High court bans sex-based jury strikes.

The U.S. Supreme Court in April outlawed sex discrimination in jury selection, holding that striking a juror based on gender stereotypes violates the Equal Protection Clause. (J.E.B. v. State ex rel. T.B., No. 92-1239, 1994 WL 132232 (Apr. 19, 1994).)

"We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality," Justice Harry Blackmun wrote for the six-justice majority. The decision extends to sex-based peremptory challenges the Court's prohibition on race-based strikes announced in Batson v. Kentucky. (476 U.S. 79 (1986).)

Sex discrimination in jury selection "denigrates the dignity of the excluded juror and, for a woman, reinvokes a history of exclusion from political participation," the Court held. Although the case was brought by a man arguing that male jurors had been unconstitutionally excluded in his paternity trial, Blackmun's opinion concentrates on the effects of stereotyping on women.

Justice Antonin Scalia, dissenting, disagreed with the majority that excluding women from particular juries parallels the historical exclusion of women from all juries.

"Women were categorically excluded from juries because of doubt that they were competent; women are stricken from juries by peremptory challenge because of doubt that they are well disposed to the striking party's case," he wrote. "There is discrimination and dishonor in the former, and not in the latter."

Scalia, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, warned that the decision calls into question all peremptory challenges because lawyers often make judgments about potential jurors' sympathies based on group characteristics.

He added that the decision is likely to generate additional layers of litigation by parties who claim that the other side's peremptory strikes were motivated by gender bias. "Every case contains a potential sex-based claim," he said.

Justice Sandra Day O'Connor concurred in the Court's decision but wrote separately that "today's important blow against gender discrimination is not costless." She shared Scalia's concern that the decision will erode the role of the peremptory challenge and lessen a lawyer's ability to shape an impartial jury.

"We ... increase the possibility that biased jurors will be allowed onto the jury," she wrote, "because sometimes a lawyer will be unable to provide an acceptable gender-neutral explanation even though the lawyer is in fact correct that the juror is unsympathetic."

She said the decision should apply only to lawyers acting on behalf of the government. "I adhere to my position that the Equal Protection Clause does not limit the exercise of peremptory challenges by private civil litigants and criminal defendants," she said.

The case arrived at the Court from Alabama, where James Bowman lost a paternity suit in which an all-woman jury declared him the father of a boy born in 1989. The judge ordered him to pay child support.

Bowman appealed, claiming that he was deprived of his right to an impartial jury because the state, representing the mother, struck 9 of 10 men in the jury pool. (Bowman's lawyer struck the remaining man.) At oral argument last November, John Porter III of Scottsboro, Alabama, representing Bowman, told the Court that "men and women have the same ability to be unbiased."

After the decision, Porter acknowledged reservations about limiting peremptory challenges. "The entire trial bar and the entire bench have concerns about how [the decision] is going to be implemented," he said. "It may take some time for everyone to understand the ramifications of this, but I think whatever administrative problems arise will be worked out.

"As a trial lawyer, I would like unfettered discretion to strike whoever I want," he added, "but I believe [jury selection] has to be subject to equal protection principles."

Barbara Allen Babcock, a professor at Stanford Law School and an expert on the peremptory challenge, said the decision should be viewed in a positive light rather than as a death knell for the peremptory challenge.

"It is an occasion to make voir dire more meaningful," Babcock said. She said states should improve jury selection procedures to reduce the need for lawyers to rely on stereotypes. For example, statutes should allow use of juror questionnaires in all cases, she said, and should guarantee the confidentiality of responses so that attorneys could learn more details about a potential juror's background and biases.

She also cited an experiment in a Colorado federal court in which lawyers give short opening statements to the entire jury pool before voir dire. Potential jurors can then answer specific questions about their views on the facts of a case and the people involved. "It's speeding up and improving jury selection," she said.

"What I'm afraid of is that everyone will say, 'Oh, well, let's just give up on the peremptory,'" Babcock added. "Let's try to embrace [the decision] and make something out if it, rather than make it an evil thing--the end of the peremptory challenge, which would be a very, very bad thing for criminal defendants."