Petitioner
J. E. B.
Respondent
Alabama ex rel T. B.
Petitioner's Claim
Because Batson v. Kentucky (1986) prohibited peremptory challenges based on racial discrimination, intentional discrimination on the basis of gender was also violative of the Equal Protection Clause of the Fourteenth Amendment.
Chief Lawyer for Petitioner
John F. Porter III
Chief Lawyer for Respondent
Lois B. Brasfield
Justices for the Court
Harry A. Blackmun (writing for the Court), Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, David H. Souter, John Paul Stevens
Justices Dissenting
William H. Rehnquist, Antonin Scalia, Clarence Thomas
Place
Washington, D.C.
Date of Decision
19 April 1994
Decision
Peremptory challenges on the basis of gender were inconsistent with the EqualProtection Clause. Respondent's biased exercise of peremptory challenges wasunconstitutional.
Significance
The U.S. Supreme Court had to determine whether its 1986 decision in Batson v. Kentucky (prohibiting exercise of peremptory challenges on the basisof race) could be similarly applied to a case where peremptory challenges were exercised on the basis of gender. Although respondent's rational that exclusion of jurors on the basis of sex could be justified because of expectations that male jurors might be predisposed to the arguments of the father, the Court reasoned that such stereotypical considerations could not validly exclude jurors. Intentional sex-based peremptory strikes were prohibited just as peremptory strikes based on racial discrimination.
The Peremptory Challenge
In order to determine paternity and get support for her minor child, respondent T. B. (mother), represented by the state of Alabama, filed a paternity suit against J. E. B. (alleged father). The trial court called 36 potential jurors (24 female, 12 male) for the panel. Three jurors were excluded by the court, so only 10 male jurors remained when the state exercised its nine of ten peremptory strikes to eliminate male jurors from the panel. Objecting to the peremptory challenges of the respondent, the petitioner invoked Batson v. Kentucky (1986) wherein peremptory strikes directed just to exclude jurorson the basis of race were held unacceptable and inconsistent with Equal Protection Clause of the Fourteenth Amendment. He contended that a similar nondiscriminatory standard was applicable to the respondent's intention to impanela jury which could diminish his possibility of an impartial trial. Despite the petitioner's objections, an all-female jury was seated and found the petitioner to be the father of the child in question; the court ordered him to paychild support. On appeal, the Alabama Court of Civil Appeals upheld the findings of the lower court.
Respondent (Alabama ex rel T. B.) contended that pretrial selection of a juryon the basis of gender should not be constrained as in Batson v. Kentucky. Instead, the respondent's attorney argued that discrimination on the basis of sex was never so delicate and critical as racial discrimination. Moreover, peremptory strikes of potential male jurors were justified because, historically, data suggested men could have a tendency to be more favorably inclined to arguments of males; conversely, women could be predisposed to arguments on behalf of the respondent. Finally, counsel for the respondent suggestedthat the Supreme Court might be more interested in determining paternity thandisposition of peremptory actions.
Six U.S. Supreme Court justices held that exclusion of jurors solely becauseof their sex was inconsistent with the Fourteenth Amendment's Equal Protection Clause. At the outset, they emphasized that regardless of whether the trialwas civil or criminal, all participants in the trial must enjoy adequate, equal protection with respect to jury selection. Historical prejudices and stereotypes that could jeopardize an equitable and fair trial had to be avoided,thus the practice of peremptory challenges had to be guided by equal protection principles. Justices recognized that peremptory challenges based on genderwere resurgent and recalled discriminatory exclusion of women as a significant fact in history; it was an irregular practice of the judicial system for many years. Nonetheless, since women were endowed with the same right as men to participate in trials and became trusted members of jury panels, no questions about appropriateness of sex should exist. Justices posited that the onlyconcern should be fairness in court rooms and that discrimination did not promote that fundamental feature of the judicial system. Thus, no relevance existed in supposing that men or women in the court room would act or have a tendency to act as a group. Further, discrimination among members of a jury poolwas contrary to quality jurisprudence. No grounds existed to support conventionalized ideas that men and women had dissimilar perspectives which could incline toward one litigant.
Different Discrimination?
