Baston v. Kentucky Slip Opinion

    (Slip Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been pre­
pared bv the Reporter of Decisions for the convenience of the reader. See 
United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BATSON v. KENTUCKY

CERTIORARI TO THE SUPREME COURT OF KENTUCKY

No. 84-6263. Argued December 12, 1985—Decided April 30, 1986

During the criminal trial in a Kentucky state court of petitioner, a black 
rpan, the judge conducted voir dire examination of the jury venire and 
excused certain jurors for cause. The prosecutor then used his peremp­
tory challenges to strike all four black persons on the venire, and a jury 
composed only of white persons was selected. Defense counsel moved 
to discharge the jury on the ground that the prosecutor’s removal of the 
black veniremen violated petitioner’s rights under the Sixth and Four­
teenth Amendments to a jury drawn from a cross section of the commu­
nity, and under the Fourteenth Amendment to equal protection of the 
laws. Without expressly ruling on petitioner’s request for a hearing, 
the trial judge denied the motion, and the jury ultimately convicted peti­
tioner. Affirming the conviction, the Kentucky Supreme Court ob­
served that recently, in another case, it had relied on Swain v. Alabama, 
380 U. S. 202, and had held that a defendant alleging lack of a fair cross 
section must demonstrate systematic exclusion of a group of jurors from 
the venire.

Held:
1. The principle announced in Strauder v. West Virginia, 100 U. S. 

303, that a State denies a black defendant equal protection when it puts 
him on trial before a jury from which members of his race have been pur­
posefully excluded, is reaffirmed. Pp. 3-9.

(a) A defendant has no right to a petit jury composed in whole or in 
part of persons of his own race. Strauder v. West Virginia, 100 U. S. 
303, 305. However, the Equal Protection Clause guarantees the de­
fendant that the State will not exclude members of his race from the jury 
venire on account of race, or on the false assumption that members of his 
race as a group are not qualified to serve as jurors. By denying a per­
son participation in jury  service on account of his race, the State also un­
constitutionally discriminates against the excluded juror. Moreover,

1



II BATSON v. KENTUCKY

Syllabus

selection procedures that purposefully exclude black persons from juries 
undermine public confidence in the fairness of our system of justice. 
Pp. 4-7.

(b) The same equal protection principles as are applied to determine 
whether there is discrimination in selecting the venire also govern the 
State’s use of peremptory challenges to strike individual jurors from the 
petit jury. Although a prosecutor ordinarily is entitled to exercise pe­
remptory challenges for any reason, as long as that reason is related to 
his view concerning the outcome of the case to be tried, the Equal Pro­
tection Clause forbids the prosecutor to challenge potential jurors solely 
on account of their race or on the assumption that black jurors as a group 
will be unable impartially to consider the State’s case against a black de­
fendant. Pp. 7-9.

2. The portion of Swain v. Alabama, supra, concerning the eviden­
tiary burden placed on a defendant who claims that he has been denied 
equal protection through the State’s discriminatory use of peremptory 
challenges is rejected. In Swain, it was held that a black defendant 
could make out a prima facie case of purposeful discrimination on proof 
that the peremptory challenge system as a whole was being perverted. 
Evidence offered by the defendant in Swain did not meet that standard 
because it did not demonstrate the circumstances under which prosecu­
tors in the jurisdiction were responsible for striking black jurors beyond 
the facts of the defendant’s case. This evidentiary formulation is incon­
sistent with equal protection standards subsequently developed in deci­
sions relating to selection of the jury venire. A defendant may make a 
prima facie showing of purposeful racial discrimination in selection of the 
venire by relying solely on the facts concerning its selection in his case. 
Pp. 9-15.

3. A defendant may establish a prima facie case of purposeful dis­
crimination solely on evidence concerning the prosecutor’s exercise of pe­
remptory challenges at the defendant’s trial. The defendant first must 
show that he is a member of a cognizable racial group, and that the pros­
ecutor has exercised peremptory challenges to remove from the venire 
members of the defendant’s race. The defendant may also rely on the 
fact that peremptory challenges constitute a jury selection practice that 
permits those to discriminate who are of a mind to discriminate. Fi­
nally, the defendant must show that such facts and any other relevant 
circumstances raise an inference that the prosecutor used peremptory 
challenges to exclude the veniremen from the petit jury on account of 
their race. Once the defendant makes a prima facie showing, the bur­
den shifts to the State to come forward with a neutral explanation for 
challenging black jurors. The prosecutor may not rebut a prima facie 
showing by stating that he challenged the jurors on the assumption that



BATSON v. KENTUCKY in

Syllabus

they would be partial to the defendant because of their shared race or by 
affirming his good faith in individual selections. Pp. 15-18.

4. While the peremptory challenge occupies an important position in 
trial procedures, the above-stated principles will not undermine the con­
tribution that the challenge generally makes to the administration of jus­
tice. Nor will application of such principles create serious adminis­
trative difficulties. Pp. 18-19.

5. Because the trial court here flatly rejected petitioner’s objection to 
the prosecutor’s removal of all black persons on the venire without re­
quiring the prosecutor to explain his action, the case is remanded for fur­
ther proceedings. Pp. 19-20.

Reversed and remanded.

Powell, J., delivered the opinion of the Court, in which Brennan, 
White , Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. 
White and Marshall, JJ., filed concurring opinions. Stevens, J., filed 
a concurring opinion, in which Brennan, J., joined. O’Connor, J., filed 
a concurring opinion. BURGER, C. J., filed a dissenting opinion, in which 
Rehnquist, J., joined. Rehnquist, J., filed a dissenting opinion, in 
which Burger, C. J ., joined.



NOTICE: This opinion is subject to formal revision before publication in the 
preliminary print of the United States Reports. Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order 
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 84-6263

JAMES KIRKLAND BATSON, PETITIONER 
v. KENTUCKY

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF KENTUCKY

[April 30, 1986]

J ustice Powell delivered the opinion of the Court.
This case requires us to reexamine that portion of Swain v. 

Alabama, 380 U. S. 202 (1965), concerning the evidentiary 
burden placed or a criminal defendant who claims that he has 
been denied equal protection through the State’s use of pe­
remptory challenges to exclude members of his race from the 
petit jury .1

1 Following the lead of a number of state courts construing their state’s 
constitution, two federal Courts of Appeals recently have accepted the 
view that peremptory challenges used to strike black jurors in a particular 
case may violate the Sixth Amendment. Booker v. Jabe, 775 F. 2d 762 
(CA6 1985), cert, pending, No. 85-1028; McCray v. Abrams, 750 F. 2d 
1113 (CA2 1984), cert, pending, No. 84-1426. See People v. Wheeler, 22 
Cal. 3d 258, 583 P. 2d 748 (1978); Riley v. State, 496 A. 2d 997, 1009-1013 
(Del. 1985); State v. Neil, 457 So. 2d 481 (Fla. 1984); Commonwealth v. 
Soares, 377 Mass. 461, 387 N. E. 2d 499, cert, denied, 444 U. S. 881 (1979). 
See also State v. Crespin, 94 N. M. 486, 612 P. 2d 716 (App. 1980). Other 
Courts of Appeals have rejected that position, adhering to the requirement 
that a defendant must prove systematic exclusion of blacks from the petit 
jury to establish a constitutional violation. United States v. Childress, 
715 F. 2d 1313 (CA8 1983) (en banc), cert, denied, 464 U. S. 1063 (1984); 
United States v. Whitfield, 715 F. 2d 145, 147 (CA4 1983). See Beed v. 
State, 271 Ark. 526, 530-531, 609 S. W. 2d 898, 903 (1980); Blackwell v. 
State, 248 Ga. 138, 281 S. E. 2d 599, 599-600 (1981); Gilliard v. State, 428 
So. 2d 576, 579 (Miss.), cert, denied, 464 U. S. 867 (1983); People v. 
McCray, 57 N. Y. 2d 542, 546-549, 443 N. E. 2d 915, 916-919 (1982), cert, 
denied, 461 U. S. 961 (1983); State v. Lynch, 300 N. C. 534, 546-547, 268



2 BATSON v. KENTUCKY

I
Petitioner, a black man, was indicted in Kentucky on 

charges of second-degree burglary and receipt of stolen 
goods. On the first day of trial in Jefferson Circuit Court, 
the judge conducted voir dire examination of the venire, ex­
cused certain jurors for cause, and permitted the parties to 
exercise peremptory challenges.2 The prosecutor used his 
peremptory challenges to strike all four black persons on the 
venire, and a jury composed only of white persons was se­
lected. Defense counsel moved to discharge the jury before 
it was sworn on the ground that the prosecutor’s removal of 
the black veniremen violated petitioner’s rights under the 
Sixth and Fourteenth Amendments to a jury drawn from a 
cross-section of the community, and under the Fourteenth 
Amendment to equal protection of the laws. Counsel re­
quested a hearing on his motion. Without expressly ruling 
on the request for a hearing, the trial judge observed that the 
parties were entitled to use their peremptory challenges to 
“strike anybody they want to.” The judge then denied peti­
tioner’s motion, reasoning that the cross-section requirement 
applies only to selection of the venire and not to selection of 
the petit jury itself.

S. E. 2d 161, 168-169 (1980). Federal Courts of Appeals also have dis­
agreed over the circumstances under which supervisory power may be 
used to scrutinize the prosecutor’s exercise of peremptory challenges to
strike blacks from the venire. Compare United States v. Leslie ,----- F.
2d —— (CA5 1986) (en banc), with United States v. Jackson, 696 F. 2d 
578, 592-593 (CA8 1982), cert, denied, 460 U. S. 1073 (1983). See also 
United States v. McDaniels, 379 F. Supp. 1243 (ED La. 1974).

2 The Kentucky Rules of Criminal Procedure authorize the trial court to 
permit counsel to conduct voir dire examination or to conduct the examina­
tion itself. Ky. Rule Crim. Proc. 9.38. After jurors have been excused 
for cause, the parties exercise their peremptory challenges simultaneously 
by striking names from a list of qualified jurors equal to the number to be 
seated plus the number of allowable peremptory challenges. Rule 9.36. 
Since the offense charged in this case was a felony, and an alternate juror 
was called, the prosecutor was entitled to six peremptory challenges, and 
defense counsel to nine. Rule 9.40.



BATSON v. KENTUCKY 3

The jury convicted petitioner on both counts. On appeal 
to the Supreme Court of Kentucky, petitioner pressed, 
among other claims, the argument concerning the prosecu­
tor’s use of peremptory challenges. Conceding that Swain 
v. Alabama, supra, apparently foreclosed an equal protec­
tion claim based solely on the prosecutor’s conduct in this 
case, petitioner urged the court to follow decisions of other 
states, People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 
(1978); Commonwealth v. Soares, 377 Mass. 461, 387 N. E. 
2d 499, cert, denied, 444 U. S. 881 (1979), and to hold that 
such conduct violated his rights under the Sixth Amendment 
and Section 11 of the Kentucky Constitution to a jury drawn 
from a cross-section of the community. Petitioner also con­
tended that the facts showed that the prosecutor had en­
gaged in a “pattern” of discriminatory challenges in this case 
and established an equal protection violation under Swain.

The Supreme Court of Kentucky affirmed. In a single 
paragraph, the court declined petitioner’s invitation to adopt 
the reasoning of People v. Wheeler, supra, and Common­
wealth v. Soares, supra. The court observed that it recently 
had reaffirmed its reliance on Swain, and had held that a de­
fendant alleging lack of a fair cross-section must demonstrate 
systematic exclusion of a group of jurors from the venire. 
See Commonwealth v. McFerron, 680 S. W. 2d 924 (1984).
We granted certiorari, 471 U. S. -----  (1985), and now
reverse.

II
In Swain v. Alabama, this Court recognized that a 

“State’s purposeful or deliberate denial to Negroes on ac­
count of race of participation as jurors in the administration 
of justice violates the Equal Protection Clause.” 380 U. S., 
at 203-204. This principle has been “consistently and re­
peatedly” reaffirmed, id., at 204, in numerous decisions of 
this Court both preceding and following Swain.3 We re-

3 See, e. g., Strauder v. West Virginia, 100 U. S. 303 (1880); Neal v.



4 BATSON v. KENTUCKY

affirm the principle today.4

A
More than a century ago, the Court decided that the State 

denies a black defendant equal protection of the laws when it 
puts him on trial before a jury from which members of his 
race have been purposefully excluded. Strauder v. West 
Virginia, 100 U. S. 303 (1880). That decision laid the foun­
dation for the Court’s unceasing efforts to eradicate racial 
discrimination in the procedures used to select the venire 
from which individual jurors are drawn. In Strauder, the 
Court explained that the central concern of the recently rati­
fied Fourteenth Amendment was to put an end to govern-

Delaware, 103 U. S. 370 (1881); Norris v. Alabama, 294 U. S. 587 (1935); 
Hollins v. Oklahoma, 295 U. S. 394 (1935) (per curiam); Pierre v. Louisi­
ana, 306 U. S. 354 (1939); Patton v. Mississippi, 332 U. S. 463 (1947); 
Avery v. Georgia, 345 U. S. 559 (1953); Hernandez v. Texas, 347 U. S. 475 
(1954); Whitus v. Georgia, 385 U. S. 545 (1967); Jones v. Georgia, 389 
U. S. 24 (1967) (per curiam); Carter v. Jury Commission of Greene 
County, 396 U. S. 320 (1970); Castaneda v. Partida, 430 U. S. 482 (1977); 
Rose v. Mitchell, 443 U. S. 545 (1979); Vasquez v. Hillery, 474 U. S. —— 
(1986).

The basic principles prohibiting exclusion of persons from participation 
in jury service on account of their race “are essentially the same for grand 
juries and for petit juries.” Alexander v. Louisiana, 405 U. S. 625, 626, 
n. 3 (1972); see Norris v. Alabama, 294 U. S. 587, 589 (1935). These prin­
ciples are reinforced by the criminal laws of the United States. 18 
U. S. C. §243.

4 In this Court, petitioner has argued that the prosecutor’s conduct vio­
lated his rights under the Sixth and Fourteenth Amendments to an impar­
tial jury and to a jury drawn from a cross-section of the community. Peti­
tioner has framed his argument in these terms in an apparent effort to 
avoid inviting the Court directly to reconsider one of its own precedents. 
On the other hand, the State has insisted that petitioner is claiming a de­
nial of equal protection and that we must reconsider Swain to find a con­
stitutional violation on this record. We agree with the State that resolu­
tion of petitioner’s claim properly turns on application of equal protection 
principles and express no view on the merits of any of petitioner’s Sixth 
Amendment arguments.



BATSON v. KENTUCKY 5

mental discrimination on account of race. Id,., at 306-307. 
Exclusion of black citizens from service as jurors constitutes 
a primary example of the evil the Fourteenth Amendment 
was designed to cure.

In holding that racial discrimination in jury selection of­
fends the Equal Protection Clause, the Court in Strauder 
recognized, however, that a defendant has no right to a “petit 
jury composed in whole or in part of persons of his own race.” 
Id., at 305.5 “The number of our races and nationalities 
stands in the way of evolution of such a conception” of the de­
mand of equal protection. Akins v. Texas, 325 U. S. 398, 
403 (1945).6 But the defendant does have the right to be 
tried by a jury whose members are selected pursuant to non- 
discriminatory criteria. Martin v. Texas, 200 U. S. 316, 321 
(1906); Ex parte Virginia, 100 U. S. 339, 345 (1880). The 
Equal Protection Clause guarantees the defendant that the 
State will not exclude members of his race from the jury ve­
nire on account of race, Strauder, supra, at 305,7 or on the 
false assumption that members of his race as a group are not 
qualified to serve as jurors, see Norris v. Alabama, 294 
U. S. 587, 599 (1935); Neal v. Delaware, 103 U. S. 370, 397 
(1881).

