Concept
Reach of Batson
Impartial jury and Batson challenges
Reach of Batson
Batson v. Kentucky was first framed as a protection for the defendant. The decision itself required the defendant to show that he belonged to a cognizable racial group and that the prosecutor had used peremptory strikes to remove jurors of that group, which treated the injury as a trial before a jury missing members of the defendant's own race.1 The Court later moved the injury to a different place. In Powers v. Ohio it held that the harm reaches the community at large and the excluded jurors themselves, because a juror removed solely for race loses a significant opportunity to take part in civic life.2 Once the injury sits with the excluded juror, the defendant's own race no longer limits the objection, and three questions have to be answered fresh: who may object, who is bound by the rule, and which groups are protected.
Each question receives a broader answer than the original framing would have given, and one reason supports all of them. Jurors face considerable practical barriers to challenging their own exclusion, so a litigant is allowed to assert their rights for them, which is called third-party standing: a party raising a right that belongs to someone else.3 The harm to the juror and the community is the same whoever exercises the strike, so the rule binds defense counsel, who performs a traditional governmental function when striking jurors in a criminal trial, and it binds private litigants in civil cases as well.4 The harm also does not depend on which group the juror belongs to, which is why the protection covers white jurors, jurors excluded because of nationality or ethnicity, and jurors excluded because of gender.5 The reach still has an edge. Classifications that receive heightened equal protection scrutiny fit the rationale, while efforts to extend Batson to age, sexual orientation, and political affiliation have been far less successful.6
An exam stem on this material usually changes one variable from the Batson facts, such as the objector's race, the identity of the striker, or the group the juror belongs to. The answer follows the injury to the juror, so the claim survives each of those changes when the strike excludes a juror on a forbidden basis. The three sections below take the extensions in turn: standing for an objector who does not share the juror's race, strikes by defense counsel and civil litigants, and gender and ethnicity.
Standing to Object
The first of the three questions, who may object, received its answer in Powers v. Ohio. A white defendant on trial for aggravated murder objected when the state used peremptory challenges to remove seven Black venire members, and the Court held that he had suffered an injury that gave him standing to raise the equal protection claim of the excluded jurors.8 The holding is stated broadly: a criminal defendant may object to race-based peremptory strikes whether or not the defendant and the excluded jurors are of the same race.9 The rest of this section explains why the Court reached that result and what the result leaves undecided.
The holding removed a limitation that had been assumed for a long time. For over a century, equal protection objections to the exclusion of jurors were thought to be open only to defendants of the same race as the excluded jurors.10 Batson itself was written in those terms, and the requirement was satisfied there because the defendant and the struck jurors were both Black.11 Powers rejected any such limitation, so a defendant's own race no longer bears on whether the defendant may complain that jurors were struck because of theirs.12
The reason for the change lies in where the injury sits. The equal protection guarantee protects a defendant tried by a jury that lacks members of his own race, and it also protects the community at large and the excluded jurors, who are kept from a significant opportunity to participate in civic life solely because of their race.13 That relocation of the injury creates a puzzle. If the wronged party is the juror, the defendant is asserting someone else's right, and ordinarily a litigant may not do that. The doctrine that allows it in some circumstances is third-party standing, which permits one party to raise another person's right when the circumstances justify it, and Powers found those circumstances present.14
The justification has two parts, and each has its own logic. The first concerns the defendant's stake. A defendant need not share a juror's group membership in order to share an interest in a proceeding free from invidious discrimination.15 A verdict returned by a jury picked along racial lines is the defendant's verdict whatever the defendant's race, and the Court has described Batson as protecting the rights of defendants and jurors together while strengthening public confidence in the fairness of the criminal justice system.16 The second part concerns the jurors' own ability to act. The excluded jurors would themselves confront "considerable practical barriers" to challenging their exclusion.17 The barriers follow from the situation itself. A struck juror is not a party to the case and is released from the panel on the spot, and a separate lawsuit over one strike in someone else's trial would likely be heard long after that trial had ended. The party at counsel table has both the motive and the opportunity to object at the moment it matters, in front of the judge who watched the whole selection and can rule on it.18
The old same-race condition also fit poorly with the rest of Batson. It carried the assumption that jurors of a given race lean toward defendants of that race, yet Batson had already refused to let a prosecutor strike a Black juror on the belief that the juror would favor a Black defendant.19 The Court appears to have been wary of building that assumption into constitutional doctrine, and it shifted the rationale to the juror's own right not to be excluded from service.20 Once the right belongs to the juror, the defendant's race says nothing about whether the right was violated, which is why the objection survives a change in the defendant's race.
Standing opens the door to the Batson inquiry without deciding it. A defendant of any race who objects must still present circumstances that raise an inference of discrimination at step one, and the three-step procedure then runs as before.21 Standing to object is not proof of a violation, and an exam stem that makes the defendant's race differ from the struck jurors' tests only the first of those questions.