The Court did not find that certain cases might justify suppositions that menand women could have different standpoints which would substantiate distinctions and exclusions on the basis of gender. Justices found that similar prejudicial attitudes had (historically) befallen African Americans and women, therefore, gender based classifications were equally unacceptable. In explainingthe majority rationale, Justice Blackmun pointed out that the history of sexand racial discrimination influenced the Court's judgement that only "an exceedingly persuasive justification" would ever justify sex-based classifications. Specifically, such classifications were dependent on "whether discrimination on the basis of gender in jury selection substantially furthers the state's legitimate interest in achieving a fair and impartial trial."
In the interest of securing unprejudiced trials, the majority disapproved ofperemptory challenges based on gender stereotypes. They rejected the respondent's argument that gender simply could be viewed as an issue apart from racediscrimination and that exclusions on the basis of gender could not cause harm to participants in the judicial process. They also pointed out that discrimination in court rooms, regardless of how well-intended, harmfully affected fairness of proceedings. They allowed, however, that some circumstances (suchas rape or sexual harassment trials), might merit peremptory challenges basedon gender. But the Court explained that prejudicial approaches about competence and abilities of male and female members of the jury could not be confirmed as an admissible and lawful means of reaching justice. Majority justices found as inappropriate the respondent's argument "that men deserve no protection from gender discrimination in jury selection because they are not victimsof historical discrimination." To the contrary, the justices felt "all persons, when granted the opportunity to serve on a jury, have the right not to beexcluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination."
The Court majority stressed that their opinion did not abolish use of all peremptory strikes. Peremptory challenges were acceptable if used to remove jurors from the panel if litigants felt that somebody could be "less acceptable"or if they found other attributes or reasons to exclude other than by genderor race. Justices hinted that peremptory strikes (when justification is required) had to be founded in some other rational excuse or juror's characteristic except gender. They did not devaluate the legitimate and practical usefulness of peremptory challenges, but they stressed that they were not rights protected by the Constitution and that their purpose was to impanel an impartialjury. The justices found that "gender simply may not serve as a proxy for bias."
Need for Limited Use
Justice O'Connor filed a concurring opinion. She also felt that the Equal Protection Clause prohibited elimination of jurors by gender but she felt that the Court's conclusion should have been "limited to the government's use of gender-based peremptory strikes." Justice O'Connor recognized that the substance of peremptory challenges was to empower litigants to choose members of a jury without offering particular reasons or being exposed to the court's control or inquiry for such movement. O'Connor further believed that the opportunity to create an impartial jury pool might be reduced by the ruling of the Court; she believed that sometimes gender-based presumptions could be correct. She thus maintained that the Court should have limited gender-based peremptorychallenges only to the government's use but should have allowed their unlimited use by private civil contestants and criminal defendants.
Justice Kennedy also supported the posture of the majority and he emphasizedthat the exclusion of male or female jurors as a consequence of peremptory strikes was not less intrusive than prohibition to serve as a juror just because of gender. Further, he said: "it is important to recognize that a juror sits not as a representative of a racial group, but as an individual citizen."
The Dissent
Three justices joined Justice Scalia's dissenting opinion. (Chief Justice Rehnquist, separately, also mentioned that he could not find so many similarities between sex and race discrimination. Accordingly, he would not accept the ruling in Batson v. Kentucky as reference for such holdings of the majority.) Scalia thought that this decision of the majority could damage administration of justice by reducing the strength of peremptory challenges. He saidthat peremptory challenges had the purpose of achieving the goal in impartial and fair trials and that the use of peremptory strikes on the basis of sexcould not cause the same harm as peremptories directed to African American jurors. The minority opinion criticized the Court's reliance on historical discrimination against woman to find use of peremptory challenges unconstitutional. Justice Scalia found it irrelevant and argued that no indicators existed which would show that the petitioner suffered some impairment because, like the respondent, he also had a chance to exercise his peremptory strikes. Scaliapointed out that the Court actually supported the petitioner's claim although harm was not done to him but to stricken jurors. Dissenting justices maintained that the coexistence of peremptory challenges with the Equal ProtectionClause should have not been questioned because the main purpose of peremptories was to provide litigants with the opportunity to seat an impartial jury. The Court's decision thus appeared to diminish the purpose of peremptories especially when the primary feature of peremptories was that reasons for strikesdid not have to be given. Consequently, the minority justices believed the judicial system could be adversely affected because the Court seemed to be promoting a practice that could end up with "quests for reasoned peremptories."