5 See Hernandez v. Texas, supra, at 482; Cassell v. Texas, 339 U. S. 
282, 286-287 (1950) (plurality opinion); Akins v. Texas, 325 U. S. 398, 403 
(1945); Martin v. Texas, 200 U. S. 316, 321 (1906); Neal v. Delaware, 
supra, at 394.

6 Similarly, though the Sixth Amendment guarantees that the petit jury 
will be selected from a pool of names representing a cross-section of the 
community, Taylor v. Louisiana, 419 U. S. 522 (1975), we have never held 
that the Sixth Amendment requires that “petit juries actually chosen must 
mirror the community and reflect the various distinctive groups in the 
population,” id., at 538. Indeed, it would be impossible to apply a concept 
of proportional representation to the petit jury in view of the heteroge­
neous nature of our society. Such impossibility is illustrated by the 
Court’s holding that a jury of six persons is not unconstitutional. Wil­
liams v. Florida, 399 U. S. 78, 102-103 (1970).

7 See Hernandez v. Texas, supra, at 482; Cassell v. Texas, supra, at 
287; Akins  v. Texas, supra, at 403; Neal v. Delaware, 103 U. S., at 394.



6 BATSON v. KENTUCKY

Purposeful racial discrimination in selection of the venire 
violates a defendant’s right to equal protection because it de­
nies him the protection that a trial by jury is intended to se­
cure. “The very idea of a jury is a body . . . composed of the 
peers or equals of the person whose rights it is selected or 
summoned to determine; that is, of his neighbors, fellows, as­
sociates, persons having the same legal status in society as 
that which he holds.” Strauder, supra, at 308; see Carter v. 
Jury Commission of Greene County, 396 U. S. 320, 330 
(1970). The petit jury has occupied a central position in our 
system of justice by safeguarding a person accused of crime 
against the arbitrary exercise of power by prosecutor or 
judge. Duncan v. Louisiana, 391 U. S. 145, 156 (1968).8 
Those on the venire must be “indifferently chosen,”9 to se­
cure the defendant’s right under the Fourteenth Amendment 
to “protection of life and liberty against race or color preju­
dice.” Strauder, supra, at 309.

Racial discrimination in selection of jurors harms not only 
the accused whose life or liberty they are summoned to try.

8 See Taylor v. Louisiana, supra, at 530; Williams v. Florida, supra, 
at 100. See also Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1 
(1966).

In Duncan v. Louisiana, decided after Swain, the Court concluded that 
the right to trial by jury in criminal cases was such a fundamental feature 
of the American system of justice that it was protected against state action 
by the Due Process Clause of the Fourteenth Amendment. 391 U. S., at 
147-158. The Court emphasized that a defendant’s right to be tried by a 
jury of his peers is designed “to prevent oppression by the Government.” 
Id., at 155, 156-157. For a jury to perform its intended function as a 
check on official power, it must be a body drawn from the community. 
Duncan v. Louisiana, supra, at 156; Glasser v. United States, 315 U. S. 
60, 86-88 (1942). By compromising the representative quality of the jury, 
discriminatory selection procedures make “juries ready weapons for offi­
cials to oppress those accused individuals who by chance are numbered 
among unpopular or inarticulate minorities.” Akins v. Texas, 325 U. S., 
at 408 (Murphy, J ., dissenting).

9 4 W. Blackstone, Commentaries 349 (Cooley ed. 1899) (quoted in Dun­
can v. Lousiana, supra, at 152).



BATSON v. KENTUCKY 7

Competence to serve as a juror ultimately depends on an as­
sessment of individual qualifications and ability impartially to 
consider evidence presented at a trial. See Thiel v. South­
ern Pacific Co., 328 U. S. 217, 223-224 (1946). A person’s 
race simply “is unrelated to his fitness as a juror.” Id,., at 
227 (Frankfurter, J ., dissenting). As long ago as Strauder, 
therefore, the Court recognized that by denying a person 
participation in jury service on account of his race, the State 
unconstitutionally discriminated against the excluded juror. 
100 U. S., at 308; see Carter v. Jury Commission of Greene 
County, supra, at 329-330; Neal v. Delaware, supra, at 386.

The harm from discriminatory jury selection extends be­
yond that inflicted on the defendant and the excluded juror to 
touch the entire community. Selection procedures that pur­
posefully exclude black persons from juries undermine public 
confidence in the fairness of our system of justice. See 
Ballard v. United States, 329 U. S. 187, 195 (1946); McCray 
v. New York, 461 U. S. 961, 968 (1983) (Marshall, J., dis­
senting from denial of certiorari). Discrimination within the 
judicial system is most pernicious because it is “a stimulant to 
that race prejudice which is an impediment to securing to 
[black citizens] that equal justice which the law aims to se­
cure to all others.” Strauder, supra, at 308.

B
In Strauder, the Court invalidated a state statute that pro­

vided that only white men could serve as jurors. 100 U. S., 
at 305. We can be confident that no state now has such a 
law. The Constitution requires, however, that we look be­
yond the face of the statute defining juror qualifications and 
also consider challenged selection practices to afford “protec­
tion against action of the State through its administrative of­
ficers in effecting the prohibited discrimination.” Norris v. 
Alabama, 294 U. S., at 589; see Hernandez v. Texas, 347 
U. S. 475, 478-479 (1954); Ex parte Virginia, 100 U. S., at 
346-347. Thus, the Court has found a denial of equal protec-



8 BATSON v. KENTUCKY

tion where the procedures implementing a neutral statute op­
erated to exclude persons from the venire on racial grounds,10 
and has made clear that the Constitution prohibits all forms 
of purposeful racial discrimination in selection of jurors.11 
While decisions of this Court have been concerned largely 
with discrimination during selection of the venire, the prin­
ciples announced there also forbid discrimination on account 
of race in selection of the petit jury. Since the Fourteenth 
Amendment protects an accused throughout the proceedings 
bringing him to justice, Hill v. Texas, 316 U. S. 400, 406 
(1942), the State may not draw up its jury lists pursuant to 
neutral procedures but then resort to discrimination at “other 
stages in the selection process,” Avery v. Georgia, 345 U. S. 
559, 562 (1953); see McCray v. New York, supra, at 965, 968 
(Marshall, J., dissenting from denial of certiorari); see also 
Alexander v. Louisiana, 405 U. S. 625, 632 (1972).

Accordingly, the component of the jury selection process at 
issue here, the State’s privilege to strike individual jurors 
through peremptory challenges, is subject to the commands 
of the Equal Protection Clause.12 Although a prosecutor or-

nE. g., Sims v. Georgia, 389 U. S. 404, 407 (1967) (per curiam); Whitus 
v. Georgia, 385 U. S., at 548-549; Avery v. Georgia, 345 U. S., at 561.

11 See Norris v. Alabama, 294 U. S., at 589; Martin v. Texas, 200 U. S., 
at 319; Neal v. Delaware, 103 U. S., at 394, 397.

12 We express no views on whether the Constitution imposes any limit on 
the exercise of peremptory challenges by defense counsel.

Nor do we express any views on the techniques used by lawyers who 
seek to obtain information about the community in which a case is to be 
tried, and about members of the venire from which the jury is likely to be 
drawn. See generally J. Van Dyke, Jury Selection Procedures: Our Un­
certain Commitment to Representative Panels, 183-189 (1977). Prior to 
voir dire examination, which serves as the basis for exercise of challenges, 
lawyers wish to know as much as possible about prospective jurors, includ­
ing their age, education, employment, and economic status, so that they 
can ensure selection of jurors who at least have an open mind about the 
case. In some jurisdictions, where a pool of jurors serves for a substantial 
period of time, see J. Van Dyke, supra, at 116-118, counsel also may seek 
to learn which members of the pool served on juries in other cases and the



BATSON v. KENTUCKY 9

dinarily is entitled to exercise permitted peremptory chal­
lenges “for any reason at all, as long as that reason is related, 
to his view concerning the outcome” of the case to be tried, 
United States v. Robinson, 421 F. Supp. 467, 473 (Conn. 
1976), mandamus granted sub nom. United States v. New­
man, 549 F. 2d 240 (CA2 1977), the Equal Protection Clause 
forbids the prosecutor to challenge potential jurors solely on 
account of their race or on the assumption that black jurors as 
a group will be unable impartially to consider the State’s case 
against a black defendant.

III
The principles announced in Strauder never have been 

questioned in any subsequent decision of this Court. 
Rather, the Court has been called upon repeatedly to review 
the application of those principles to particular facts.18 A re­
curring question in these cases, as in any case alleging a 
violation of the Equal Protection Clause, was whether the 
defendant had met his burden of proving purposeful dis­
crimination on the part of the State. Whitus v. Georgia, 385 
U. S., at 550; Hernandez v. Texas, 347 U. S., at 478-481; 
Akins v. Texas, 325 U. S., at 403-404; Martin v. Texas, 200 
U. S. 316 (1906). That question also was at the heart of the 
portion of Swain v. Alabama we reexamine today.14

outcome of those cases. Counsel even may employ professional investiga­
tors to interview persons who have served on a particular petit jury. We 
have had no occasion to consider particularly this practice. Of course, 
counsel’s effort to obtain possibly relevant information about prospective 
jurors is to be distinguished from the practice at issue here.

13 See, e. g., Vasquez v. Hillery, 474 U. S .----(1986); Rose v. Mitchell,
443 U. S. 545 (1979); Castaneda v. Partida, 430 U. S. 482 (1977); Alexan­
der v. Louisiana, 405 U. S. 625, 628-629 (1972); Whitus v. Georgia, 385 
U. S. 545, 549-550 (1967); Swain v. Alabama, supra, at 205; Coleman v. 
Alabama, 377 U. S. 129 (1964); Norris v. Alabama, 294 U. S. 587, 589 
(1935); Neal v. Delaware, 103 U. S., at 394.

“ The decision in Swain has been the subject of extensive commentary. 
Some authors have argued that the Court should reconsider the decision. 
E. g., J. Van Dyke, Jury Selection Procedures: Our Uncertain Commit-



10 BATSON v. KENTUCKY

A
Swain required the Court to decide, among other issues, 

whether a black defendant was denied equal protection by 
the State’s exercise of peremptory challenges to exclude 
members of his race from the petit jury. 380 U. S., at 
209-210. The record in Swain showed that the prosecutor 
had used the State’s peremptory challenges to strike the six 
black persons included on the petit jury venire. Id., at 210. 
While rejecting the defendant’s claim for failure to prove pur­
poseful discrimination, the Court nonetheless indicated that 
the Equal Protection Clause placed some limits on the State’s 
exercise of peremptory challenges. Id., at 222-224.

The Court sought to accommodate the prosecutor’s histori­
cal privilege of peremptory challenge free of judicial control, 
id., at 214-220, and the constitutional prohibition on exclu­
sion of persons from jury service on account of race, id., at 
222-224. While the Constitution does not confer a right to 
peremptory challenges, id., at 219 (citing Stilson v. United 
States, 250 U. S. 583, 586 (1919)), those challenges tradition­
ally have been viewed as one means of assuring the selection 
of a qualified and unbiased jury, 380 U. S., at 219.15 To pre-

ment to Representative Panels 166-167 (1977); Imlay, Federal Jury Re, 
ormation: Saving a Democratic Institution, 6 Loyola (LA) L. Rev. 247, 
268-270 (1973); Kuhn, Jury Discrimination: The Next Phase, 41 S. Cal. L. 
Rev. 235, 283-303 (1968); Note, Rethinking Limitations on the Peremptory 
Challenge, 85 Colum. L. Rev. 1357 (1985); Note, Peremptory Challenge— 
Systematic Exclusion of Prospective Jurors on the Basis of Race, 39 Miss. 
L. J. 157 (1967); Comment, Swain v. Alabama: A  Constitutional Blueprint 
for the Perpetuation of the All-White Jury, 52 Va. L. Rev. 1157 (1966). 
See also Johnson, Black Innocence and the White Jury, 83 Mich. L. Rev. 
1611 (1985).

On the other hand, some commentators have argued that we should ad­
here to Swain. See Saltzburg & Powers, Peremptory Challenges and the 
Clash Between Impartiality and Group Representation, 41 Md. L. Rev. 
337 (1982).

15 In Swain, the Court reviewed the “very old credentials” of the pe­
remptory challenge system and noted the “long and widely held belief that



BATSON v. KENTUCKY 11

serve the peremptory nature of the prosecutor’s challenge, 
the Court in Swain declined to scrutinize his actions in a par­
ticular case by relying on a presumption that he properly ex­
ercised the State’s challenges. Id., at 221-222.

The Court went on to observe, however, that a state may 
not exercise its challenges in contravention of the Equal Pro­
tection Clause. It was impermissible for a prosecutor to use 
his challenges to exclude blacks from the jury “for reasons 
wholly unrelated to the outcome of the particular case on 
trial” or to deny to blacks “the same right and opportunity to 
participate in the administration of justice enjoyed by the 
white population.” Id., at 224. Accordingly, a black de­
fendant could make out a prima facie case of purposeful dis­
crimination on proof that the peremptory challenge system 
was “being perverted” in that manner. Ibid. For example, 
an inference of purposeful discrimination would be raised on 
evidence that a prosecutor, “in case after case, whatever the 
circumstances, whatever the crime and whoever the defend­
ant or the victim may be, is responsible for the removal of 
Negroes who have been selected as qualified jurors by the 
jury commissioners and who have survived challenges for 
cause, with the result that no Negroes ever serve on petit ju­
ries.” Id., at 223. Evidence offered by the defendant in 
Swain did not meet that standard. While the defendant 
showed that prosecutors in the jurisdiction had exercised 
their strikes to exclude blacks from the jury, he offered no 
proof of the circumstances under which prosecutors were re­
sponsible for striking black jurors beyond the facts of his own 
case. Id., at 224-228.

A number of lower courts following the teaching of Swain 
reasoned that proof of repeated striking of blacks over a num­
ber of cases was necessary to establish a violation of the

peremptory challenge is a necessary part of trial by jury.” 380 U. S., at 
219; see id., at 212-219.



12 BATSON v. KENTUCKY

Equal Protection Clause.16 Since this interpretation of Swain 
has placed on defendants a crippling burden of proof,17 pros­
ecutors’ peremptory challenges are now largely immune from 
constitutional scrutiny. For reasons that follow, we reject 
this evidentiary formulation as inconsistent with standards 
that have been developed since Swain for assessing a prima 
facie case under the Equal Protection Clause.