The principle is not confined to strikes of trial jurors. The same reasoning let a white defendant challenge discrimination against Black citizens in the selection of grand jurors in Campbell v. Louisiana, even though peremptory challenges play no part in choosing a grand jury.22 Standing follows the injury to the excluded citizen and does not depend on the particular mechanism of exclusion. The same device of letting the party who is present assert the jurors' rights also explains why the State may object to strikes made by the defense, which the next section takes up.23
Defense and Civil Strikes
The Batson rule first operated against prosecutors, who are government officials, so the Equal Protection Clause reached their strikes without any further argument.25 Defense lawyers and private civil litigants raise a harder question. The Equal Protection Clause restrains the government, and a private person's conduct is attributed to the government, which is what state action means, only when the state is heavily involved in it.26 The Court answered that question for private civil litigants first and for criminal defendants second, and in both settings it found that a party who strikes a juror because of race is acting for the state.27
The civil answer came in Edmonson v. Leesville Concrete Co., where a Black construction worker injured at a federal jobsite sued a private company for negligence, and the company used two of its three peremptory challenges to remove Black prospective jurors.28 The district court refused his request that the company explain the strikes, reasoning that Batson did not reach civil cases, and the jury that sat had eleven white members and one Black member.29 The Supreme Court reversed and held that a private litigant's race-based exclusion of jurors in a civil case violates the equal protection rights of the excluded jurors.30 Because the case arose in federal court, the guarantee applied through the Fifth Amendment's Due Process Clause, and a civil case in state court draws on the Fourteenth Amendment instead.31 The opposing litigant may raise the excluded jurors' rights on their behalf, using the same third-party device that let the white defendant object in Powers.32
The state-action reasoning in Edmonson runs through two inquiries. The first asks whether the harm to the excluded jurors comes from exercising a right that has its source in government authority, and it does, because a litigant has peremptory challenges only when federal or state law provides them.33 The second asks whether the litigant can fairly be called a state actor in using them, which depends on whether the actor relies on governmental assistance, performs a traditional governmental function, and causes an injury aggravated by the setting of governmental authority.34 Jury selection satisfies each factor. If peremptory challenges did not exist, the court would plainly be choosing the jury itself, and the government does not change the character of that power by delegating a slice of it to the parties.35 The premise underneath is old, since in Shelley v. Kraemer the Court restated the long-settled rule that the action of state courts and judicial officers in their official capacities is state action under the Fourteenth Amendment.36 That premise explains why a juror excused in open court because of race appears to have been removed by the state, whoever asked for the removal.37
Georgia v. McCollum applied the same reasoning to the party the Sixth Amendment protects. White defendants charged with assaulting Black victims tried to strike Black prospective jurors because of their race, the prosecution objected, and the Court held that Batson governed the defense strikes.38 The Court gave four reasons, which together answer both the state-action question and the question whether the accused's own rights point the other way.39
The fourth reason answers the objection a defendant would naturally raise, since a peremptory strike feels like part of the right to choose an impartial jury. Those guarantees secure an impartial decision-maker, and nothing in them requires the freedom to remove citizens on account of race, so the Batson interest and the accused's rights never collide. The first reason explains why the identity of the striker does not matter: the injury to the juror and the community is identical whether the prosecutor or the defense lawyer wields the strike. The rule also runs in both directions. McCollum itself involved white defendants striking Black jurors, and Black defendants are likewise barred from striking white jurors.40
Two limits keep these extensions from overreaching. The first concerns who may complain of a defendant's strikes. McCollum does not let a defendant overturn a conviction on equal protection grounds because the defendant's own attorney used peremptories discriminatorily, although it does let one defendant challenge strikes that a codefendant, joined with the first for trial, exercised separately.41 The line tracks who is positioned to object. A Batson objection is a claim against someone else's use of a peremptory, raised at trial before the judge who can sustain it, and a defendant has no opposing party in his own lawyer. A codefendant who strikes separately is such a party, because the first defendant's fate depends on a jury partly shaped by strikes the first defendant did not control.
The second limit is that neither decision treats a strike as discriminatory merely because a private party or a defendant made it. In Edmonson the Court said the prima facie question turns on all relevant circumstances, including any pattern of strikes against members of one race, and it remanded so the trial courts could develop evidentiary rules.42 The three-step procedure therefore governs defense and civil strikes just as it governs a prosecutor's, and an objector who shows no inference of discrimination at step one gets no explanation at step two.
On an exam stem, the usual error is to assume the clause cannot reach a lawyer who is not a prosecutor. A defendant's adversary position and a litigant's private status take neither one outside Batson, because the right to strike exists only by government authority and the court itself carries out the strike. When a stem reports that defense counsel struck every juror of one race and the prosecutor objects, or that a civil party did so and the opponent objects, the court must run the Batson inquiry. When a stem reports that a convicted defendant now blames his own lawyer's strikes, the claim gives no ground for overturning the conviction.