Impact
The judgement of the U.S. Supreme Court resolved the question of whether peremptory challenges, exercised because of gender prejudices, could survive "theheightened equal protection scrutiny." Majority justices held that equal protection principles applied when intentional peremptory challenges were exercised solely on the basis of gender. Discrimination and exclusion of jurors from the jury pool solely because of gender was, therefore, an intrusive exercise of peremptory challenges which was inconsistent with the integrity of the judicial system. The majority of the justices found that sex stereotypes wereinappropriate and that gender bias could not justify exclusion of male/femalejurors. Impartial juries had to be regarded as a competent collective not amatter of gender-based groups. In his separate concurring opinion, Justice Kennedy aptly summarized the Court's rationale: "the Constitution guarantees aright only to an impartial jury, not to a jury composed of members of a particular race or gender."
Related Cases
Peremptory Challenges
During the final phase of jury selection, attorneys on both sides question prospective jurors to determine their suitability to sit on the jury. Their goal is to dismiss jurors who might be biased against the interests of their clients. This process is called voir dire. During voir dire attorneys use two means to eliminate potential jurors: challenge for cause and peremptory challenge. When an attorney has reason to believe a juror will show partiality or be unfit to perform the duties of a juror, she may explain to thejudge her reasoning and have the juror dismissed for cause. The number of challenges for cause dismissals is not unlimited, however. Attorneys mayalso reject potential jurors by peremptory challenge, excusing a juror without stating specific reason or cause. Peremptory challenge allows an attorneyto exclude persons who cannot be successfully challenged for cause. The number of these challenges is also limited and set by law or court rules. The objective of peremptory challenge is to further ensure a fair, impartial jury.
Race or gender may not be the basis of a peremptory challenge. However, in the 1990s controversy raged over whether true elimination of race and gender bias had been achieved.
Sources
Epstein, Lee, and Thomas G. Walker. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Washington, DC: Congressional Quarterly Press, 1995.
J. E. B.
Respondent
Alabama ex rel T. B.
Petitioner's Claim
Because Batson v. Kentucky (1986) prohibited peremptory challenges based on racial discrimination, intentional discrimination on the basis of gender was also violative of the Equal Protection Clause of the Fourteenth Amendment.
Chief Lawyer for Petitioner
John F. Porter III
Chief Lawyer for Respondent
Lois B. Brasfield
Justices for the Court
Harry A. Blackmun (writing for the Court), Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, David H. Souter, John Paul Stevens
Justices Dissenting
William H. Rehnquist, Antonin Scalia, Clarence Thomas
Place
Washington, D.C.
Date of Decision
19 April 1994
Decision
Peremptory challenges on the basis of gender were inconsistent with the EqualProtection Clause. Respondent's biased exercise of peremptory challenges wasunconstitutional.
Significance
The U.S. Supreme Court had to determine whether its 1986 decision in Batson v. Kentucky (prohibiting exercise of peremptory challenges on the basisof race) could be similarly applied to a case where peremptory challenges were exercised on the basis of gender. Although respondent's rational that exclusion of jurors on the basis of sex could be justified because of expectations that male jurors might be predisposed to the arguments of the father, the Court reasoned that such stereotypical considerations could not validly exclude jurors. Intentional sex-based peremptory strikes were prohibited just as peremptory strikes based on racial discrimination.
The Peremptory Challenge
In order to determine paternity and get support for her minor child, respondent T. B. (mother), represented by the state of Alabama, filed a paternity suit against J. E. B. (alleged father). The trial court called 36 potential jurors (24 female, 12 male) for the panel. Three jurors were excluded by the court, so only 10 male jurors remained when the state exercised its nine of ten peremptory strikes to eliminate male jurors from the panel. Objecting to the peremptory challenges of the respondent, the petitioner invoked Batson v. Kentucky (1986) wherein peremptory strikes directed just to exclude jurorson the basis of race were held unacceptable and inconsistent with Equal Protection Clause of the Fourteenth Amendment. He contended that a similar nondiscriminatory standard was applicable to the respondent's intention to impanela jury which could diminish his possibility of an impartial trial. Despite the petitioner's objections, an all-female jury was seated and found the petitioner to be the father of the child in question; the court ordered him to paychild support. On appeal, the Alabama Court of Civil Appeals upheld the findings of the lower court.