B
Since the decision in Swain, we have explained that our 

cases concerning selection of the venire reflect the general 
equal protection principle that the “invidious quality” of gov­
ernmental action claimed to be racially discriminatory “must 
ultimately be traced to a racially discriminatory purpose.” 
Washington v. Davis, 426 U. S. 229, 240 (1976). As in any 
equal protection case, the “burden is, of course,” on the de­
fendant who alleges discriminatory selection of the venire “to 
prove the existence of purposeful discrimination.” Whitus 
v. Georgia, 385 U. S., at 550 (citing Tarrance v. Florida, 188

16E. g., United States v. Jenkins, 701 F. 2d 850, 859-860 (CA10 1983); 
United States v. Boykin, 679 F. 2d 1240, 1245 (CA8 1982); United States v. 
Pearson, 448 F. 2d 1207, 1213-1218 (CA5 1971); Thigpen v. State, 49 Ala. 
App. 233, 270 So. 2d 666, 673 (1972); Jackson v. State, 245 Ark. 331, 432 
S. W. 2d 876, 878 (1968); Johnson v. Maryland, 9 Md. App. 143, 262 A. 2d 
792, 796-797 (1970); State v. Johnson, 125 N. J. Super. 438, 311 A. 2d 389 
(1973) (per curiam); State v. Shaw, 284 N. C. 366, 200 S. E. 2d 585 (1973).

17 See McCray v. Abrams, 750 F. 2d 1113, 1120, and n. 2 (CA2 1984), 
cert, pending, No. 84-1426. The lower courts have noted the practical dif­
ficulties of proving that the State systematically has exercised peremptory 
challenges to exclude blacks from the jury on account of race. As the 
Court of Appeals for the Fifth Circuit observed, the defendant would have 
to investigate, over a number of cases, the race of persons tried in the par­
ticular jurisdiction, the racial composition of the venire and petit jury, and 
the manner in which both parties exercised their peremptory challenges. 
United States v. Pearson, 448 F. 2d 1207, 1217 (CA5 1971). The court be­
lieved this burden to be “most difficult” to meet. Ibid. In jurisdictions 
where court records do not reflect the jurors’ race and where voir dire pro­
ceedings are not transcribed, the burden would be insurmountable. See 
People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748, 767-768 (1978).



BATSON v. KENTUCKY 13

U. S. 519 (1903)). In deciding if the defendant has carried 
his burden of persuasion, a court must undertake “a sensitive 
inquiry into such circumstantial and direct evidence of intent 
as may be available.” Village of Arlington Heights v. Met­
ropolitan Housing Development Corp., 429 U. S. 252, 266 
(1977). Circumstantial evidence of invidious intent may in­
clude proof of disproportionate impact. Washington v. 
Davis, 426 U. S., at 242. We have observed that under 
some circumstances proof of discriminatory impact “may for 
all practical purposes demonstrate unconstitutionality be­
cause in various circumstances the discrimination is very dif­
ficult to explain on nonracial grounds.” Ibid. For example, 
“total or seriously disproportionate exclusion of Negroes 
from jury venires,” ibid., “is itself such an ‘unequal applica­
tion of the law . . .  as to show intentional discrimination,’” 
id., at 241 (quoting Akins v. Texas, 325 U. S., at 404).

Moreover, since Swain, we have recognized that a black 
defendant alleging that members of his race have been imper­
missibly excluded from the venire may make out a prima 
facie case of purposeful discrimination by showing that the 
totality of the relevant facts gives rise to an inference of dis­
criminatory purpose. Washington v. Davis, supra, at 
239-242. Once the defendant makes the requisite showing, 
the burden shifts to the State to explain adequately the racial 
exclusion. Alexander v. Louisiana, 405 U. S., at 632. The 
State cannot meet this burden on mere general assertions 
that its officials did not discriminate or that they properly 
performed their official duties. See Alexander v. Louisi­
ana, supra, at 632; Jones v. Georgia, 389 U. S. 24, 25 (1967). 
Rather, the State must demonstrate that “permissible ra­
cially neutral selection criteria and procedures have produced 
the monochromatic result.” Alexander v. Louisiana, supra, 
at 632; see Washington v. Davis, supra, at 241.18

18 Our decisions in the context of Title VII “disparate treatment” have 
explained the operation of prima facie burden of proof rules. See McDon­
nell Douglas Corp. v. Green, 411 U. S. 792 (1973); Texas Department of



14 BATSON v. KENTUCKY

The showing necessary to establish a prima facie case of 
purposeful discrimination in selection of the venire may be 
discerned in this Court’s decisions. E. g., Castaneda v. 
Partida, 430 U. S. 482, 494-495 (1977); Alexander v. Louisi­
ana, supra, at 631-632. The defendant initially must show 
that he is a member of a racial group capable of being singled 
out for differential treatment. Castaneda v. Partida, 
supra, at 494. In combination with that evidence, a defend­
ant may then make a prima facie case by proving that in the 
particular jurisdiction members of his race have not been 
summoned for jury service over an extended period of time. 
Id., at 494. Proof of systematic exclusion from the venire 
raises an inference of purposeful discrimination because the 
“result bespeaks discrimination.” Hernandez v. Texas, 
supra, at 482; see Arlington Heights v. Metropolitan Hous­
ing Corp., supra, at 266.

Since the ultimate issue is whether the State has discrimi­
nated in selecting the defendant’s venire, however, the de­
fendant may establish a prima facie case “in other ways than 
by evidence of long-continued unexplained absence” of mem­
bers of his race “from many panels.” Cassell v. Texas, 339 
U. S. 282, 290 (1950) (plurality opinion). In cases involving 
the venire, this Court has found a prima facie case on proof 
that members of the defendant’s race were substantially un­
derrepresented on the venire from which his jury was drawn, 
and that the venire was selected under a practice providing 
“the opportunity for discrimination.” Whitus v. Georgia, 
385 U. S., at 552; see Castaneda v. Partida, supra, at 494; 
Washington v. Davis, supra, at 241; Alexander v. Louisi­
ana, supra, at 629-631. This combination of factors raises 
the necessary inference of purposeful discrimination because

Community Affairs v. Burdine, 450 U. S. 248 (1981); United States Postal 
Service Board of Governors v. Aikens, 460 U. S. 711 (1983). The party 
alleging that he has been the victim of intentional discrimination carries the 
ultimate burden of persuasion. Texas Department of Community Affairs 
v. Burdine, supra, at 252-256.



BATSON v. KENTUCKY 15

the Court has declined to attribute to chance the absence of 
black citizens on a particular jury array where the selection 
mechanism is subject to abuse. When circumstances sug­
gest the need, the trial court must undertake a “factual in­
quiry” that “takes into account all possible explanatory fac­
tors” in the particular case. Alexander v. Louisiana, supra, 
at 630.

Thus, since the decision in Swain, this Court has recog­
nized that a defendant may make a prima facie showing of 
purposeful racial discrimination in selection of the venire by 
relying solely on the facts concerning its selection in his case. 
These decisions are in accordance with the proposition, artic­
ulated in Arlington Heights v. Metropolitan Housing Corp., 
that “a consistent pattern of official racial discrimination” is 
not “a necessary predicate to a violation of the Equal Protec­
tion Clause. A single invidiously discriminatory govern­
mental act” is not “immunized by the absence of such dis­
crimination in the making of other comparable decisions.” 
429 U . S., at 266, n. 14. For evidentiary requirements to 
dictate that “several must suffer discrimination” before one 
could object, McCray v. New York, 461 U . S., at 965 (M a r ­
s h a l l , J . ,  dissenting from denial of certiorari), would be in­
consistent with the promise of equal protection to all.19

C
The standards for assessing a prima facie case in the con­

text of discriminatory selection of the venire have been fully 
articulated since Swain. See Castaneda v. Partida, supra, 
at 494-495; Washington v. Davis, supra, at 241-242; Alexan­
der v. Louisiana, supra, at 629-631. These principles sup­
port our conclusion that a defendant may establish a prima 
facie case of purposeful discrimination in selection of the petit

“ Decisions under Title VII also recognize that a person claiming that he 
has been the victim of intentional discrimination may make out a prima 
facie case by relying solely on the facts concerning the alleged discrimina­
tion against him. See cases at supra, n. 19.



16 BATSON v. KENTUCKY

jury solely on evidence concerning the prosecutor’s exercise 
of peremptory challenges at the defendant’s trial. To estab­
lish such a case, the defendant first must show that he is a 
member of a cognizable racial group, Castaneda v. Partida, 
supra, at 494, and that the prosecutor has exercised peremp­
tory challenges to remove from the venire members of the 
defendant’s race. Second, the defendant is entitled to rely 
on the fact, as to which there can be no dispute, that peremp­
tory challenges constitute a jury selection practice that per­
mits “those to discriminate who are of a mind to discrimi­
nate.” Avery v. Georgia, supra, at 562. Finally, the 
defendant must show that these facts and any other relevant 
circumstances raise an inference that the prosecutor used 
that practice to exclude the veniremen from the petit jury on 
account of their race. This combination of factors in the 
empanelling of the petit jury, as in the selection of the venire, 
raises the necessary inference of purposeful discrimination.

In deciding whether the defendant has made the requisite 
showing, the trial court should consider all relevant circum­
stances. For example, a “pattern” of strikes against black 
jurors included in the particular venire might give rise to an 
inference of discrimination. Similarly, the prosecutor’s 
questions and statements during voir dire examination and in 
exercising his challenges may support or refute an inference 
of discriminatory purpose. These examples are merely illus­
trative. We have confidence that trial judges, experienced 
in supervising voir dire, will be able to decide if the circum­
stances concerning the prosecutor’s use of peremptory chal­
lenges creates a prima facie case of discrimination against 
black jurors.

Once the defendant makes a prima facie showing, the bur­
den shifts to the State to come forward with a neutral 
explanation for challenging black jurors. Though this re­
quirement imposes a limitation in some cases on the full pe­
remptory character of the historic challenge, we emphasize 
that the prosecutor’s explanation need not rise to the level



BATSON v. KENTUCKY 17

justifying exercise of a challenge for cause. See McCray v. 
Abrams, 750 F. 2d, at 1132; Booker v. Jobe, 775 F. 2d 762, 
773 (CA6 1985), cert, pending 85-1028. But the prosecutor 
may not rebut the defendant’s prima facie case of discrimina­
tion by stating merely that he challenged jurors of the de­
fendant’s race on the assumption—or his intuitive judg­
ment—that they would be partial to the defendant because of 
their shared race. Cf. Norris v. Alabama, 294 U. S., at
598-599; see Thompson v. United States, ----- U. S. -------,
-----  (Brennan, J., dissenting from denial of certiorari).
Just as the Equal Protection Clause forbids the States to ex­
clude black persons from the venire on the assumption that 
blacks as a group are unqualified to serve as jurors, supra, at 
5, so it forbids the States to strike black veniremen on the 
assumption that they will be biased in a particular case sim­
ply because the defendant is black. The core guarantee of 
equal protection, ensuring citizens that their State will not 
discriminate on account of race, would be meaningless were 
we to approve the exclusion of jurors on the basis of such as­
sumptions, which arise solely from the jurors’ race. Nor 
may the prosecutor rebut the defendant’s case merely by de­
nying that he had a discriminatory motive or “affirming his 
good faith in individual selections.” Alexander v. Louisi­
ana, 405 U. S., at 632. If these general assertions were ac­
cepted as rebutting a defendant’s prima facie case, the Equal 
Protection Clause “would be but a vain and illusory require­
ment.” Norris v. Alabama, supra, at 598. The prosecutor 
therefore must articulate a neutral explanation related to the 
particular case to be tried.20 The trial court then will have

20 The Court of Appeals for the Second Circuit observed in McCray v. 
Abrams, 750 F. 2d, at 1132, that “[t]here are any number of bases” on 
which a prosecutor reasonably may believe that it is desirable to strike a 
juror who is not excusable for cause. As we explained in another context, 
however, the prosecutor must give a “clear and reasonably specific” ex­
planation of his “legitimate reasons” for exercising the challenges. Texas 
Dept, of Community Affairs v. Burdine, 450 U. S. 248, 258 (1981).



18 BATSON v. KENTUCKY

the duty to determine if the defendant has established pur­
poseful discrimination.21

IV
The State contends that our holding will eviscerate the fair 

trial values served by the peremptory challenge. Conceding 
that the Constitution does not guarantee a right to peremp­
tory challenges and that Swain did state that their use ulti­
mately is subject to the strictures of equal protection, the 
State argues that the privilege of unfettered exercise of the 
challenge is of vital importance to the criminal justice 
system.

While we recognize, of course, that the peremptory chal­
lenge occupies an important position in our trial procedures, 
we do not agree that our decision today will undermine the 
contribution the challenge generally makes to the administra­
tion of justice. The reality of practice, amply reflected in 
many state and federal court opinions, shows that the chal­
lenge may be, and unfortunately at times has been, used to 
discriminate against black jurors. By requiring trial courts 
to be sensitive to the racially discriminatory use of peremp­
tory challenges, our decision enforces the mandate of equal 
protection and furthers the ends of justice.22 In view of the

21 In a recent Title VII sex discrimination case, we stated that “a finding
of intentional discrimination is a finding of fact” entitled to appropriate def­
erence by a reviewing court. Anderson v. Bessemer City, 470 U. S .------
(1985). Since the trial judge’s findings in the context under consideration 
here largely will turn on evaluation of credibility, a reviewing court ordi­
narily should give those findings great deference. Id., a t ----- .

22 While we respect the views expressed in J ustice Marshall’s concur­
ring opinion, concerning prosecutorial and judicial enforcement of our hold­
ing today, we do not share them. The standard we adopt under the fed­
eral Constitution is designed to ensure that a State does not use 
peremptory challenges to strike any black juror because of his race. We 
have no reason to believe that prosecutors will not fulfill their duty to exer­
cise their challenges only for legitimate purposes. Certainly, this Court 
may assume that trial judges, in supervising voir dire in light of our deci­
sion today, will be alert to identify a prima facie case of purposeful dis­
crimination. Nor do we think that this historic trial practice, which long



BATSON v. KENTUCKY 19

heterogeneous population of our nation, public respect for our 
criminal justice system and the rule of law will be strength­
ened if we ensure that no citizen is disqualified from jury 
service because of his race.

Nor are we persuaded by the State’s suggestion that our 
holding will create serious administrative difficulties. In 
those states applying a version of the evidentiary standard 
we recognize today, courts have not experienced serious ad­
ministrative burdens,23 and the peremptory challenge system 
has survived. We decline, however, to formulate particular 
procedures to be followed upon a defendant’s timely objection 
to a prosecutor’s challenges.24

V
In this case, petitioner made a timely objection to the pros­

ecutor’s removal of all black persons on the venire. Because 
the trial court flatly rejected the objection without requiring 
the prosecutor to give an explanation for his action, we re­
mand this case for further proceedings. If the trial court de­
cides that the facts establish, prima facie, purposeful dis­
crimination and the prosecutor does not come forward with a

has served the selection of an impartial jury, should be abolished because of 
an apprehension that prosecutors and trial judges will not perform con­
scientiously their respective duties under the Constitution.

23 For example, in People v. Hall, 35 Cal. 3d 161, 672 P. 2d 854 (1983), 
the California Supreme Court found that there was no evidence to show 
that procedures implementing its version of this standard, imposed five 
years earlier, were burdensome for trial judges.

24 In light of the variety of jury selection practices followed in our state 
and federal trial courts, we make no attempt to instruct these courts how 
best to implement our holding today. For the same reason, we express no 
view on whether it is more appropriate in a particular case, upon a finding 
of discrimination against black jurors, for the trial court to discharge the 
venire and select a new jury from a panel not previously associated with 
the case, see Booker v. Jahe, 775 F. 2d, at 773, or to disallow the discrimi­
natory challenges and resume selection with the improperly challenged ju­
rors reinstated on the venire, see United States v. Robinson, 421 F. Supp. 
467, 474 (Conn. 1976), mandamus granted sub nom. United States v. New­
man, 549 F. 2d 240 (CA2 1977).