Gender and Ethnicity
The preceding sections settled who may object to a peremptory strike and who is bound by the rule. A separate question is which juror characteristics a strike may not rest on, and the answer reaches well past the Black jurors whose removal gave the rule its name. The constitutional protection covers all race-based strikes, including the exclusion of potential jurors because they are white, and it extends to strikes based on nationality and ethnicity.45 The reason lies in what the claim protects. Each removal of an individual juror because of race is a constitutional violation in itself, and the Court has rejected the arguments that race-based strikes are tolerable because jurors and defendants of every race are equally exposed to them, or because prosecution and defense can offset each other's strikes.46 A rule built on the injury to the struck juror has no reason to ask which race that juror belongs to, so a white juror removed for being white states the same claim as a Black juror removed for being Black.
Ethnicity follows race through the same door. Batson and McCollum hold that the ban on racial and ethnic discrimination governs the choice of individual jurors through peremptory challenges, and not only the assembly of the venire.47 In Hernandez v. New York the Court found that Hispanics have a right to be free from discrimination in jury selection.48 The venire cases had already taken that step, since the showing that raises a presumption of discrimination, a small share of a group called to jury duty despite a much larger share in the community, was applied to ethnicity in Castaneda v. Partida just as it had been applied to race.49 The step is a short one, because once race is an invalid way to sort citizens it is invalid for every race, and the next move was to national origin.50
Protection for an ethnic group does not turn every strike that falls heavily on that group into a violation. In Hernandez the plurality said that a neutral explanation is simply one based on something other than the juror's race, and that the question is whether discriminatory intent was present, not whether the strikes had a racially disproportionate impact.51 The prosecutor there struck bilingual jurors who might have difficulty accepting the interpreter's version of Spanish-language testimony, and that reason was neutral because it rested neither on an intent to exclude Latino jurors nor on stereotypes about Latinos or bilinguals.52 The explanation described a feature of the case, the need to rely on an interpreter, and a feature of the juror's own capacity to do so. A strike resting on the assumption that Latino jurors as a group will favor a Latino party would have no such case-related footing and would fail.
The firmly settled extension beyond race is gender. In J.E.B. v. Alabama ex rel. T.B. a state brought a child-support action on behalf of a woman against the father of her child, and the government's attorney used nine of ten peremptory challenges to remove men from the jury.53 The Court held that "gender, like race, is an unconstitutional proxy for jury competence and impartiality."54 Because a government lawyer made the strikes, no state-action question arose, and the Court built on the decisions that had already barred race-based strikes in civil and criminal trials.55 The same principle governs attorneys generally, so a party who objects may raise the struck jurors' rights just as in the race cases.56 The three-step procedure covered earlier applies without change, and only the classification at issue is new.
Gender receives this protection for the same structural reason race does, which is that equal protection review of gender classifications is heightened. After Reed v. Reed struck down an Idaho preference for men over women as estate administrators, the Court settled on intermediate scrutiny in Craig v. Boren, under which a gender classification must serve an important governmental objective and be substantially related to achieving it.57 Applied to jury selection, the question is whether gender discrimination substantially furthers the state's legitimate interest in a fair and impartial trial. The answer is no, because the supposed link depends on an assumption that men or women as groups hold certain attitudes in certain kinds of cases, and acting on that assumption reinforces the stereotype.58 The harm also matches the race cases, since discrimination in jury selection on either ground injures the litigants, the community, and the individual jurors who are wrongly excluded.59
Two refinements follow from the individual-juror focus. First, balance across the groups does not cure a gender strike. Where the state struck nine men and one woman and the defendant struck nine women and one man, each sex lost ten jurors, yet every juror removed because of sex was denied equal treatment as an individual, and a prima facie case of gender discrimination was established.60 Second, the rule reaches sex itself and does not forbid every reason that happens to correlate with sex. J.E.B. recognized that strikes based on characteristics disproportionately associated with one gender can be appropriate, absent a showing of pretext.61
Beyond race, ethnicity, and gender, the material shifts from Supreme Court holdings to lower-court positions. Lower courts have divided over whether Batson bars strikes based on religion, with the better view banning strikes based on membership alone while allowing strikes based on a juror's activities or articulated beliefs.62 That line tracks the logic of the gender cases. Membership is a group trait, and striking on it assumes that members of the group think alike. What a juror says about personal beliefs or has done speaks to that juror's own views.
Attempts to extend Batson to age, sexual orientation, political affiliation, and a host of other characteristics have proved less successful.63 The reluctance is consistent with the way J.E.B. rested on heightened equal protection scrutiny, which suggests that Batson's broadest reach lies with other classifications that receive the same scrutiny.64 A Batson claim is an equal protection claim, so a characteristic outside that tier has not carried the same force. These areas are not settled Batson categories, and an answer that treats them as holdings overstates the law. On an exam stem, a strike of a white juror, a Latino juror, or a male juror goes through the ordinary three steps. A strike justified only by age, politics, or sexual orientation will probably not support a successful objection, and a religion strike turns on whether it rested on membership or on beliefs and activities.