Respondent (Alabama ex rel T. B.) contended that pretrial selection of a juryon the basis of gender should not be constrained as in Batson v. Kentucky. Instead, the respondent's attorney argued that discrimination on the basis of sex was never so delicate and critical as racial discrimination. Moreover, peremptory strikes of potential male jurors were justified because, historically, data suggested men could have a tendency to be more favorably inclined to arguments of males; conversely, women could be predisposed to arguments on behalf of the respondent. Finally, counsel for the respondent suggestedthat the Supreme Court might be more interested in determining paternity thandisposition of peremptory actions.
Six U.S. Supreme Court justices held that exclusion of jurors solely becauseof their sex was inconsistent with the Fourteenth Amendment's Equal Protection Clause. At the outset, they emphasized that regardless of whether the trialwas civil or criminal, all participants in the trial must enjoy adequate, equal protection with respect to jury selection. Historical prejudices and stereotypes that could jeopardize an equitable and fair trial had to be avoided,thus the practice of peremptory challenges had to be guided by equal protection principles. Justices recognized that peremptory challenges based on genderwere resurgent and recalled discriminatory exclusion of women as a significant fact in history; it was an irregular practice of the judicial system for many years. Nonetheless, since women were endowed with the same right as men to participate in trials and became trusted members of jury panels, no questions about appropriateness of sex should exist. Justices posited that the onlyconcern should be fairness in court rooms and that discrimination did not promote that fundamental feature of the judicial system. Thus, no relevance existed in supposing that men or women in the court room would act or have a tendency to act as a group. Further, discrimination among members of a jury poolwas contrary to quality jurisprudence. No grounds existed to support conventionalized ideas that men and women had dissimilar perspectives which could incline toward one litigant.
Different Discrimination?
The Court did not find that certain cases might justify suppositions that menand women could have different standpoints which would substantiate distinctions and exclusions on the basis of gender. Justices found that similar prejudicial attitudes had (historically) befallen African Americans and women, therefore, gender based classifications were equally unacceptable. In explainingthe majority rationale, Justice Blackmun pointed out that the history of sexand racial discrimination influenced the Court's judgement that only "an exceedingly persuasive justification" would ever justify sex-based classifications. Specifically, such classifications were dependent on "whether discrimination on the basis of gender in jury selection substantially furthers the state's legitimate interest in achieving a fair and impartial trial."
In the interest of securing unprejudiced trials, the majority disapproved ofperemptory challenges based on gender stereotypes. They rejected the respondent's argument that gender simply could be viewed as an issue apart from racediscrimination and that exclusions on the basis of gender could not cause harm to participants in the judicial process. They also pointed out that discrimination in court rooms, regardless of how well-intended, harmfully affected fairness of proceedings. They allowed, however, that some circumstances (suchas rape or sexual harassment trials), might merit peremptory challenges basedon gender. But the Court explained that prejudicial approaches about competence and abilities of male and female members of the jury could not be confirmed as an admissible and lawful means of reaching justice. Majority justices found as inappropriate the respondent's argument "that men deserve no protection from gender discrimination in jury selection because they are not victimsof historical discrimination." To the contrary, the justices felt "all persons, when granted the opportunity to serve on a jury, have the right not to beexcluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination."
The Court majority stressed that their opinion did not abolish use of all peremptory strikes. Peremptory challenges were acceptable if used to remove jurors from the panel if litigants felt that somebody could be "less acceptable"or if they found other attributes or reasons to exclude other than by genderor race. Justices hinted that peremptory strikes (when justification is required) had to be founded in some other rational excuse or juror's characteristic except gender. They did not devaluate the legitimate and practical usefulness of peremptory challenges, but they stressed that they were not rights protected by the Constitution and that their purpose was to impanel an impartialjury. The justices found that "gender simply may not serve as a proxy for bias."