20 BATSON v. KENTUCKY

neutral explanation for his action, our precedents require 
that petitioner’s conviction be reversed. E. g., Whitus v. 
Georgia, 385 U. S., at 549-550; Hernandez v. Texas, supra, 
at 482; Patton v. Mississippi, 332 U. S., at 469.25

It is so ordered.

25 To the extent that anything in Swain v. Alabama, 380 U. S. 202 
(1965), is contrary to the principles we articulate today, that decision is 
overruled.



SUPREME COURT OF THE UNITED STATES

No. 84-6263

JAMES KIRKLAND BATSON, PETITIONER 
v. KENTUCKY

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF KENTUCKY

[April 30, 1986]

J ustice White , concurring.
The Court overturns the principal holding in Swain v. 

Alabama, 380 U. S. 202 (1965), that the Constitution does 
not require in any given case an inquiry into the prosecutor’s 
reasons for using his peremptory challenges to strike blacks 
from the petit jury panel in the criminal trial of a black 
defendant and that in such a case it will be presumed that 
the prosecutor is acting for legitimate trial-related reasons. 
The Court now rules that such use of peremptory challenges 
in a given case may, but does not necessarily, raise an infer­
ence, which the prosecutor carries the burden of refuting, 
that his strikes were based on the belief that no black citizen 
could be a satisfactory juror or fairly try  a black defendant.

I agree that, to this extent, Swain should be overruled. I 
do so because Swain itself indicated that the presumption 
of legitimacy with respect to the striking of black venire per­
sons could be overcome by evidence that over a period of time 
the prosecution had consistently excluded blacks from petit 
juries.* This should have warned prosecutors that using 
peremptories to exclude blacks on the assumption that no

*Nor would it have been inconsistent with Swain for the trial judge to 
invalidate peremptory challenges of blacks if the prosecutor, in response to 
an objection to his strikes, stated that he struck blacks because he believed 
they were not qualified to serve as jurors, especially in the trial of a black 
defendant.



2 BATSON v. KENTUCKY

black juror could fairly judge a black defendant would violate 
the Equal Protection Clause.

It appears, however, that the practice of peremptorily 
eliminating blacks from petit juries in cases with black 
defendant remains widespread, so much so that I agree that 
an opportunity to inquire should be afforded when this oc­
curs. If the defendant objects, the judge, in whom the 
Court puts considerable trust, may determine that the pros­
ecution must respond. If not persuaded otherwise, the 
judge may conclude that the challenges rest on the belief that 
blacks could not fairly try a black defendant. This, in effect, 
attributes to the prosecutor the view that all blacks should be 
eliminated from the entire venire. Hence, the Court’s prior 
cases dealing with jury venires rather than petit juries are 
not without relevance in this case.

The Court emphasizes that using peremptory challenges to 
strike blacks does not end the inquiry; it is not unconstitu­
tional, without more, to strike one or more blacks from the 
jury. The judge may not require the prosecutor to respond 
at all. If he does, the prosecutor, who in most cases has had 
a chance to voir dire the prospective jurors, will have an 
opportunity to give trial-related reasons for his strikes— 
some satisfactory ground other than the belief that black 
jurors should not be allowed to judge a black defendant.

Much litigation will be required to spell out the contours of 
the Court’s Equal Protection holding today, and the signifi­
cant effect it will have on the conduct of criminal trials cannot 
be gainsaid. But I agree with the Court that the time has 
come to rule as it has, and I join its opinion and judgment.

I would, however, adhere to the rule announced in 
DeStefano v. Woods, 392 U. S. 631 (1968), that Duncan v. 
Louisiana, 391 U. S. 145 (1968), which held that the States 
cannot deny jury trials in serious criminal cases, did not 
require reversal of a state conviction for failure to grant a 
jury trial where the trial began prior to the date of the 
announcement in the Duncan decision. The same result was



BATSON v. KENTUCKY 3

reached in DeStefano with respect to the retroactivity of 
Bloom v. Illinois, 391 U. S. 194 (1968), as it was in Daniel v. 
Louisiana, 420 U. S. 31 (1975)(per curiam), with respect to 
the decision in Taylor v. Louisiana, 419 U. S. 522 (1975), 
holding that the systematic exclusion of women from jury 
panels violated the Sixth and Fourteenth Amendments.



SUPREME COURT OF THE UNITED STATES

No. 84-6263

JAMES KIRKLAND BATSON, PETITIONER 
v. KENTUCKY

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF KENTUCKY

[April 30, 1986]

J ustice Marshall, concurring.
I join J ustice Powell’s eloquent opinion for the Court, 

which takes a historic step toward eliminating the shameful 
practice of racial discrimination in the selection of juries. 
The Court’s opinion cogently explains the pernicious nature 
of the racially discriminatory use of peremptory challenges, 
and the repugnancy of such discrimination to the Equal Pro­
tection Clause. The Court’s opinion also ably demonstrates 
the inadequacy of any burden of proof for racially discrimina­
tory use of peremptories that requires that “justice . . .  sit 
supinely by” and be flouted in case after case before a remedy 
is available.1 I nonetheless write separately to express my 
views. The decision today will not end the racial discrimina­
tion that peremptories inject into the jury-selection process. 
That goal can be accomplished only by eliminating peremp­
tory challenges entirely.

I
A little over a century ago, this Court invalidated a state 

statute providing that black citizens could not serve as ju­
rors. Strauder v. West Virginia, 100 U. S. 303 (1880). 
State officials then turned to somewhat more subtle ways of

1 Commonwealth v. Martin, 461 Pa. 289, 299, 336 A. 2d 290, 295 (1975) 
(Nix, J ., dissenting), quoted in McCray v. New York, 461 U. S. 961, 965, 
n. 2 (1983) (Marshall, J., dissenting from denial of certiorari).



2 BATSON v. KENTUCKY

keeping blacks off jury venires. See Swain v. Alabama, 380 
U. S. 202, 231-238 (1965) (Goldberg, J., dissenting); Kuhn, 
Jury Discrimination: The Next Phase, 41 S. Cal. L. Rev. 235 
(1968); see also J. Van Dyke, Jury Selection Procedures 
155-157 (1977) (hereinafter Van Dyke). Although the means 
used to exclude blacks have changed, the same pernicious 
consequence has continued.

Misuse of the peremptory challenge to exclude black jurors 
has become both common and flagrant. Black defendants 
rarely have been able to compile statistics showing the extent 
of that practice, but the few cases setting out such figures are 
instructive. See United States v. Carter, 528 F. 2d 844, 848 
(CA8 1975) (in 15 criminal cases in 1974 in the Western Dis­
trict of Missouri involving black defendants, prosecutors pe­
remptorily challenged 81% of black jurors), cert, denied, 425 
U. S. 961 (1976); United States v. McDaniels, 379 F. Supp. 
1243 (ED La. 1974) (in 53 criminal cases in 1972-1974 in East­
ern District of Louisiana involving black defendants, federal 
prosecutors used 68.9% of their peremptory challenges 
against black jurors, who made up less than one quarter of 
the venire); McKinney v. Walker, 394 F. Supp. 1015, 
1017-1018 (SC 1974) (in 13 criminal trials in 1970-1971 in 
Spartansburg County, South Carolina, involving black de­
fendants, prosecutors peremptorily challenged 82% of black 
jurors), affirmance order, 529 F. 2d 516 (CA4 1975).2 Pros­
ecutors have explained to courts that they routinely strike 
black jurors, see State v. Washington, 375 So. 2d 1162, 
1163-1164 (La. 1979). An instruction book used by the pros­
ecutor’s office in Dallas County, Texas, explicitly advised 
prosecutors that they conduct jury selection so as to elimi­
nate “ ‘any member of a minority group.’”3 In 100 felony

2See also Harris v. Texas, 467 U. S. 1261 (1984) (Marshall, J., dis­
senting from denial of certiorari); Williams v. Illinois, 466 U. S. 981 (1984) 
(Marshall, J., dissenting from denial of certiorari).

3 Van Dyke, supra, at 152, quoting Texas Observer, May 11, 1973, p. 9, 
col. 2. An earlier jury-selection treatise circulated in the same county in-



BATSON v. KENTUCKY 3

trials in Dallas County in 1983-1984, prosecutors perempto­
rily struck 405 out of 467 eligible black jurors; the chance of a 
qualified black sitting on a jury was one-in-ten, compared to 
one-in-two for a white.4

The Court’s discussion of the utter unconstitutionality of 
that practice needs no amplification. This Court explained 
more than a century ago that “ ‘in the selection of jurors to 
pass upon [a defendant’s] life, liberty, or property, there 
shall be no exclusion of his race, and no discrimination against 
them, because of their color.’” Neal v. Delaware, 103 U. S. 
370, 394 (1881), quoting Virginia v. Rives, 100 U. S. 313, 323 
(1880). J u s t ic e  R e h n q u is t , dissenting, concedes that ex­
clusion of blacks from a jury, solely because they are black, is 
at best based upon “crudely stereotypical and . . .  in many 
cases hopelessly mistaken” notions. Post, at 5. Yet the 
Equal Protection Clause prohibits a State from taking any ac­
tion based on crude, inaccurate racial stereotypes—even an 
action that does not serve the State’s interests. Exclusion of 
blacks from a jury, solely because of race, can no more be jus­
tified by a belief that blacks are less likely than whites to con­
sider fairly or sympathetically the State’s case against a black 
defendant than it can be justified by the notion that blacks 
lack the “intelligence, experience, or moral integrity,” Neal, 
supra, at 397, to be entrusted with that role.

II
I wholeheartedly concur in the Court’s conclusion that use 

of the peremptory challenge to remove blacks from juries, on 
the basis of their race, violates the Equal Protection Clause.
I would go further, however, in fashioning a remedy ade­
quate to eliminate that discrimination. Merely allowing de-

structed prosecutors: “Do not take Jews, Negroes, Dagos, Mexicans or a 
member of any minority race on a jury, no matter how rich or how well 
educated.” Quoted in Dallas Morning News, March 9, 1986, p. 29, col. 1.

4 Dallas Morning News, March 9, 1986, p. 1, col. 1; see also Comment, A 
Case Study of the Peremptory Challenge: A Subtle Strike at Equal Protec­
tion and Due Process, 18 St. Louis U. L. J. 662 (1974).



4 BATSON v. KENTUCKY

fendants the opportunity to challenge the racially discrimina­
tory use of peremptory challenges in individual cases will not 
end the illegitimate use of the peremptory challenge.

Evidentiary analysis similar to that set out by the Court, 
ante, at 17, has been adopted as a matter of state law in 
States including Massachusetts and California. Cases from 
those jurisdictions illustrate the limitations of the approach. 
First, defendants cannot attack the discriminatory use of pe­
remptory challenges at all unless the challenges are so fla­
grant as to establish a prima facie case. This means, in those 
States, that where only one or two black jurors survive the 
challenges for cause, the prosecutor need have no compunc­
tion about striking them from the jury because of their race. 
See Commonwealth v. Robinson, 382 Mass. 189, 195, 415 
N. E. 2d 805, 809-810 (1981) (no prima facie case of dis­
crimination where defendant is black, prospective jurors in­
clude three blacks and one Puerto Rican, and prosecutor ex­
cludes one for cause and strikes the remainder peremptorily, 
producing all-white jury); People v. Rousseau, 129 Cal. App. 
3d 526, 536-537, 179 Cal. Rptr. 892, 897-898 (1982) (no prima 
facie case where prosecutor peremptorily strikes only two 
blacks on jury panel). Prosecutors are left free to discrimi­
nate against blacks in jury selection provided that they hold 
that discrimination to an “acceptable” level.

Second, when a defendant can establish a prima facie case, 
trial courts face the difficult burden of assessing prosecutors’ 
motives. See King v. County of Nassau, 581 F. Supp. 493, 
501-502 (EDNY 1984). Any prosecutor can easily assert fa­
cially neutral reasons for striking a juror, and trial courts are 
ill-equipped to second-guess those reasons. How is the court 
to treat a prosecutor’s statement that he struck a juror be­
cause the juror had a son about the same age as defendant, 
see People v. Hall, 35 Cal. 3d 161, 672 P. 2d 854 (1983), or 
seemed “uncommunicative,” King, supra, at 498, or “never 
cracked a smile” and, therefore “did not possess the sensitiv­
ities necessary to realistically look at the issues and decide



BATSON v. KENTUCKY 5

the facts in this case,” Hall, supra, at 165, 672 P. 2d, at 856? 
If such easily generated explanations are sufficient to dis­
charge the prosecutor’s obligation to justify his strikes on 
nonracial grounds, then the protection erected by the Court 
today may be illusory.

Nor is outright prevarication by prosecutors the only dan­
ger here. “[I]t is even possible that an attorney may lie to 
himself in an effort to convince himself that his motives are 
legal.” King, supra, at 502. A prosecutor’s own conscious 
or unconscious racism may lead him easily to the conclusion 
that a prospective black juror is “sullen,” or “distant,” a 
characterization that would not have come to his mind if a 
white juror had acted identically. A judge’s own conscious 
or unconscious racism may lead him to accept such an ex­
planation as well supported. As J u s t ic e  R e h n q u is t  con­
cedes, prosecutors’ peremptories are based on their “seat-of- 
the-pants instincts” as to how particular jurors will vote. 
Post, at 5; see also the C h i e f  J u s t ic e ’s dissenting opinion, 
post, at 12-13. Yet “seat-of-the-pants instincts” may often 
be just another term for racial prejudice. Even if all parties 
approach the Court’s mandate with the best of conscious in­
tentions, that mandate requires them to confront and over­
come their own racism on all levels—a challenge I doubt all of 
them can meet. It is worth remembering that “114 years 
after the close of the War Between the States and nearly 100 
years after Strauder, racial and other forms of discrimination 
still remain a fact of life, in the administration of justice as in 
our society as a whole.” Rose v. Mitchell, 443 U. S. 545, 
558-559 (1979), quoted in Vasquez v. Hillery, 474 U. S .----- ,

The inherent potential of peremptory challenges to distort 
the jury process by permitting the exclusion of jurors on ra­
cial grounds should ideally lead the Court to ban them en­
tirely from the criminal justice system. See Van Dyke, at 
167-169; Imlay, Federal Jury Reformation: Saving a Demo-



6 BATSON v. KENTUCKY

cratic Institution, 6 Loyola (LA) L. Rev. 247, 269-270 (1973). 
Justice Goldberg, dissenting in Swain, emphasized that 
“[wjere it necessary to make an absolute choice between the 
right of a defendant to have a jury chosen in conformity with 
the requirements of the Fourteenth Amendment and the 
right to challenge peremptorily, the Constitution compels a 
choice of the former.” 380 U. S., at 244. I believe that this 
case presents just such a choice, and I would resolve that 
choice by eliminating peremptory challenges entirely in crim­
inal cases.

