Concept
Limits on Peremptories
Selection and composition of juries
Limits on Peremptories
Rule 47(b) tells the court to allow the number of peremptory challenges that 28 U.S.C. § 1870 provides, and it stops there.1 The rule counts strikes. It names no permitted reasons and no forbidden ones, which fits the device: as the previous section explained, a peremptory challenge is a strike made without a stated reason. A reader who saw only the rule might conclude that a party may spend its strikes on any ground at all, including a juror’s race. The Constitution forecloses that conclusion. Each side in federal court still has three strikes, but the Supreme Court has held it unconstitutional to use them to exclude people because of race or gender.2
The restriction took shape in criminal prosecutions, with Batson v. Kentucky, and reached civil litigation in Edmonson v. Leesville Concrete Co.3 The second step is the puzzling one. The Constitution’s equal protection guarantee applies, in general, only to government action, and in a civil suit a private party’s lawyer does the striking.4 The Court’s answer is that a litigant who exercises a peremptory challenge acts for the government, for that limited purpose. The subsections that follow trace that answer through the civil rule, the state-action reasoning, the extension past race, and the weaknesses that make the rule hard to enforce.
Batson in Civil Trials
A private litigant in a civil case may not use peremptory challenges to exclude jurors on account of race, the Supreme Court held in Edmonson.5 The holding leaves Rule 47(b)’s allotment alone. Each party keeps its strikes and, in the ordinary case, need not explain them. Race is now a ground that no litigant may act on.
Edmonson, a Black man, and Leesville Concrete Co. tried a civil dispute in federal district court. During voir dire, Leesville used two of its three peremptory challenges to remove Black prospective jurors. Edmonson asked the court to make Leesville articulate a race-neutral explanation for those strikes, and the court refused. The jury that was seated returned a verdict unfavorable to Edmonson.6 A divided en banc court of appeals affirmed, holding that a private civil litigant may exercise peremptory challenges without accountability for alleged racial classifications. The Supreme Court granted certiorari and reversed.7
Edmonson invoked a framework built in criminal cases, and two criminal decisions matter most. Under Swain v. Alabama, a defendant could raise an equal protection challenge to a prosecutor’s strikes only by proving that the prosecution, “in case after case, whatever the circumstances,” removed jurors because of race, and the burden was nearly impossible to meet.8 Batson reexamined that burden and held that using peremptory challenges to exclude jurors of the defendant’s race violates the Equal Protection Clause.9
Powers v. Ohio supplied the second building block. A criminal defendant, regardless of his or her race, may object to a prosecutor’s race-based exclusion of jurors, the Court held, on a two-part analysis. First, a prosecutor’s race-based peremptory challenge violates the equal protection rights of the jurors excluded. Second, well-established rules of third-party standing let the defendant raise those jurors’ rights.10 Powers thus moved the injury from the defendant to the juror, and it made the objector’s own race irrelevant.
Edmonson carried both parts of Powers into civil trials, beginning with the injury. Race discrimination in selecting a civil jury harms the excluded juror no less than it does in a criminal trial: in either case, race is the sole reason for denying the venireperson the honor and privilege of participating in the justice system.11 “Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal,” the Court wrote, and Congress had already prohibited various discriminatory acts in both kinds of trial.12 Congress’s 1968 jury-selection statute states a similar policy, aiming to prevent discrimination in jury selection on the basis of “race, color, religion, sex, national origin, or economic status.”13 The Constitution, the Court concluded, “demands nothing less.”14 That an act violates the Constitution when a government official commits it does not settle whether a private litigant or lawyer who commits the same act offends the same guarantee, and the next subsection takes up that question.15
The second part of Powers explains why the objecting litigant, and not the struck juror, raises the claim. Powers relied on third-party standing rules to let a defendant assert the excluded jurors’ rights.16 Edmonson framed the remaining issue as whether a civil litigant has a sufficient interest in challenging race-based exclusion, and it concluded that courts must entertain such a challenge.17 The interest is not an interest in keeping a favorable juror. A juror predisposed toward one side could be excused for cause, so the injury lies instead in racial discrimination that “casts doubt on the integrity of the judicial process.”18 Because the claim belongs to the excluded juror, the objecting litigant’s own race does not matter.19
The Court also pointed litigants to an alternative. A party who suspects that a prospective juror harbors bias can explore the issue in a rational way that respects the dignity of persons, without classifications based on ancestry or skin color.20
The first stage filters. It keeps the peremptory unexplained in the ordinary case, because a duty to justify every strike would erase the difference between a peremptory challenge and a challenge for cause. The second stage puts the burden of explaining on the party that knows why it struck. The third stage leaves the final judgment to the court that watched the voir dire.
