voting.

The Framers expected the jury to act as a mediating body to insulate individuals from government overreaching. Coming from a pool of ordinary citizens and owing no financial allegiance to the government, juries had the power to thwart the excesses of overly ambitious government officials. But the jury’s function in the constitutional scheme was not limited to the protection of individual litigants. Rather, the jury was an essential democratic institution because it was a means by which citizens could engage in self-government. As one political essayist at the time of the constitutional ratification wrote: “It is true, the laws are made by the legislature; but the judges and juries, in their interpretations, and in directing the execution of them, have a very expansive influence . . . for changing the nature of government.”

The French political analyst Alexis de Tocqueville and author of the famous tract Democracy in America in the nineteenth century, keenly understood the linkages between jury service and other political participation such as voting. As he noted, “[the jury] puts the real control of affairs into the hands of the ruled, . . . rather than into those of the rulers. . . . The jury system as understood in America seems to me as direct and extreme a consequence of the dogma of the sovereignty of the people as universal suffrage. They are both equally powerful means of making the majority prevail. . . . [T]he jury is above all a political institution.”

In the end, I conclude, a good argument can be made that we should not allow a person to be denied the right to serve on a jury for any reason that would not also suffice as a reason to deny that person the right to vote in an election. If this were the standard we applied—notwithstanding recent restrictions on election participation that have been upheld by various courts—the matter of getting rid of peremptory challenges would be rather simple, just as we no longer allow the franchise to be restricted on grounds that were acceptable in earlier times.

I have no expectations that the Court will use Foster to abolish peremptory challenges; there likely aren’t the votes for that today. But it is my hope that at least some of the Justices will begin to highlight the linkage between jury service and other rights of political participation, most paradigmatically the right to vote in elections, so that we better understand the true stakes as we address the question of how tolerant we should be of dishonest or (at best) ridiculous “reasons” for removing people from bodies that make law by applying it to particular cases.