Some authors have suggested that the courts should ban 
prosecutors’ peremptories entirely, but should zealously 
guard the defendant’s peremptory as “essential to the fair­
ness of trial by jury ,” Lewis v. United States, 146 U. S. 370, 
376 (1892), and “one of the most important of the rights se­
cured to the accused,” Pointer v. United States, 151 U. S. 
396, 408 (1894). See Van Dyke, at 167; Brown, McGuire, & 
Winters, The Peremptory Challenge as a Manipulative De­
vice in Criminal Trials: Traditional Use or Abuse, 14 New 
England L. Rev. 192 (1978). I would not find that an accept­
able solution. Our criminal justice system “requires not only 
freedom from any bias against the accused, but also from any 
prejudice against his prosecution. Between him and the 
state the scales are to be evenly held.” Hayes v. Missouri, 
120 U. S. 68, 70 (1887). We can maintain that balance, not 
by permitting both prosecutor and defendant to engage in ra­
cial discrimination injury selection, but by banning the use of 
peremptory challenges by prosecutors and by allowing the 
States to eliminate the defendant’s peremptory as well.

Much ink has been spilled regarding the historic impor­
tance of defendants’ peremptory challenges. The approving 
comments of the Lewis and Pointer Courts are noted above; 
the Swain Court emphasized the “very old credentials” of the 
peremptory challenge, 380 U. S., at 212, and cited the “long 
and widely held belief that peremptory challenge is a neces­
sary part of trial by jury.” Id ., at 219. But this Court has



BATSON v. KENTUCKY 7

also repeatedly stated that the right of peremptory challenge 
is not of constitutional magnitude, and may be withheld alto­
gether without impairing the constitutional guarantee of im­
partial jury and fair trial. Frazier v. United States, 335 
U. S. 497, 505, n. 11 (1948); United States v. Wood, 299 U. S. 
123, 145 (1936); Stilson v. United States, 250 U. S. 583, 586 
(1919); see also Swain, supra, at 219. The potential for ra­
cial prejudice, further, inheres in the defendant’s challenge as 
well. If the prosecutor’s peremptory challenge could be 
eliminated only at the cost of eliminating the defendant’s 
challenge as well, I do not think that would be too great a 
price to pay.

I applaud the Court’s holding that the racially discrimina­
tory use of peremptory challenges violates the Equal Protec­
tion Clause, and I join the Court’s opinion. However, only 
by banning peremptories entirely can such discrimination be 
ended.



SUPREME COURT OF THE UNITED STATES

No. 84-6263

JAMES KIRKLAND BATSON, PETITIONER 
v. KENTUCKY

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF KENTUCKY

[April 30, 1986]

J u s t ic e  S t e v e n s , with whom J u s t ic e  B r e n n a n  joins, 
concurring.

In his dissenting opinion, T h e  C h i e f  J u s t ic e  correctly 
identifies an apparent inconsistency between my criticism of
the Court’s action in Colorado v. Connelly, 474 U. S . -----
(1986) (memorandum of B r e n n a n , J., joined by S t e v e n s , 
J.), and New Jersey v. T. L. 0 ., 468 U . S. 1214 "(1984) (S t e ­
v e n s , J., dissenting)—cases in which the Court directed the 
State to brief and argue questions not presented in its peti­
tion for certiorari—and our action today in finding a violation 
of the Equal Protection Clause despite the failure of petition­
er’s counsel to rely on that ground of decision. Post, at 4-5, 
nn. 1, and 2. In this case, however—unlike Connelly and 
T. L. 0 .—the party defending the judgment has explicitly 
rested on the issue in question as a controlling basis for af­
firmance. In defending the Kentucky Supreme Court’s 
judgment, Kentucky’s Assistant Attorney General empha­
sized the State’s position on the centrality of the Equal Pro­
tection issue:

“Mr. Chief Justice, and may it please the Court, the 
issue before this Court today is simply whether Swain 
versus Alabama should be reaffirmed. . . .

. .W e believe that it is the Fourteenth Amendment 
that is the item that should be challenged, and presents



2 BATSON v. KENTUCKY

perhaps an address to the problem. Swain dealt pri­
marily with the use of peremptory challenges to strike 
individuals who were of a cognizable or identifiable 
group.

“Petitioners show no case other than the State of Cali­
fornia’s case dealing with the use of peremptories 
wherein the Sixth Amendment was cited as authority for 
resolving the problem. So, we believe that the Four­
teenth Amendment is indeed the issue. That was the 
guts and primarily the basic concern of Swain.

“In closing, we believe that the trial court of Kentucky 
and the Supreme Court of Kentucky have firmly em­
braced Swain, and we respectfully request that this 
Court affirm the opinion of the Kentucky court as well as 
to reaffirm Swain versus Alabama.” 1

In addition to the party’s reliance on the Equal Protection 
argument in defense of the judgment, several amici curiae 
also addressed that argument. For instance, the argument 
in the brief filed by the Solicitor General of the United States 
begins:

“PETITIONER DID NOT ESTABLISH THAT HE 
WAS DEPRIVED OF A PROPERLY CONSTITUTED 
PETIT JURY OR DENIED EQUAL PROTECTION 
OF THE LAWS

“A. Under Swain v. Alabama A Defendant Cannot Es­
tablish An Equal Protection Violation By Showing 
Only That Black Veniremen Were Subjected To Pe­
remptory Challenge By The Prosecution In His 
Case”2

>Tr. of Oral Arg., 27-28, 43.
2 Brief for United States as Amicus Curiae 7.



BATSON v. KENTUCKY 3

Several other amici similarly emphasized this issue.3
In these circumstances, although I suppose it is possible 

that reargument might enable some of us to have a better in­
formed view of a problem that has been percolating in the 
courts for several years,4 I believe the Court acts wisely in 
resolving the issue now on the basis of the arguments that

3 The argument section of the brief for the National District Attorneys 
Association, Inc., as amicus curiae in support of respondent begins as 
follows:
“This Court should conclude that the prosecutorial peremptory challenges 
exercised in this case were proper under the fourteenth amendment equal 
protection clause and the sixth amendment. This Court should further de­
termine that there is no constitutional need to change or otherwise modify 
this Court’s decision in Swain v. Alabama." Id., at 5.

Am ici supporting the petitioner also emphasized the importance of the 
equal protection issue. See, e. g., Brief for NAACP Legal Defense and 
Educational Fund, American Jewish Committee, and American Jewish 
Congress as Amici Curiae, 24-36; Brief for Lawyers’ Committee for Civil 
Rights Under Law as Amicus Curiae, 11-17; Brief for Elizabeth Holtzman 
as Amicus Curiae, 13.

4 See McCray v. New York, 461 U. S. 961 (1983) (opinion of Stevens, 
J ., respecting denial of certiorari); id., at 963 (Marshall, J., dissenting 
from denial of certiorari).

The eventual federal habeas corpus disposition of McCray, of course, 
proved to be one of the landmark cases that made the issues in this case 
ripe for review. McCray v. Abram.s, 750 F. 2d 1113 (CA2 1984), petition 
for cert, pending. See also Batson’s cert, petition, 5-7 (relying heavily on 
McCray as a reason for review). In McCray, as in almost all opinions that 
have considered similar challenges, the Court of Appeals for the Second 
Circuit explicitly addressed the equal protection issue and the viability of 
Swain. Id., at 1118-1124. The pending petition for certiorari in McCray 
similarly raises the equal protection question that has long been central to 
this issue. Pet. for cert., 84-1426 (Question 2). Indeed, shortly after 
agreeing to hear Batson, the Court was presented with a motion to consoli­
date McCray and Batson, and consider the cases together. Presumably 
because the Court believed that Batson adequately presented the issues 
with which other courts had consistently grappled in considering this ques­
tion, the Court denied the motion. See Journal, OT ’84, pp. 631-632. Cf. 
id., at 632 (Brennan, Marshall, and Stevens, JJ., dissenting from de­
nial of motion to consolidate).



4 BATSON v. KENTUCKY

have already been fully presented without any special invita­
tion from this Court.5

5 Although I disagree with his criticism of the Court in this case, I fully 
subscribe to The Chief  J ustice’s view, expressed today, that the Court 
should only address issues necessary to the disposition of the case or peti­
tion. For contrasting views, see, e. g., Bender v. Williamsport School
Dist., 475 U. S .----- , ------(1986) (Burger, C. J ., dissenting) (addressing
merits even though majority of the Court has found a lack of standing); 
Colorado v. Nunez, 465 U. S. 324 (1984) (concurring opinion, joined by 
Burger , C. J.) (expressing view on merits even though writ is dismissed 
as improvidently granted because state court judgment rested on adequate 
and independent state grounds); Florida v. Casal, 462 U. S. 637, 639 
(1983) (Burger, C. J., concurring) (agreeing with Court that writ should 
be dismissed as improvidently granted because judgment rests on ade­
quate and independent state grounds, but noting that “the citizens of the 
state must be aware that they have the power to amend state law to ensure 
rational law enforcement”). See also Colorado v. Connelly, 474 U. S.
------(1986) (ordering parties to address issue that neither party raised);
New Jersey v. T. L. 0 ., 468 U. S. 1214 (1984) (same).



SUPREME COURT OF THE UNITED STATES

No, 84-6263

JAMES KIRKLAND BATSON, PETITIONER 
v. KENTUCKY

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF KENTUCKY

[April 30, 1986]

Justice O’Connor, concurring.
I concur in the Court’s opinion and judgment, but also 

agree with the views of The Chief Justice and Justice 
White that today’s decision does not apply retroactively.



SUPREME COURT OF THE UNITED STATES

No. 84-6263

JAMES KIRKLAND BATSON, PETITIONER 
v. KENTUCKY

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF KENTUCKY

[April 30, 1986]

Chief J ustice Burger, joined by Justice Rehnquist, 
dissenting.

We granted certiorari to decide whether petitioner was 
tried “in violation of constitutional provisions guaranteeing 
the defendant an impartial jury and a jury composed of 
persons representing a fair cross section of the community.” 
Pet. for Cert. i.

I
Today the Court sets aside the peremptory challenge, a 

procedure which as been part of the common law for many 
centuries and part of our jury system for nearly 200 years. 
It does so on the basis of a constitutional argument that was 
rejected, without a single dissent, in Swain v. Alabama, 380 
U. S. 202 (1965). Reversal of such settled principles would 
be unusual enough on its own terms, for only five years ago 
we said that “stare decisis, while perhaps never entirely 
persuasive on a constitutional question, is a doctrine that 
demands respect in a society governed by the rule of law.” 
Akron v. Akron Center for Reproductive Health, Inc., 462 
U. S. 416, 420 (1983). What makes today’s holding truly ex­
traordinary is that it is based on on a constitutional argument 
that the petitioner has expressly declined to raise, both in 
this Court and in the Supreme Court of Kentucky.

In the Kentucky Supreme Court, petitioner disclaimed 
specifically any reliance on the Equal Protection Clause of



2 BATSON v. KENTUCKY

the Fourteenth Amendment, pressing instead only a claim 
based on the Sixth Amendment. See Brief for Appellant 14 
and Reply Brief for Appellant 1 in No. 84-SC-733-MR (Ky.). 
As petitioner explained at oral argument here, “We have not 
made an equal protection claim. . . . We have not made a spe­
cific argument in the briefs that have been filed either in the 
Supreme Court of Kentucky or in this Court saying that we 
are attacking Swain as such.” Tr. of Oral Arg. 6-7. Peti­
tioner has not suggested any barrier prevented raising an 
equal protection claim in the Kentucky courts. In such cir­
cumstances, review of an equal protection argument is im­
proper in this Court: “ ‘The Court has consistently refused to 
decide federal constitutional issues raised here for the first 
time on review of state court decisions . . . . ’” Illinois v. 
Gates, 459 U. S. 1028, 1029, n. 2 (1982) (Stevens, J., dis­
senting) (quoting Cardinale v. Louisiana, 394 U. S. 437, 438 
(1969)). Neither the Court nor J ustice Stevens offers any 
justification for departing from this time-honored principle, 
which dates to Owings v. Norwood’s Lessee, 5 Cranch 344 
(1809), and Crowell v. Randell, 10 Pet. 368 (1836).

Even if the equal protection issue had been pressed in the 
Kentucky Supreme Court, it has surely not been pressed 
here. This provides an additional and completely separate 
procedural novelty to today’s decision. Petitioner’s “ques­
tion presented” involved only the “constitutional provisions 
guaranteeing the defendant an impartial jury and a jury com­
posed of persons representing a fair cross section of the 
community.” Pet. for Cert. i. These provisions are found 
in the Sixth Amendment, not the Equal Protection Clause of 
the Fourteenth Amendment relied upon by the Court. In 
his brief on the merits, under a heading distinguishing equal 
protection cases, petitioner noted “the irrelevance of the 
Swain analysis to the present case,” Brief for Petitioner 11; 
instead petitioner relied solely on Sixth Amendment analysis 
found in cases such as Taylor v. Louisiana, 419 U. S. 522



BATSON v. KENTUCKY 3

(1975). During oral argument, counsel for petitioner was 
pointedly asked:

“QUESTION: Mr. Niehaus, Swain was an equal 
protection challenge, was it not?

“MR. NIEHAUS: Yes.
“QUESTION: Your claim here is based solely on the 

Sixth Amendment?
“MR. NIEHAUS: Yes.
“QUESTION: Is that correct?
“MR. NIEHAUS: That is what we are arguing, yes.
“QUESTION: You are not asking for a reconsider­

ation of Swain, and you are making no equal protection 
claim here. Is that correct?

“MR. NIEHAUS: We have not made an equal protec­
tion claim. I think that Swain will have to be reconsid­
ered to a certain extent if only to consider the arguments 
that are made on behalf of affirmance by the respondent 
and the solicitor general.

“We have not made a specific argument in the briefs 
that have been filed either in the Supreme Court of 
Kentucky or in this Court saying that we are attacking 
Swain as such. . . . ” Tr. of Oral Arg. 5-7.

A short time later, after discussing the difficulties attendant 
with a Sixth Amendment claim, the following colloquy 
occurred:

“QUESTION: So I come back again to my question 
why you didn’t  attack Swain head on, but I take it if the 
Court were to overrule Swain, you wouldn’t  like that 
result.

“MR. NIEHAUS: Simply overrule Swain without 
adopting the remedy?

“QUESTION: Yes.
“MR. NIEHAUS: I do not think that would give us 

much comfort, Your Honor, no.



4 BATSON v. KENTUCKY

“QUESTION: That is a concession.” Id., at 10.
Later, petitioner’s counsel refused to answer the Court’s 
questions concerning the implications of a holding based on 
equal protection concerns:

“MR. NIEHAUS: . . . there is no state action in­
volved where the defendant is exercising his peremptory 
challenge.

“QUESTION: But there might be under an equal 
protection challenge if it is the state system that allows 
that kind of a strike.

“MR. NIEHAUS: I believe that is possible. I am 
really not prepared to answer that specific ques­
tion. . .  .” 7d .,a t20 .