Edmonson’s own record shows the kind of circumstance that matters at the first stage: Leesville spent two of its three strikes on Black prospective jurors.25 The Court said that the Batson approach to the prima facie case applies in civil trials, left it to the trial courts in the first instance to develop evidentiary rules, and remanded.26
An exam stem in which one side strikes a juror and the other side complains of discrimination usually tests whether the facts reach the first stage, because the duty to explain arises only after that stage is met.
The pattern carried the objection through the first stage. Take it away, so that one Black juror is struck, the lawyer’s other strikes remove jurors of other races, and nothing else suggests race, and the objector has shown less. The court may then find no prima facie case, in which event no explanation is owed and the strike stands.
Why Litigants Are State Actors
The Constitution’s equal protection guarantee applies, in general, only to government action, yet the strikes in Edmonson came from the lawyer for a private company.29 The Court therefore had to explain why a private litigant’s peremptory challenge counts as government conduct. Private conduct lies beyond the Constitution’s scope in most instances, but governmental authority can dominate an activity so thoroughly that its participants must be deemed to act with the government’s authority and so must honor constitutional limits.30 The law of state action marks that boundary, the line between the private sphere and the public sphere with its constitutional obligations.31
The Court took its two-part inquiry from Lugar v. Edmondson Oil Co. The first part asks whether the claimed deprivation resulted from the exercise of a right or privilege having its source in state authority. The second asks whether the private party charged with the deprivation can in all fairness be described as a state actor.32 The second part is fact-driven, and three considerations guide it: how far the actor relies on governmental assistance and benefits, whether the actor performs a traditional governmental function, and whether the injury is aggravated in a unique way by the incidents of governmental authority.33 Applying them, the Court held that the defendant’s peremptory challenges were exercised pursuant to a course of state action.34
The first question is easy here because Leesville’s strikes drew on an Act of Congress. Without that authorization, the Court observed, Leesville could not have engaged in the alleged discriminatory acts.35 Section 1870 supplies the allotment, and Rule 47(b) directs courts to honor it.36 A litigant who strikes a juror is using a power the government created.
Federal jury selection supplies the assistance that the second question asks about at every stage. Congress’s 1968 statute fixes the qualifications for service and requires each district court to adopt a plan for selecting jurors.37 The clerk of the district court, a federal official, summons jurors from their employment and other pursuits. Jurors must travel to a federal courthouse and report as the court directs, and each receives a per diem fixed by statute whether or not he or she is seated. Counsel typically receive juror forms and rely on them when they strike.38 The trial judge then controls voir dire, deciding what information counsel may learn about a prospective juror, which affects both challenges for cause and peremptories, and in some districts the judge conducts the entire voir dire.39
The last link in that chain makes a strike effective. A lawyer’s choice to strike is only an intention until the judge discharges the juror. The party who exercises a challenge invokes the formal authority of the court, which must discharge the prospective juror and so effect the “final and practical denial” of that person’s opportunity to serve.40 The Court concluded that a private party could not exercise its peremptory challenges without the “overt, significant assistance of the court,” and that a court enforcing a discriminatory strike places “its power, property and prestige behind the [alleged] discrimination.”41 The motive for the strike belongs to the lawyer, but the legal effect of the strike comes from the court.