Need for Limited Use
Justice O'Connor filed a concurring opinion. She also felt that the Equal Protection Clause prohibited elimination of jurors by gender but she felt that the Court's conclusion should have been "limited to the government's use of gender-based peremptory strikes." Justice O'Connor recognized that the substance of peremptory challenges was to empower litigants to choose members of a jury without offering particular reasons or being exposed to the court's control or inquiry for such movement. O'Connor further believed that the opportunity to create an impartial jury pool might be reduced by the ruling of the Court; she believed that sometimes gender-based presumptions could be correct. She thus maintained that the Court should have limited gender-based peremptorychallenges only to the government's use but should have allowed their unlimited use by private civil contestants and criminal defendants.
Justice Kennedy also supported the posture of the majority and he emphasizedthat the exclusion of male or female jurors as a consequence of peremptory strikes was not less intrusive than prohibition to serve as a juror just because of gender. Further, he said: "it is important to recognize that a juror sits not as a representative of a racial group, but as an individual citizen."
The Dissent
Three justices joined Justice Scalia's dissenting opinion. (Chief Justice Rehnquist, separately, also mentioned that he could not find so many similarities between sex and race discrimination. Accordingly, he would not accept the ruling in Batson v. Kentucky as reference for such holdings of the majority.) Scalia thought that this decision of the majority could damage administration of justice by reducing the strength of peremptory challenges. He saidthat peremptory challenges had the purpose of achieving the goal in impartial and fair trials and that the use of peremptory strikes on the basis of sexcould not cause the same harm as peremptories directed to African American jurors. The minority opinion criticized the Court's reliance on historical discrimination against woman to find use of peremptory challenges unconstitutional. Justice Scalia found it irrelevant and argued that no indicators existed which would show that the petitioner suffered some impairment because, like the respondent, he also had a chance to exercise his peremptory strikes. Scaliapointed out that the Court actually supported the petitioner's claim although harm was not done to him but to stricken jurors. Dissenting justices maintained that the coexistence of peremptory challenges with the Equal ProtectionClause should have not been questioned because the main purpose of peremptories was to provide litigants with the opportunity to seat an impartial jury. The Court's decision thus appeared to diminish the purpose of peremptories especially when the primary feature of peremptories was that reasons for strikesdid not have to be given. Consequently, the minority justices believed the judicial system could be adversely affected because the Court seemed to be promoting a practice that could end up with "quests for reasoned peremptories."
Impact
The judgement of the U.S. Supreme Court resolved the question of whether peremptory challenges, exercised because of gender prejudices, could survive "theheightened equal protection scrutiny." Majority justices held that equal protection principles applied when intentional peremptory challenges were exercised solely on the basis of gender. Discrimination and exclusion of jurors from the jury pool solely because of gender was, therefore, an intrusive exercise of peremptory challenges which was inconsistent with the integrity of the judicial system. The majority of the justices found that sex stereotypes wereinappropriate and that gender bias could not justify exclusion of male/femalejurors. Impartial juries had to be regarded as a competent collective not amatter of gender-based groups. In his separate concurring opinion, Justice Kennedy aptly summarized the Court's rationale: "the Constitution guarantees aright only to an impartial jury, not to a jury composed of members of a particular race or gender."
Related Cases
- Batson v. Kentucky, 476 U.S. 79 (1986).
- Wiley v. Com., 978 S.W.2d 333 (1998).
Peremptory Challenges
During the final phase of jury selection, attorneys on both sides question prospective jurors to determine their suitability to sit on the jury. Their goal is to dismiss jurors who might be biased against the interests of their clients. This process is called voir dire. During voir dire attorneys use two means to eliminate potential jurors: challenge for cause and peremptory challenge. When an attorney has reason to believe a juror will show partiality or be unfit to perform the duties of a juror, she may explain to thejudge her reasoning and have the juror dismissed for cause. The number of challenges for cause dismissals is not unlimited, however. Attorneys mayalso reject potential jurors by peremptory challenge, excusing a juror without stating specific reason or cause. Peremptory challenge allows an attorneyto exclude persons who cannot be successfully challenged for cause. The number of these challenges is also limited and set by law or court rules. The objective of peremptory challenge is to further ensure a fair, impartial jury.
Race or gender may not be the basis of a peremptory challenge. However, in the 1990s controversy raged over whether true elimination of race and gender bias had been achieved.
Sources
Epstein, Lee, and Thomas G. Walker. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Washington, DC: Congressional Quarterly Press, 1995.
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