In reaching the equal protection issue despite petitioner’s 
clear refusal to present it, the Court departs dramatically 
from its normal procedure without any explanation. When 
we granted certiorari, we could have—as we sometimes do— 
directed the parties to brief the equal protection question in 
addition to the Sixth Amendment question. See, e. g. , Paris 
Adult Theatre I  v. Slaton, 408 U. S. 921 (1972); Colorado v. 
Connelly, 474 U. S .------(1986).1 Even following oral argu-

‘In Colorado v. Connelly, J ustice Brennan, joined by J ustice 
Stevens, filed a memorandum objecting to this briefing of an additional 
question, explaining that “it is hardly for this Court to ‘second chair’ the 
prosecutor to alter his strategy or guard him from mistakes. Under this 
Court’s Rule 21.1(a), ‘[ojnly the questions set forth in the petition or fairly 
included therein will be considered by the Court.’ Given petitioner’s 
express disclaimer that [this] issue is presented, that question obviously is 
not ‘fairly included’ in the question submitted. The Court’s direction that 
the parties address it anyway makes meaningless in this case the provi­
sions of this Rule and is plainly cause for concern, particularly since it is 
clear that a similar dispensation would not be granted a criminal defendant,
however strong his claim. ” 474 U. S., a t ----- . If the Court’s limited step
of directing briefing on an additional point at the time certiorari was 
granted was “cause for concern,” I would think a fortiorari that the 
far more expansive action the Court takes today would warrant similar 
concern.



BATSON v. KENTUCKY 5

ment, we could have—as we sometimes do—directed 
reargument on this particular question. See, e. g., Brown v. 
Board of Education, 345 U. S. 972 (1953); Illinois v. Gates, 
459 U. S. 1028 (1982); New Jersey v. T. L. 0., 468 U. S. 1214 
(1984).2 This step is particularly appropriate where re­
examination of a prior decision is under consideration. See, 
e. g., Garcia v. San Antonio Metropolitan Transit Author­
ity, 468 U. S. 1213 (1984) (directing reargument and briefing 
on issue of whether National League of Cities v. Usery, 426 
U. S. 833 (1976) should be reconsidered); Alfred Dunhill of 
London, Inc. v. Republic of Cuba, 422 U. S. 1005 (1975) (di­
recting reargument and briefing on issue of whether the hold­
ing in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 
(1964) should be reconsidered). Alternatively, we could 
have simply dismissed this petition as improvidently granted.

The Court today rejects these accepted courses of action, 
choosing instead to reverse a 21-year-old unanimous constitu­
tional holding of this Court on the basis of constitutional 
arguments expressly disclaimed by petitioner. The only 
explanation for this action is found in J u s t ic e  S t e v e n s ’ con­
currence. J u s t ic e  S t e v e n s  apparently believes that this 
issue is properly before the Court because “the party

2J ustice Stevens, joined by J ustice Brennan and J ustice 
Marshall, dissented from the order directing reargument in New Jersey 
v. T. L. 0 . They explained:

“The single question presented to the Court has now been briefed and 
argued. Evidently unable or unwilling to decide the question presented 
by the parties, the Court, instead of dismissing the writ of certiorari as 
improvidently granted, orders reargument directed to the questions that 
[petitioner] decided not to bring here. . . . Volunteering unwanted advice 
is rarely a wise course of action.

“I believe that the adversary process functions most effectively when we 
rely on the initiative of lawyers, rather than the activism of judges, to 
fashion the questions for review.” 468 U. S., at 1215-1216.

J ustice Stevens’ preferred explanation notwithstanding, see ante, at 1 
(Stevens, J ., concurring), I am at a loss to discern how one can consist­
ently hold these views and still reach the question the Court reaches today.



6 BATSON v. KENTUCKY

defending the judgment has explicitly rested on the issue in 
question as a controlling basis for affirmance.” Ante, at 1 
(Stevens, J., concurring). Cf. Illinois v. Gates, supra, at 
1029, n. 1 (Stevens, J., dissenting) (“there is no impediment 
to presenting a new argument as an alternative basis for af­
firming the decision below”) (emphasis in original). To be 
sure, respondent and supporting amici did cite Swain and 
the Equal Protection Clause. But their arguments were 
largely limited to explaining that Swain placed a negative 
gloss on the Sixth Amendment claim actually raised by peti­
tioner. In any event, it is a strange jurisprudence that looks 
to the arguments made by respondent to determine the 
breadth of the questions presented for our review by peti­
tioner. Of course, such a view is directly at odds with our 
Rule 21.1(a), which provides that “[o]nly the questions set 
forth in the petition or fairly included therein will be consid­
ered by the Court.” J ustice Stevens does not cite, and I 
am not aware of, any case in this Court’s nearly 200 year his­
tory where the alternative grounds urged by respondent to 
affirm a judgment were then seized upon to permit petitioner 
to obtain relief from that very judgment despite petitioner’s 
failure to urge that ground.

Justice Stevens also observes that several amici curiae 
address the equal protection argument. Ante, at 2 (Ste­
vens, J., concurring). But I thought it well settled that, 
even if a “point is made in an amicus curiae brief,” if the 
claim “has never been advanced by petitioners . . . .  we have 
no reason to pass upon it.” Knetsch v. United States, 364 
U. S. 361, 370 (1960).

When objections to peremptory challenges were brought to 
this Court three years ago, Justice Stevens agreed with 
Justice Marshall that the challenge involved “a significant 
and recurring question of constitutional law.” McCray v. 
New York, 461 U. S. 961, 963 (1983) (Marshall, J., dissent­
ing from denial of certiorari), referred to with approval, id., 
at 961 (Stevens, J., respecting the denial of certiorari).



BATSON v. KENTUCKY 7

Nonetheless, J u s t ic e  St e v e n s  wrote that the issue could be 
dealt with “more wisely at a later date.” Id., at 962. The 
same conditions exist here today. J u s t ic e  St e v e n s  con­
cedes that reargument of this case “might enable some of us 
to have a better informed view of a problem that has been 
percolating in the courts for several years.” Ante, at 3 
(St e v e n s , J . ,  concurring). Thus, at bottom his position is 
that we should reverse an extremely important prior con­
stitutional decision of this Court on a claim not advanced 
here, even though briefing and oral argument on this claim 
might convince us to do otherwise.3 I believe that “[d]eci- 
sions made in this manner are unlikely to withstand the test 
of time.” United States v. Leon, 468 U. S. 897, 962 (1984) 
(S t e v e n s , J . ,  dissenting). Before contemplating such a 
holding, I would at least direct reargument and briefing on 
the issue of whether the equal protection holding in Swain 
should be reconsidered.

3 This fact alone distinguishes the cases cited by J ustice Stevens as 
support for today’s unprecedented action. See ante, at 3, n. 5. In
Bender v. Williamsport Area School Dist., 475 U. S. ——, ------ (1986)
(Burgee, C. J ., dissenting), Colorado v. Nunez, 465 U. S. 324 (1984) 
(Wh ite , J ., concurring), and Florida v. Casal, 462 U. S. 637, 639 (1983) 
(Burger, C. J ., concurring), the issues discussed were all the primary 
issues advanced, briefed, and argued by the petitioners in this Court or re­
lated directly to the Court’s basis for deciding the case. To be sure, some 
of the discussion in these separate statements might be parsimoniously 
viewed as “[unjnecessary to the disposition of the case or petition.” Ante, 
at 3, n. 5. But under this approach, many dissenting opinions and dissents 
from the denial of certiorari would have to be condemned as well. More 
important, in none of these separate statements was it even suggested that 
it would be proper to overturn a state court judgment on issues that had 
not been briefed and argued by petitioner in this Court, as the Court does
today. Finally, in Colorado v. Connelly, 474 U. S .----- (1986), and New
Jersey v. T. L. 0 ., 468 U. S. 1214 (1984), we directed briefing and argu­
ment on particular questions before deciding them. Such a procedure 
serves the desirable end of ensuring that the issues which the Court wishes 
to consider will be fully briefed and argued. My suggestion that the Court 
hear reargument of this case serves the same end.



BATSON v. KENTUCKY

II
Because the Court nonetheless chooses to decide this case 

on the equal protection grounds not presented, it may be use­
ful to discuss this issue as well. The Court acknowledges, 
albeit in a footnote, the “ ‘very old credentials’ ” of the pe­
remptory challenge and “ ‘the widely held belief that peremp­
tory challenge is a necessary part of trial by jury. ’ ” Ante, at 
10, n. 15 (quoting Swain, 380 U. S., at 219). But proper 
resolution of this case requires more than a nodding refer­
ence to the purpose of the challenge. Long ago it was recog­
nized that “[t]he right of challenge is almost essential for the 
purpose of securing perfect fairness and impartiality in a 
trial.” W. Forsyth, History of Trial by Jury 175 (1852). 
The peremptory challenge has been in use without scrutiny 
into its basis for nearly as long as juries have existed. “It 
was in use amongst the Romans in criminal cases, and the 
Lex Servilia (B.C. 104) enacted that the accuser and the ac­
cused should severally propose one hundred judices, and that 
each might reject fifty from the list of the other, so that one 
hundred would remain to try  the alleged crime.” Ibid,.; see 
also J. Pettingal, An Enquiry into the Use and Practice of 
Juries Among the Greeks and Romans 115, 135 (1769).

In Swain J u s t ic e  W h it e  traced the development of the 
peremptory challenge from the early days of the jury trial in 
England:

“In all trials for felonies at common law, the defendant 
was allowed to challenge peremptorily 35 jurors, and the 
prosecutor originally had a right to challenge any num­
ber of jurors without cause, a right which was said to 
tend to ‘infinite delayes and danger.’ Coke on Littleton 
156 (14th ed. 1791). Thus The Ordinance for Inquests, 
33 Edw. 1, Stat. 4 (1305), provided that if ‘they that sue 
for the King will challenge any . . . Jurors, they shall as­
sign . . .  a Cause certain.’ So persistent was the view 
that a proper jury trial required peremptories on both 
sides, however, that the statute was construed to allow



BATSON v. KENTUCKY 9

the prosecution to direct any juror after examination to 
‘stand aside’ until the entire panel was gone over and the 
defendant had exercised his challenges; only if there was 
a deficiency of jurors in the box at that point did the 
Crown have to show cause in respect to jurors recalled to 
make up the required number. Peremptories on both 
sides became the settled law of England, continuing in 
the above form until after the separation of the Colo­
nies.” 380 U. S., at 212-213 (footnotes omitted).

Peremptory challenges have a venerable tradition in this 
country as well:

“In the federal system, Congress early took a part of the 
subject in hand in establishing that the defendant was 
entitled to 35 peremptories in trials for treason and 20 in 
trials for other felonies specified in the 1790 Act as pun­
ishable by death, 1 Stat. 119 (1790). In regard to trials 
for other offenses without the 1790 statute, both the 
defendant and the Government were thought to have a 
right of peremptory challenge, although the source of 
this right was not wholly clear. . . .

“The course in the States apparently paralleled that in 
the federal system. The defendant’s right of challenge 
was early conferred by statute, the number often cor­
responding to the English practice, the prosecution was 
thought to have retained the Crown’s common-law right 
to stand aside, and by 1870, most if not all, States had 
enacted statutes conferring on the prosecution a sub­
stantial number of peremptory challenges, the number 
generally being at least half, but often equal to, the num­
ber had by the defendant.” Id., at 214-216 (footnotes 
omitted).

The Court’s opinion, in addition to ignoring the teachings 
of history, also contrasts with Swain in its failure to even dis­
cuss the rationale of the peremptory challenge. Swain 
observed:



10 BATSON v. KENTUCKY

“The function of the challenge is not only to eliminate 
extremes of partiality on both sides, but to assure the 
parties that the jurors before whom they try  the case 
will decide on the basis of the evidence placed for them, 
and not otherwise. In this way the peremptory satisfies 
the rule that ‘to perform its high function in the best 
way, justice must satisfy the appearance of justice.’” 
Id., at 219 (quoting In  re Murchison, 349 U. S. 133, 136 
(1955) (internal quotation omitted)).

Permitting unexplained peremptories has long been regarded 
as a means to strengthen our jury system in other ways as 
well. One commentator has recognized:

“The peremptory, made without giving any reason, 
avoids trafficking in the core of truth in most common 
stereotypes. . . . Common human experience, common 
sense, psychosociological studies, and public opinion 
polls tell us that it is likely that certain classes of people 
statistically have predispositions that would make them 
inappropriate jurors for particular kinds of cases. But 
to allow this knowledge to be expressed in the evaluative 
terms necessary for challenges for cause would undercut 
our desire for a society in which all people are judged as 
individuals and in which each is held reasonable and open 
to compromise. . . .  [For example,] [although experi­
ence reveals that black males as a class can be biased 
against young alienated blacks who have not tried to join 
the middle class, to enunciate this in the concrete ex­
pression required of a challenge for cause is societally 
divisive. Instead we have evolved in the peremptory 
challenge a system that allows the covert expression of 
what we dare not say but know is true more often than 
not.” Babcock, Voir Dire: Preserving “Its Wonderful 
Power,” 27 Stan. L. Rev. 545, 553-554 (1975).

For reasons such as these, this Court concluded in Swain 
that “the [peremptory] challenge is ‘one of the most impor-



BATSON v. KENTUCKY 11

tant of the rights’” in our justice system. Swain, 380 U. S., 
at 219 (quoting Pointer v. United States, 151 U. S. 396, 408 
(1894)). For close to a century, then, it has been settled that 
“[t]he denial or impairment of the right is reversible error 
without a showing of prejudice.” Swain, supra, at 219 citing 
Lewis v. United States, 146 U. S. 370 (1892)).

Instead of even considering the history or function of 
the peremptory challenge, the bulk of the Court’s opinion is 
spent recounting the well-established principle that inten­
tional exclusion of racial groups from jury venires is a 
violation of the Equal Protection Clause. I too reaffirm that 
principle, which has been a part of our constitutional tradi­
tion since at least Strauder v. West Virginia, 100 U. S. 303 
(1880). But if today’s decision is nothing more than mere 
“application” of the “principles announced in Strauder,” as 
the Court maintains, ante, at 9, some will consider it curious 
that the application went unrecognized for over a century. 
The Court in Swain had no difficulty in unanimously conclud­
ing that cases such as Strauder did not require inquiry into 
the basis for a peremptory challenge. See post, at 2-4 
(R e h n q u is t , J., dissenting). More recently we held that 
“[defendants are not entitled to a jury of any particular 
composition . . . .” Taylor v. Louisiana, 419 U. S., at 538.

A moment’s reflection quickly reveals the vast differences 
between the racial exclusions involved in Strauder and the 
allegations before us today:

“Exclusion from the venire summons process implies 
that the government (usually the legislative or judicial 
branch) . . . has made the general determination that 
those excluded are unfit to try  any case. Exercise of 
the peremptory challenge, by contrast, represents the 
discrete decision, made by one of two or more opposed 
litigants in the trial phase of our adversary system of 
justice, that the challenged venireperson will likely be 
more unfavorable to that litigant in that particular case 
than others on the same venire.



12 BATSON v. KENTUCKY

“Thus, excluding a particular cognizable group from all 
venire pools is stigmatizing and discriminatory in several 
interrelated ways that the peremptory challenge is not. 
The former singles out the excluded group, while indi­
viduals of all groups are equally subject to peremptory 
challenge on any basis, including their group affiliation. 
Further, venire-pool exclusion bespeaks a priori across- 
the-board total unfitness, while peremptory-strike exclu­
sion merely suggests potential partiality in a particular 
isolated case. Exclusion from venires focuses on the in­
herent attributes of the excluded group and infers its 
inferiority, but the peremptory does not. To suggest 
that a particular race is unfit to judge in any case neces­
sarily is racially insulting. To suggest that each race 
may have its own special concerns, or even may tend to 
favor its own, is not.” United States v. Leslie, 783 F. 2d 
541, 554 (CA5 1986) (en banc).