The third question looks at what the strike is used for. A peremptory challenge selects members of the jury, which the Court called “a quintessential governmental body, having no attributes of a private actor.” The jury exercises the power of the court and of the government that confers the court’s jurisdiction, and, as Powers noted, it performs the critical functions of guarding litigants’ rights and ensuring continued acceptance of the laws by all of the people.42 The jury’s governmental role has deep roots. Criminal jury trial, which many trace to Magna Carta, was preserved as a protection against arbitrary rule, among the major objectives of the revolutionary settlement expressed in the Declaration and Bill of Rights of 1689.43
The Court found support in Terry v. Adams, in which a private association ran whites-only elections to select the candidate for the Democratic primary, and its candidate was certain to win both the primary and the general election. The principle drawn from Terry, which at least a plurality of the Court recognized, is that when government confers on a private body the power to choose its employees or officials, the body is bound by the constitutional mandate of race neutrality.44 The Court also drew on Polk County v. Dodson, which held that a public defender is not a state actor in his general representation of a criminal defendant because the relation is otherwise adversarial.45 Dodson turned on the employee’s purpose and function, and so does this case. A private litigant becomes a government actor “for the limited purpose of using peremptories during jury selection,” because the selection of jurors is a unique governmental function delegated to private litigants by the government.46
The fourth question asks where the harm occurs. The injury is made more severe because the government permits it inside the courthouse, and few places express the government’s constitutional authority more fully than a courtroom, where the law itself unfolds.47 A summoned juror has no choice about appearing. If race-based strikes were permitted, people could be put by summons at risk of open and public discrimination as a condition of taking part in the justice system, an injury that would be the direct result of governmental delegation and participation.48
The holding has a boundary. The Court did not treat every choice a civil litigant makes as the government’s. In most civil cases, the decision whether to sue, the selection of counsel, and many tactical choices in discovery and trial may lack the governmental character that state action requires. Peremptory challenges differ because litigants who take part in selecting jurors serve an important function within the government and act with its substantial assistance.49 A party that hires a particular law firm has drawn on no statutory grant and called on no court to act against a summoned citizen, but the same party’s strike does both.
The dissent in Edmonson read the same facts differently. It treated the government’s summoning of jurors and the judge’s control of voir dire as “merely a prerequisite to the use of a peremptory challenge,” not as participation in the challenge. That a strike could not occur without a venire, the dissent argued, no more makes the strike state action than building roads and providing public transportation makes riding a bus state action.50 On the dissent’s account, the judge does not encourage a strike at all: the decision belongs entirely to the litigant, the reasons are of no consequence to the judge, and the judge does little more than acquiesce by excusing the juror. The government, it concluded, has virtually no role in the use of peremptory challenges, and in some jurisdictions voir dire and selection can proceed, with the parties’ consent, without any court personnel present.51
The two opinions read one fact in two ways. Both agree that the judge excuses the juror, and they disagree about what that act is. The majority sees the discharge as the step that gives the strike legal effect, taken by a state actor on behalf of a litigant who holds delegated power over the membership of a governmental body. The dissent sees a ministerial reply to a choice the litigant alone made. The majority’s reading controls, and its force does not rest on the discharge alone, because the delegation point and the traditional-function point hold even if the judge does little. An answer on a state-action question should therefore run through both parts of the inquiry and the three considerations in order and tie each one to the jury setting. Noting that the judge is a state actor supplies only one link.
Gender and Other Bases
Rule 47(b) says nothing about the grounds on which a party may strike, but the Constitution does, and its limit runs past race.54 The Supreme Court carried the ban on race-based strikes over to gender in J.E.B. v. Alabama ex rel. T.B., so a party in a federal civil trial may exclude a juror because of neither race nor gender.55
The race decisions supply the reasoning that carries over. They treat a race-based strike as an injury to the excluded juror, who loses the honor and privilege of serving for no reason except race.56 A gender-based strike has the same structure. The lawyer removes a person because of a group trait, predicting that the person will vote as the group is assumed to vote, and the person removed is injured whichever side the lawyer represents.
