The end of gender-based peremptory challenges.

Every lawyer knows that one of the most important phases in any trial is jury selection. After prospective jurors are questioned during voir dire, attorneys can exclude a person from the jury if there is "cause" to believe that he or she is likely to be biased. The law also has traditionally accorded each side a number of "peremptory challenges"--strikes of prospective jurors that can be exercised without articulating any reason or justification. Lawyers use experience and intuition in deciding which prospective jurors to keep and which to exclude. Inevitably, peremptory challenges are based on stereotypes using factors such as race, gender, age, occupation, and income to guess a person's likely behavior as a juror.

In Baston v. Kentucky, the U.S. Supreme Court held that the constitutional requirement for equal protection prohibits a prosecutor from exercising peremptory challenges based on race. (476 U.S. 79 (1986).) In subsequent cases, the Court reaffirmed and extended this holding. In Powers v. Ohio, the Court held that prospective jurors have a right to be free from race discrimination and that parties in a lawsuit have standing to raise their interests. (111 S. Ct. 1364 (1991).)

In Edmonson v. Leesville Concrete Co., the Supreme Court held that Batson applies in private civil litgation. (111 S. Ct. 2077 (1991).) The Court concluded that because the law authorizes peremptory challenges and because the court supervises the jury selection process, even peremptory challenges by private parties in civil cases are limited by the Constitution. In Georgia v. McCollum, the Court held that the Constitution prohibits criminal defendants from exercising peremptory challenges based on race. (112 S. Ct. 2348 (1992).)

In J.E.B. v. Alabama ex rel. T.B., the Supreme Court considered whether Batson should apply to prohibit gender-based peremptory challenges. (114 S. Ct. 1419 (1994).) The U.S. courts of appeals had split on the question, as had several state supreme courts. (See, e.g., United States v. De Gross, 913 F.2d 1417 (9th Cir. 1990) (extending Batson to gender); United States v. Nichols, 937 F.2d 1257 (7th Cir. 1991), cert. denied, 112 S. Ct. 989 (1992) (refusing to extend Batson to gender); Laidler v. State, 627 So. 2d 1263 (Fla. Dist. Ct. App. 1993) (extending Batson to gender); State v. Culver, 444 N.W.2d 662 (Neb. 1989) (refusing to extend Batson to gender).)

Facts of J.E.B. v. Alabama

The state of Alabama brought a civil action for paternity and child support on behalf of T.B., the mother of a minor child, against J.E.B. in the District Court of Jackson County, Alabama. Evidence at the hearing included a blood test that showed to a probability of 99.92 percent that J.E.B. was the child's father.

Also, T.B. testified that she and J.E.B. had a sexual relationship and that she had not been sexually involved with anyone else during the time the child was conceived. The court found that J.E.B. was the child's father, and it entered a child support order.

Under Alabama law, the district court's decisions are subject to de novo review in the circuit court where a jury is available. J.E.B. appealed under this procedure and requested a jury trial.

At the trial, a panel of 36 potential jurors--12 men and 24 women--was assembled. Three of the prospective jurors, including 2 of the men, were excused for cause. The state then used 9 of its 10 peremptory challenges to exclude men from the jury. J.E.B. struck the 1 remaining man on the panel and used the rest of his strikes to exclude women. The result was a jury that was entirely female.

Before the jury was empaneled, J.E.B. argued that the state had violated the Constitution by excluding prospective jurors based on gender. The district court rejected this challenge, and the all-female jury heard the case and found paternity. The court entered an order for J.E.B. to pay child support.

The Alabama Court of Appeals affirmed and the Alabama Supreme Court denied review. The U.S. Supreme Court granted review on the question of whether the state violates the Equal Protection Clause when it uses its peremptory jury strikes to exclude men from a jury.

The Court's Decision

In an opinion by Justice Harry Blackmun, the Court ruled that "gender, like race, is an unconstitutional proxy for juror competence and imparticlity." (J.E.B., 114 S. Ct. 1419, 1421.) Justice Blackmun reviewed the history of discrimination against women in general and especially in the judicial system.

For example, many states excluded women from all jury service on the grounds that "women were thought to be too fragile and virginal to withstand the polluted courtroom atmosphere." (Id. at 1423.) In fact, it was not until 1975, in Taylor v. Louisiana, that the Court held that state laws could not treat women differently from men with regard to jury service. (419 U.S. 522 (1975).)

Justice Blackmun concluded that the history of gender discrimination is similar to the legacy of racism in the judicial system and that a peremptory challenge on either ground is unacceptable. He wrote, "Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process." (J.E.B., 114 S. Ct. 1419, 1427.)