Unwilling to rest solely on jury venire cases such as 
Strauder, the Court also invokes general equal protection 
principles in support of its holding. But peremptory chal­
lenges are often lodged, of necessity, for reasons “normally 
thought irrelevant to legal proceedings or official action, 
namely, the race, religion, nationality, occupation or affili­
ations of people summoned for jury duty.” Swain, supra, at 
220. Moreover, in making peremptory challenges, both the 
prosecutor and defense attorney necessarily act on only lim­
ited information or hunch. The process can not be indicted 
on the sole basis that such decisions are made on the basis of 
“assumption” or “intuitive judgment.” Ante, at 17. As a 
result, unadulterated equal protection analysis is simply in­
applicable to peremptory challenges exercised in any particu­
lar case. A clause that requires a minimum “rationality” in 
government actions has no application to “ ‘an arbitrary and 
capricious right,’” Swain, supra, at 219 (quoting Lewis v. 
United States, supra, at 378); a constitutional principle that 
may invalidate state action on the basis of “stereotypic



BATSON v. KENTUCKY 13

notions,” Mississippi University for Women v. Hogan, 458 
U. S. 718, 725 (1982), does not explain the breadth of a proce­
dure exercised on the “ ‘sudden impressions and unaccount­
able prejudices we are apt to conceive upon the bare looks 
and gestures of another.’” Lewis, supra, at 376 (quoting 4 
W. Blackstone, Commentaries *353).

That the Court is not applying conventional equal protec­
tion analysis is shown by its limitation of its new rule to alle­
gations of impermissible challenge on the basis of race; the 
Court’s opinion clearly contains such a limitation. See ante, 
at 16 (emphasis added) (to establish a prima facie case, “the 
defendant first must show that he is a member of a cognizable 
racial group”)-, ibid, (emphasis added) (“[fjinally, the defend­
ant must show that these facts and any other relevant cir­
cumstances raise an inference that the prosecutor used that 
practice to exclude the veniremen from the petit jury on ac­
count of their race”). But if conventional equal protection 
principles apply, then presumably defendants could object to 
exclusions on the basis of not only race, but also sex, Craig v. 
Boren, 429 U. S. 190 (1976); age, Massachusetts Bd. of 
Retirement v. Murgia, 427 U. S. 307 (1976); religious or po­
litical affiliation, Karcher v. Daggett, 462 U. S. 725, 748 
(1983) (S t e v e n s , J., concurring); mental capacity, City of
Cleburne v. Cleburne Living Center, Inc., 473 U. S. -----
(1985); number of children, Dandridge v. Williams, 397 U. S. 
471 (1970); living arrangements, Department of Agriculture 
v. Moreno, 413 U. S. 528 (1973); and employment in a par­
ticular industry, Minnesota v. Clover Leaf Creamery Co., 
449 U. S. 456 (1981), or profession, Williamson v. Lee Opti­
cal Co., 348 U. S. 483 (1955).4

In short, it is quite probable that every peremptory chal­
lenge could be objected to on the basis that, because it ex-

4 While all these distinctions might support a claim under conventional 
equal protection principles, a defendant would also have to establish 
standing to raise them before obtaining any relief. See Alexander v. 
Louisiana, 405 U. S. 625, 633 (1972).



14 BATSON v. KENTUCKY

eluded a venireman who had some characteristic not shared 
by the remaining members of the venire, it constituted a 
“classification” subject to equal protection scrutiny. See 
McCray v. Abrams, 750 F. 2d 1113, 1139 (CA2 1984) 
(Meskill, J,, dissenting). Compounding the difficulties, 
under conventional equal protection principles some uses of 
peremptories would be reviewed under “strict scrutiny and 
. . . sustained only i f . . . suitably tailored to serve a compel­
ling state interest,” City of Cleburne, supra, a t ----- ; others
would be reviewed to determined if they were “substantially 
related to a sufficiently important government interest,” id.,
at ----- ; and still others would be reviewed to determine
whether they were “a rational means to serve a legitimate 
end.” Id. a t ----- .

The Court never applies this conventional equal protection 
framework to the claims at hand, perhaps to avoid acknowl­
edging that the state interest involved here has historically 
been regarded by this Court as substantial, if not compelling. 
Peremptory challenges have long been viewed as a means to 
achieve an impartial jury that will be sympathetic toward 
neither an accused nor witnesses for the State on the basis 
of some shared factor of race, religion, occupation, or other 
characteristic. Nearly a century ago the Court stated that 
the peremptory challenge is “essential to the fairness of trial 
by jury .” Lewis v. United States, 146 U. S., at 376. Under 
conventional equal protection principles, a state interest of 
this magnitude and ancient lineage might well overcome an 
equal protection objection to the application of peremptory 
challenges. However, the Court is silent on the strength of 
the state’s interest, apparently leaving this issue, among 
many others, to the further “litigation [that] will be required 
to spell out the contours of the Court’s Equal Protection hold­
ing today . . . .” Ante, at 2 (White, J., concurring).5

6 The Court is also silent on whether a State may demonstrate that its 
use of peremptories rests not merely on “assumptions,” ante, at 17, but on 
sociological studies or other similar foundations. See Saltzburg & Powers,



BATSON v. KENTUCKY 15

The Court also purports to express “no views on whether 
the Constitution imposes any limit on the exercise of peremp­
tory challenges by defense counsel.” Ante, at 8 (emphasis 
added). But the clear and inescapable import of this novel 
holding will inevitably be to limit the use of this valuable tool 
to both prosecutors and defense attorneys alike. Once the 
Court has held that prosecutors are limited in their use of 
peremptory challenges, could we rationally hold that defend­
ants are not?6 “Our criminal justice system ‘requires not 
only freedom from any bias against the accused, but also from 
any prejudice against his prosecution. Between him and 
the state the scales are to be evenly held.’” Ante, at 6 
(Marshall, J ., concurring in part) (quoting H a yes  v. Mis­
souri, 120 U. S. 68, 70 (1887)).

Rather than applying straightforward equal protection 
analysis, the Court substitutes for the holding in Swain a cu­
rious hybrid. The defendant must first establish a “prima 
facie case,” ante, at 13, of invidious discrimination, then the 
“burden shifts to the State to come forward with a neutral 
explanation for challenging black jurors.” Ante, at 16. The 
Court explains that “the operation of prima facie burden of 
proof rules” is established in “[o]ur decisions in the context of 
Title VII ‘disparate treatment’ . . . Ante, at 13. The 
Court then adds, borrowing again from a Title VII case, that 
“the prosecutor must give a ‘clear and reasonably specific’ 
explanation of his ‘legitimate reasons’ for exercising the chal-

Peremptory Challenges and the Clash Between Impartiality and Group 
Representation, 41 Md. L. Rev. 337, 365, and n. 124 (1982). For “[i]f the 
assessment of a juror’s prejudices based on group affiliation is accurate, 
. . . then counsel has exercised the challenge as it was intended—to 
remove the most partial jurors.” Id., at 365.

6“[E]very jurisdiction which has spoken to the matter, and prohibited 
prosecution case-specific peremptory challenges on the basis of cognizable 
group affiliation, has held that the defense must likewise be so prohibited.” 
United States v. Leslie, 783 F. 2d 541, 565 (CA5 1986) (en banc).



16 BATSON v. KENTUCKY

lenges.” Ante, at 17, n. 20 (quoting Texas Dept, of Commu­
nity Affairs v. Burdine, 450 U. S. 248, 258 (1981)).7

While undoubtedly these rules are well suited to other con­
texts, particularly where (as with Title VII) they are re­
quired by an act of Congress,8 they seem curiously out of 
place when applied to peremptory challenges in criminal 
cases. Our system permits two types of challenges: chal­
lenges for cause and peremptory challenges. Challenges for 
cause obviously have to be explained; by definition, peremp­
tory challenges do not. “It is called a peremptory challenge, 
because the prisoner may challenge peremptorily, on his own 
dislike, without showing of any cause.” H. Joy, On Peremp­
tory Challenge of Jurors 1 (1844) (emphasis added). Analyti­
cally, there is no middle ground: A challenge either has to be 
explained or its does not. It is readily apparent, then, that 
to permit inquiry into the basis for a peremptory challenge 
would force “the peremptory challenge [to] collapse into the 
challenge for cause.” United States v. Clark, 737 F. 2d 679, 
682 (CA7 1984). Indeed, the Court recognized without dis­
sent in Swain that, if scrutiny were permitted, “[t]he chal­
lenge, pro tanto, would no longer be peremptory, each and 
every challenge being open to examination, either at the time

7 One court has warned that overturning Swain has “[t]he potential for 
stretching out criminal trials that are already too long, by making the voir 
dire a Title VII proceeding in miniature.” United States v. Clark, 737 F. 
2d 679, 682 (CA7 1984). That “potential” is clearly about to be realized.

8 It is worth observing that Congress has been unable to locate the 
Constitutional deficiencies in the peremptory challenge system that the 
Court discerns today. As the Solicitor General explains in urging a rejec­
tion of the Sixth Amendment issue presented by this petition and an af­
firmance of the decision below, “[i]n reconciling the traditional peremptory 
challenge system with the requirements of the Sixth Amendment it is in­
structive to consider the accommodation made by Congress in the Jury Se­
lection and Service Act of 1968, 28 U. S. C. 1861 et seq. . . . [T]he House 
Report makes clear th a t . . . ‘the bill leaves undisturbed the right of a liti­
gant to exercise his peremptory challenges to eliminate jurors for purely 
subjective reasons.” ’ Brief for the United States at 20, n. 11 (quoting 
H. R. Rep. No. 1076, 90th Cong., 2d Sess., 5-6 (1968)).



BATSON v. KENTUCKY 17

of the challenge or at a hearing afterwards.” Swain, supra, 
at 222.

Confronted with the dilemma it created, the Court today 
attempts to decree a middle ground. To rebut a prima facie 
case, the Court requires a “neutral explanation” for the chal­
lenge, but is at pains to “emphasize” that the “explanation 
need not rise to the level justifying exercise of a challenge for 
cause.” Ante, at 16-17. I am at a loss to discern the gov­
erning principles here. A “clear and reasonably specific” ex­
planation of “legitimate reasons” for exercising the challenge 
will be difficult to distinguish from a challenge for cause. 
Anything short of a challenge for cause may well be seen as 
an “arbitrary and capricious” challenge, to use Blackstone’s 
characterization of the peremptory. See 4 W. Blackstone, 
Commentaries *353. Apparently the Court envisions per­
missible challenges short of a challenge for cause that are just 
a little bit arbitrary—but not too much. While our trial 
judges are “experienced in supervising voir dire,” ante, at 16, 
they have no experience in administering rules like this.

An example will quickly demonstrate how today’s holding, 
while purporting to “further the ends of justice,” ante, at 18, 
will not have that effect. Assume an Asian defendant, on 
trial for the capital murder of a white victim, asks prospec­
tive jury members, most of whom are white, whether they 
harbor racial prejudice against Asians. See Turner v. Mur­
ray, ----- U. S .------ , ------(1986). The basis for such a ques­
tion is to flush out any “juror who believes that [Asians] are 
violence-prone or morally inferior . . .  .” Id., a t —— .9 As­
sume further that all white jurors deny harboring racial prej­
udice but that the defendant, on trial for his life, remains un­
convinced by these protestations. Instead, he continues to

9 This question, required by Turner in certain capital cases, demon­
strates the inapplicability of traditional equal protection analysis to a jury 
voir dire seeking an impartial jury. Surely the question rests on gen­
eralized, stereotypic racial notions that would be condemned on equal 
protection grounds in other contexts.



18 BATSON v. KENTUCKY

harbor a hunch, an “assumption” or “intuitive judgment,” 
ante, at 17, that these white jurors will be prejudiced against 
him, presumably based in part on race. The time honored 
rule before today was that peremptory challenges could be 
exercised on such a basis. The Court explained in Lewis v. 
United States,

“how necessary it is that a prisoner (when put to defend 
his life) should have good opinion of his jury, the want of 
which might totally disconcert him; the law wills not that 
he should be tried by any one man against whom he has 
conceived a prejudice even without being able to assign a 
reason for such his dislike.” 146 U. S., at 376.

The effect of the Court’s decision, however, will be to force 
the defendant to come forward and “articulate a neutral 
explanation,” ante, at 17, for his peremptory challenge, a 
burden he probably cannot meet. This example demon­
strates that today’s holding will produce juries that the par­
ties do not believe are truly impartial. This will surely do 
more than “disconcert” litigants; it will diminish confidence in 
the jury system.

A further painful paradox of the Court’s holding is that it is 
likely to interject racial matters back into the jury selection 
process, contrary to the general thrust of a long line of Court 
decisions and the notion of our country as a “melting pot.” 
In Avery v. Georgia, 345 U. S. 559 (1953), for instance, the 
Court confronted a situation where the selection of the venire 
was done through the selection of tickets from a box; the 
names of whites were printed on tickets of one color and 
the names of blacks were printed on different color tickets. 
The Court had no difficulty in striking down such a scheme. 
Justice Frankfurter observed that “opportunity for working 
of a discriminatory system exists whenever the mechanism 
for jury selection has a component part, such as the slips 
here, that differentiates between white and colored . . . .” 
Id., at 564 (Frankfurter, J., concurring) (emphasis added).



BATSON v. KENTUCKY 19

Today we mark the return of racial differentiation as the 
Court accepts a positive evil for a perceived one. Prosecu­
tors and defense attorney’s alike will build records in support 
of their claims that peremptory challenges have been exer­
cised in a racially discriminatory fashion by asking jurors to 
state their racial background and national origin for the 
record, despite the fact that “such questions may be offensive 
to some jurors and thus are not ordinarily asked on voir 
dire.” People v. Motton, 39 Cal. 3d 596, 604, 704 P. 2d 
176, 180, modified, 40 Cal. 3d 4b (1985) (advance sheet).10 
This process is sure to tax even the most capable counsel and 
judges since determining whether a prima facie case has 
been established will “require a continued monitoring and 
recording of the ‘group’ composition of the panel present 
and prospective . . . .” People v. Wheeler, 22 Cal. 3d 
258, 294, 583 P. 2d 748, 773 (1978) (Richardson, J., 
dissenting).

Even after a “record” on this issue has been created, 
disputes will inevitably arise. In one case, for instance, a 
conviction was reversed based on the assumption that no 
blacks were on the jury that convicted a defendant. See 
People v. Motten, supra. However, after the court’s deci­
sion was announced, Carolyn Pritchett, who had served on 
the jury, called the press to state that the court was in error 
and that she was black. 71 A. B. A. J. 22 (Nov. 1985). The 
California court nonetheless denied a rehearing petition.11

10 The California Supreme Court has attempted to finesse this problem 
by asserting that “discrimination is more often based on appearances than 
verified racial descent, and a showing that the prosecution was systemati­
cally excusing persons who appear to be Black would establish a prima 
facie case” of racial discrimination. People v. Motton, 39 Cal. 3d, at 604, 
704 P. 2d, at 180. This suggests, however, that proper inquiry here 
concerns not the actual race of the jurors who are excluded, but rather 
counsel’s subjective impressions as to what race they spring from. It is 
unclear just how a “record” of such impressions is to made.