The ban leaves the peremptory itself in place. Each side still has its allotment, and the bar targets particular grounds.57 A party may still remove a juror it finds less acceptable for reasons tied to the case or the person, such as occupation, attitude, or acquaintance with someone in the dispute, but gender may not serve as a stand-in for bias. A stand-in is a visible trait used to answer the question the lawyer cannot ask directly, which is whether this juror will be fair.
When an exam stem reports that a lawyer struck women from the venire, ask what reason the lawyer gave.
The fact that changed between the two trials is the link between the reason and gender. In the first trial the reason is the juror’s gender, and in the second it is an acquaintance that would justify caution about anyone. The objection in the first trial runs through the three stages described in the last subsection, and the lawyer’s answer fails at the second.
Gender is not the only basis the cases reach. The Batson framework has been extended to civil trials and applied to jury selection practices that exclude jurors on other discriminatory bases, as in Hernandez v. New York, which involved the use of peremptory challenges against Latino jurors, and Taylor v. Louisiana, which involved the partial exclusion of women from jury service.58 The bar also binds whoever holds the strike. The authorities applying it to race reach prosecutors, civil litigants, and criminal defendants (Georgia v. McCollum), and the gender decision itself arose from a prosecutor’s strikes.59
Enforcement Problems and Reform
The three-stage inquiry is only as strong as its second stage, and the second stage is weak. All the striking party must do there is offer a race-neutral reason, and the Supreme Court has described that burden as low: the reason “need not be plausible, let alone persuasive.”61 Courts have accepted dismissals of Black prospective jurors for alleged lack of intelligence or low education, living in a high-crime area, “look[ing] like a drug dealer,” chewing gum, wearing sunglasses in court, and having a child out of wedlock.62
The low bar fits the device it regulates. A peremptory challenge is a strike without a stated reason, so demanding a persuasive justification at the second stage would erase the line between a peremptory and a challenge for cause. The cost is leakage. A rule that asks for a neutral explanation but never checks whether the explanation was the real one mainly catches the lawyer who offers none. One commentator concludes that because almost any proffered explanation is accepted, the procedure does little to eliminate racial discrimination from jury selection, and that minorities continue to be denied their right to sit on juries at alarmingly high rates.63
Strikes also operate on a pool that earlier choices have shaped. The venire is drawn at random from voter lists or other demographic sources, and where the case is filed matters. A state court usually draws from a single county, while a federal court draws from a broader area, so a federal civil jury in a city may be less diverse and more affluent than a state jury in the same city.64 Congress’s 1968 statute requires voter lists as the source and random selection from a fair cross-section of the community, and the challenge to the array, discussed earlier in this chapter, addresses defects in assembling the pool.65 Batson reaches only the strikes made after the pool exists.
Persistent claims of racial bias in the use of peremptories have produced calls from the bench to eliminate them altogether, among them Justice Breyer’s concurring opinion in Miller-El v. Dretke.66 One state has instead rewritten how its courts evaluate the explanation. In 2018 the Washington Supreme Court adopted General Rule 37, which sets criteria for judges evaluating peremptory challenges for bias, makes certain reasons for striking jurors “presumptively invalid,” and provides that certain stock reasons will not suffice unless the judge or opposing counsel corroborates them.67 Each feature targets the weakness described above. A list of presumptively invalid reasons removes explanations that can travel with a group trait. The corroboration requirement tests whether a stock reason was real by asking whether someone other than the striking lawyer saw the thing described, which gives the second stage something to check against.
The rule that governs the explanation separates the two courtrooms, since the reason offered is identical in both. General Rule 37 applies in the Washington courts that adopted it and leaves the federal framework untouched. A federal civil answer therefore runs the three stages, names the low second-stage burden as the reason group-based strikes can survive, and presents elimination of peremptories and Washington’s rule as responses proposed or adopted elsewhere. For now the allotment survives intact, because Rule 47(b) still directs courts to allow the number § 1870 provides.68
This section has dealt with who may be struck and why. The next turns to how many jurors remain. Courts in several jurisdictions have cut the cost of jury trials by seating fewer than twelve jurors, because smaller juries can be selected more rapidly.69