Justice Sandra Day O'Connor, in a concurring opinion, argued that only the government should be precluded from excluding a prospective juror based on gender. She contended, as she had argued in earlier cases, such as Edmonson and McCollum, that "the Equal Protection Clause does not limit the exercise of peremptory challenges by private civil litigants and criminal defendants." (Id. at 1433.) It is unlikely, however, that this position will be accepted by a majority of the Court. In both Edmonson and McCollum, the Court already has held that Batson applies to peremptory challenges by private litigants as well as criminal defendants.

Justice Antonin Scalia wrote a dissenting opinion in which Chief Justice William Rehnquist and Justice Clarence Thomas joined. Chief Justice Rehnquist also wrote a separate dissenting opinion. The dissents emphasized the importance of peremptory challenges to ensuring a fair trial. The dissenting opinions also contended that meaningful peremptory challenges require that attorneys be able to exclude prospective jurors for any reason they choose without any judicial oversight. (Id. at 1436-38.)

Impact of J.E.B.

The Court's decision unequivocally holds that Batson and its progeny apply to gender-based peremptory challenges. In other words, in both criminal and civil cases, no attorney for any side may exclude prospective jurors based on race or gender.

An inevitable question after J.E.B. is whether Batson will be extended to prevent peremptory challenges based on other characteristics, such as age, income, and disability. Justice Blackmun explicitly addressed this question. Writing for the Court, he said, "Parties may also exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review." (Id. at 1429.)

Thus far, the Supreme Court has approved heightened scrutiny only for discrimination based on race, national origin, religion, gender, legitimacy, and alien status. Because aliens are usually excluded by law from jury service and because legitimacy is rarely a criteria used by attorneys in exercising peremptory challenges, the only likely further extension of Batson will be to prevent strikes of prospective jurors based on their religion.

Should Batson Apply to Gender?

There are two major objections to the Court's decision in J.E.B. First, some commentators contend that gender is a useful predictor of a juror's likely views and behavior and that therefore this is a legitimate basis for exercising peremptory challenges.

For example, some feminist scholars have argued that in our society men and women are different. They say that there are real differences in what evidence they recall, how they perceive the facts, and how they reason. (See, e.g., Deborah L. Forman, What Difference Does It Make?: Gender and Jury Selection, 2 UCLA Women's L.J. 35, at 53-54 (1992); Nancy S. Marder, Note, Gender Dynamics and Jury Deliberations, 96 Yale L.J. 593, 600 (1987).) If because of socialization and experience men and women are different, then is gender an appropriate basis for lawyers to use in jury selection?

In her opinion concurring in the judgment, Justice O'Connor made exactly this point. She noted that a "plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors." (J.E.B., 114 S. Ct. 1419, 1432 (citation omitted).) Similarly, Justice O'Connor observed that in cases involving "sexual harassment, child custody, or spousal or child abuse, one need not be a sexist to share the intuition that ... a person's gender and resulting life experience will be relevant to his or her view of the case." (Id.)

On the other hand, Justice Blackmun contended that even if there is some basis for gender stereotypes in jury selection, this does not justify allowing peremptory challenges based on sex. He explained that it is well established that "gender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization." (Id. at 1427 n.11.) From this view, prospective jurors should be excluded based on the beliefs they express during voir dire and not on the basis of views that are assumed because of gender stereotypes.

A second criticism of the Court's decision in J.E.B. is that it will make peremptory challenges unworkable and perhaps even pave the way for their ultimate elimination. The Court never has clearly explained what must be demonstrated to establish a prima facie case of discrimination under Batson. Without a doubt, J.E.B. will dramatically expand the number of Batson challenges brought and the amount of time courts must spend in voir dire.

On the other hand, although Batson has significantly changed trial practice, it has not proven unworkable. Likewise, Justice Blackmun noted that "the experience in the many jurisdictions that have barred gender-based challenges belies the claim that litigants and trial courts are incapable of complying with a rule barring strikes based on gender." (Id. at 1429.)

No decision from the Supreme Court this Term will have more daily impact on trial practice than J.E.B. v. Alabama. One thing that is certain is that this is not going to be the Court's last decision on peremptory challenges.

Many basic questions remain unanswered. What must be demonstrated to show a prima facie case of discrimination? What justifications are sufficient to allow what appear to be race- or gender-based peremptory challenges? Lawyers and trial judges will struggle with these questions and with how to implement J.E.B. for years to come.