Sex and the Peremptory Strike: An Empirical Analysis
Hightower, Susan, Stanford Law Review
When the Supreme Court decided J.E.B. v. Alabama ex rel. T.B.(1) in 1994, extending equal protection in jury selection to gender, critics were quick to conclude that the Court had effectively killed off the venerable peremptory challenge. The peremptory had been ailing, some commentators believed, since the Court's decision eight years earlier in Batson v. Kentucky,(2) which for the first time limited a litigator's previously unfettered discretion to strike whomever she pleased, without explanation.
Building on the criticism of Batson, defenders of the traditional peremptory challenge needed to look no further than the Court's opinion in J.E.B. itself to find reason to worry. Although concurring with the 6-3 majority, Justice O'Connor noted that the decision was not "costless."(3) Justice Scalia's dissent went much further, warning that the decision would spawn a wave of collateral litigation attacking the use of peremptories, burdening the courts much more than Batson because every case could involve a gender-based claim while demographics should make race-based challenges less frequent.(4) Furthermore, Justice Scalia predicted that the Court would expand its holding in J.E.B. to numerous other categories of discrimination in jury selection.(5)
After the first five years of application by the courts, the fears about J.E.B.'s legacy appear to have been vastly overstated. A survey of decided cases revealed only twenty-three published cases throughout the entire U.S. federal and state court systems that were reversed as a result of J.E.B. violations. A total of twenty-seven cases were remanded for hearings based on a claim of gender discrimination during voir dire; among those, only two reported cases were reversed after the heating based on J.E.B.(6)
If attempts to comply with J.E.B. and prevent discrimination against women in jury service have thrown the court system into turmoil, it is not revealed in the case law. Indeed, it should be noted that Justice Blackmun's opinion in J.E.B. listed nine states that already had extended Batson to gender based on their own state constitutions, the U.S. Constitution, or both;(7) the Ninth Circuit also had done so, although three circuits had reached the contrary conclusion.(8) This made the change less sweeping than it might have been, though its impact has been disproportionate in states such as Alabama that had explicitly declined to extend Batson to gender before J.E.B.(9)
In this note, I will not trace the history of the peremptory strike or the Supreme Court's road to J.E.B.; nor will I analyze the Court's reasoning in the decision. Many commentators covered that ground in the immediate aftermath of the ruling.(10) Instead, this note is the first comprehensive analysis of J.E.B.'s impact during its first five years in practice.(11) Part I sketches the reasons legal analysts supported and opposed J.E.B., focusing on critics' fears about the decision's implementation. Part II details the results of my study of more than 450 state and federal cases interpreting J.E.B. Part III discusses the implications of these results and suggests further research.
I. FROM SIDESHOW TO MAIN EVENT
Once the Supreme Court eliminated the use of peremptory strikes based solely on race in Batson v. Kentucky,(12) some commentators proposed possible reforms of the use of peremptories,(13) while others advocated banning them entirely.(14) Meanwhile, some scholars called for the extension of Batson to gender. Particularly influential was Professor Barbara Allen Babcock's work, A Place in the Palladium: Women's Rights and Jury Service,(15) which Justice Blackmun cited in his majority opinion in J.E.B.(16) Professor Babcock argued that equal protection analysis mandated Batson's extension to gender "[b]ecause the story of women's exclusion from jury service is not only analogous to the history of racial exclusion but also the same story growing out of the same historical period and events. …