J. E. B. v. Alabama ex rel T. B. - 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 peremptory challenges 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 emphasized that 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."