11 Similar difficulties may lurk in this case on remand. The Court states 
as fact that “a jury composed only of white persons was selected.” Ante,



20 BATSON v. KENTUCKY

The Court does not tarry long over any of these difficult, 
sensitive problems, preferring instead to gloss over them as 
swiftly as it slides over centuries of history: “[W]e make no 
attempt to instruct [trial] courts on how best to implement 
our holding today.” Ante, at 19, n. 24. That leaves roughly 
7,000 general jurisdiction state trial judges and approxi­
mately 500 federal trial judges at large to find their way 
through the morass the Court creates today. The Court es­
sentially wishes these judges well as they begin the difficult 
enterprise of sorting out the implications of the Court’s newly 
created “right.” I join my colleagues in wishing the nation’s 
judges well as they struggle to grasp how to implement to­
day’s holding. To my mind, however, attention to these “im­
plementation” questions leads quickly to the conclusion that 
there is no “best” way to implement the holding, let alone a 
“good” way. As one apparently frustrated judge explained 
after reviewing a case under a rule like that promulgated by 
the Court today, judicial inquiry into peremptory challenges

“from case to case will take the courts into the quagmire 
of quotas for groups that are difficult to define and even 
more difficult to quantify in the courtroom. The pursuit 
of judicial perfection will require both trial and appellate 
courts to provide speculative and impractical answers to 
artificial questions.” Holley v. J  & S Sweeping Co., 143 
Cal. App. 3d 588, 595-596, 192 Cal. Rptr. 74, 79 (1983) 
(Holmdahl, J., concurring) (footnote omitted).

The Court’s effort to “further the ends of justice,” ante, at 18, 
and achieve hoped for utopian bliss may be admired, but it is 
far more likely to enlarge the evil “sporting contest” theory 
of criminal justice roundly condemned by Roscoe Pound al-

at 2. The only basis for the Court’s finding is the prosecutor’s statement, 
in response to a question from defense counsel, that “[i]n looking at them, 
yes; it’s an all-white jury.” App. 3.

It should also be underscored that the Court today does not hold that 
petitioner has established a “prima facie case” entitling him to any form of 
relief. Ante, at 19-20.



BATSON v. KENTUCKY 21

most 80 years ago to the day. See Pound, Causes of Popular 
Dissatisfaction with the Administration of Justice, August 
29, 1906, reprinted in The Pound Conference: Perspectives 
on Justice in the Future 337 (A. Levin & R. Wheeler eds. 
1979). Pound warned then that “too much of the current 
dissatisfaction has a just origin in our judicial organization 
and procedure.” Id ., at 352. I am afraid that today’s newly 
created constitutional right will justly give rise to similar 
disapproval.

I l l
I also add my assent to J u s t ic e  W h i t e ’s conclusion that 

today’s decision does not apply retroactively. Ante, at 2-3 
(W h i t e , J . ,  concurring); see also ante, at 1 (O’C o n n o r , J . ,  
concurring). We held in Solem v. Stumes, 465 U. S. 638, 
643 (1984), that

“ ‘[t]he criteria guiding resolution of the [retroactivity] 
question implicate (a) the purpose to be served by the 
new standards, (b) the extent of the reliance by law en­
forcement authorities on the old standards, and (c) the 
effect on the administration of justice of a retroactive 
application of the new standards.’ Stovall v. Denno, 
388 U. S. 293, 297 (1967).”

If we are to ignore Justice Harlan’s admonition that making 
constitutional changes prospective only “cuts this Court loose 
from the force of precedent,” Mackey v. United States, 401 
U. S. 667, 680 (1971) (Harlan, J ., concurring in judgment), 
then all three of these factors point conclusively to a nonret­
roactive holding. With respect to the first factor, the new 
rule the Court announces today is not designed to avert “the 
clear danger of convicting the innocent.” Tehan v. Shott, 
382 U. S. 406, 416 (1966). Second, it readily apparent that 
“law enforcement authorities and state courts have justifi­
ably relied on a prior rule of law . . . .” Solem, 465 U. S., at 
645-646. Today’s holding clearly “overruled] [a] prior deci­
sion” and drastically “transform[s] standard practice.” Id.,



22 BATSON v. KENTUCKY

at 647. This fact alone “virtually compels]” the conclusion 
of nonretroactivity. United States v. Johnson, 457 U. S. 
537, 549-550 (1982). Third, applying today’s decision retro­
actively obviously would lead to a whole host of problems, if 
not u tter chaos. Determining whether a defendant has 
made a “prima facie showing” of invidious intent, ante, at 16, 
and, if so, whether the State has a sufficient “neutral ex­
planation” for its actions, ibid., essentially requires re­
constructing the entire voir dire, something that will be ex­
tremely difficult even if undertaken soon after the close of the 
trial.12 In most cases, therefore, retroactive application of 
today’s decision will be “a virtual impossibility.” State v. 
Neil, 457 So. 2d 481, 488 (Fla. 1984).

In sum, under our prior holdings it is impossible to con­
struct even a colorable argument for retroactive application. 
The few States that have adopted judicially-created rules 
similar to that announced by the Court today have all refused 
full retroactive application. See People v. Wheeler, 22 Cal. 
3d, at 283, n. 31, 583 P. 2d, at 766, n. 31; State v. Neil, 
supra, at 488; Commonwealth v. Soares, 377 Mass. 461, 493, 
n. 38, 387 N. E. 2d 499, 518, n. 38, cert, denied, 444 U. S. 
881 (1979).18 I therefore am persuaded by J u s t ic e  W h i t e ’s 
position, ante, at 2-3 (W h i t e , J . ,  concurring), that today’s 
novel decision is not to be given retroactive effect.

IV
An institution like the peremptory challenge that is part 

of the fabric of our jury system should not be casually cast 
aside, especially on a basis not raised or argued by the 
petitioner. As one commentator aptly observed:

12 Petitioner concedes that it would be virtually impossible for the 
prosecutor in this case to recall why he used his peremptory challenges in 
the fashion he did. Brief for Petitioner 35.

13 Although Delaware has suggested that it might follow a rule like that 
adopted by the Court today, see Riley v. State, 496 A. 2d 997 (Del. 1985), 
the issue of retroactive application of the rule does not appear to have been 
litigated in a published decision.



BATSON v. KENTUCKY 23

“The real question is whether to tinker with a system, 
be it of jury selection or anything else, that has done the 
job for centuries. We stand on the shoulders of our an­
cestors, as Burke said. It is not so much that the past is 
always worth preserving, he argued, but rather that ‘it 
is with infinite caution that any man ought to venture 
upon pulling down an edifice, which has answered in any 
tolerable degree for ages the common purposes of soci­
ety. . Younger, Unlawful Peremptory Challenges, 7 
Litigation 23, 56 (Fall 1980).

At the very least, this important case reversing centuries of 
history and experience ought to be set for reargument next 
Term.



SUPREME COURT OF THE UNITED STATES

No. 84-6263

JAMES KIRKLAND BATSON, PETITIONER 
v. KENTUCKY

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF KENTUCKY

[April 30, 1986]

J u s t ic e  R e h n q u is t , with whom T h e  C h i e f  J u s t ic e  
joins, dissenting.

The Court states, in the opening line of its opinion, that 
this case involves only a reexamination of that portion of 
Swain v. Alabama, 380 U. S. 202 (1965), concerning “the 
evidentiary burden placed on a criminal defendant who claims 
that he has been denied equal protection through the State’s 
use of peremptory challenges to exclude members of his race 
from the petit jury.” Ante, at 1 (footnote omitted). But 
in reality the majority opinion deals with much more than 
“evidentiary burden[s].” With little discussion and less 
analysis, the Court also overrules one of the fundamental 
substantive holdings of Swain, namely, that the State may 
use its peremptory challenges to remove from the jury, on a 
case-specific basis, prospective jurors of the same race as the 
defendant. Because I find the Court’s rejection of this hold­
ing both ill-considered and unjustifiable under established 
principles of equal protection, I dissent.

In Swain, this Court carefully distinguished two possible 
scenarios involving the State’s use of its peremptory chal­
lenges to exclude blacks from juries in criminal cases. In 
Part III of the majority opinion, the Swain Court concluded 
that the first of these scenarios, namely, the exclusion of 
blacks “for reasons wholly unrelated to the outcome of the 
particular case on t r i a l . . .  to deny the Negro the same right



2 BATSON v. KENTUCKY

and opportunity to participate in the adminstration of justice 
enjoyed by the white population,” 380 U. S., at 224, might 
violate the guarantees of equal protection. See id., at 
222-228. The Court felt that the important and historic pur­
poses of the peremptory challenge were not furthered by the 
exclusion of blacks “in case after case, whatever the circum­
stances, whatever the crime and whoever the defendant or 
the victim may be.” Id., at 223 (emphasis added). Never­
theless, the Court ultimately held that “the record in this 
case is not sufficient to demonstrate that th[is] rule has been 
violated . . . .  Petitioner has the burden of proof and he has 
failed to carry it.” Id., at 224, 226. Three Justices dis­
sented, arguing that the petitioner’s evidentiary burden was 
satisfied by testimony that no black had ever served on a 
petit jury in the relevant county. See id., at 228-247 (Gold­
berg, J ., joined by Warren, C. J., and Douglas, J., 
dissenting).

Significantly, the Swain Court reached a very different 
conclusion with respect to the second kind of peremptory- 
challenge scenario. In Part II of its opinion, the Court held 
that the State’s use of peremptory challenges to exclude 
blacks from a particular jury based the assumption or belief 
that they would be more likely to favor a black defendant 
does not violate equal protection. Id ., at 209-222. J u s t ic e  
W h i t e , writing for the Court, explained:

“While challenges for cause permit rejection of jurors on 
a narrowly specified, provable and legally cognizable 
basis of partiality, the peremptory permits rejection for 
a real or imagined partiality that is less easily desig­
nated or demonstrable. Hayes v. Missouri, 120 U. S. 
68, 70 [1887]. It is often exercised upon the ‘sudden im­
pressions and unaccountable prejudices we are apt to 
conceive upon the bare looks and gestures of another,’ 
Leivis [v. United States, 146 U. S. 370,] 376 [1892], upon 
a juror’s ‘habits and associations,’ Hayes v. Missouri,



BATSON v. KENTUCKY 3

supra, at 70, or upon the feeling that ‘the bare question­
ing [a juror’s] indifference may sometimes provoke a re­
sentment,’ Lewis, supra, at 376. It is no less frequently 
exercised on grounds normally thought irrelevant to 
legal proceedings or official action, namely, the race, re­
ligion, nationality, occupation or affiliations of people 
summoned for jury duty. For the question a prosecutor 
or defense counsel must decide is not whether a juror of 
a particular race or nationality is in fact partial, but 
whether one from a different group is less likely to be.
. . . Hence veniremen are not always judged solely as 
individuals for the purpose of exercising peremptory 
challenges. Rather they are challenged in light of the 
limited knowledge counsel has of them, which may in­
clude their group affiliations, in the context of the case 
to be tried.

With these considerations in mind, we cannot hold that 
the striking of Negroes in a particular case is a denial of 
equal protection of the laws. In the quest for an impar­
tial and qualified jury, Negro and white, Protestant and 
Catholic, are alike subject to being challenged without 
cause. To subject the prosecutor’s challenge in any par­
ticular case to the demands and traditional standards of 
the Equal Protection Clause would entail a radical 
change in the nature and operation of the challenge. 
The challenge, pro tanto, would no longer be peremptory 
. . . .” Id., at 220-222 (emphasis added; footnotes 
omitted).

At the beginning of Part III of the opinion, the Swain Court 
reiterated: “We have decided that it is permissible to insulate 
from inquiry the removal of Negroes from a particular jury 
on the assumption that the prosecutor is acting on acceptable 
considerations related to the case he is trying, the particular 
defendant involved and the particular crime charged.” Id., 
at 223 (emphasis added).



4 BATSON v. KENTUCKY

Even the Swain dissenters did not take issue with the ma­
jority’s position that the Equal Protection Clause does not 
prohibit the State from using its peremptory challenges to 
exclude blacks based on the assumption or belief that they 
would be partial to a black defendant. The dissenters em­
phasized that their view concerning the evidentiary burden 
facing a defendant who alleges an equal protection claim 
based on the State’s use of peremptory challenges “would 
[not] mean that where systematic exclusion of Negroes from 
jury service has not been shown, a prosecutor’s motives are 
subject to question or judicial inquiry when he excludes Ne­
groes or any other group from sitting on a jury in a particu­
lar case.” Id'., at 245 (Goldberg, J., dissenting) (emphasis 
added).

The Court today asserts, however, that “the Equal Protec­
tion Clause forbids the prosecutor to challenge potential ju ­
rors solely . . .  on the assumption that black jurors as a group 
will be unable impartially to consider the state’s case against 
a black defendant.” Ante, at 9. Later, in discussing the 
State’s need to establish a nondiscriminatory basis for strik­
ing blacks from the jury, the Court states that “the prosecu­
tor may not rebut the defendant’s prima facie case of dis­
crimination by stating merely that he challenged jurors of the 
defendant’s race on the assumption—or his intuitive judg­
ment—that they would be partial to the defendant simply be­
cause of their shared race.” Ante, at 17. Neither of these 
statements has anything to do with the “evidentiary burden” 
necessary to establish an equal protection claim in this con­
text, and both statements are directly contrary to the view of 
the Equal Protection Clause shared by the majority and the 
dissenters in Swain. Yet the Court in the instant case offers 
absolutely no analysis in support of its decision to overrule 
Swain in this regard, and in fact does not discuss Part II of 
the Swain opinion at all.

I cannot subscribe to the Court’s unprecedented use of the 
Equal Protection Clause to restrict the historic scope of the



BATSON v. KENTUCKY 5

peremptory challenge, which has been described as “a neces­
sary part of trial by jury.” Swain, 380 U. S., at 219. In my 
view, there is simply nothing “unequal” about the State using 
its peremptory challenges to strike blacks from the jury in 
cases involving black defendants, so long as such challenges 
are also used to exclude whites in cases involving white de­
fendants, Hispanics in cases involving Hispanic defendants, 
Asians in cases involving Asian defendants, and so on. This 
case-specific use of peremptory challenges by the State does 
not single out blacks, or members of any other race for that 
matter, for discriminatory treatm ent.1 Such use of 
peremptories is at best based upon seat-of-the-pants in­
stincts, which are undoubtedly crudely stereotypical and may 
in many cases be hopelessly mistaken. But as long as they 
are applied across the board to jurors of all races and nation­
alities, I do not see—and the Court most certainly has not ex­
plained—how their use violates the Equal Protection Clause.

Nor does such use of peremptory challenges by the State 
infringe upon any other constitutional interests. The Court 
does not suggest that exclusion of blacks from the jury 
through the State’s use of peremptory challenges results in a 
violation of either the fair cross-section or impartiality com­
ponent of the Sixth Amendment. See ante, at 4, n. 4. And 
because the case-specific use of peremptory challenges by the 
State does not deny blacks the right to serve as jurors in 
cases involving non-black defendants, it harms neither the 
excluded jurors nor the remainder of the community. See 
ante, at 6-7.

11 note that the Court does not rely on the argument that, because there 
are fewer “minorities” in a given population than there are “majorities,” 
the equal use of peremptory challenges against members of “majority” and 
“minority” racial groups has an unequal impact. The flaws in this argu­
ment are demonstrated in Judge Garwood’s thoughtful opinion for the en
banc Fifth Circuit in United States v. Leslie ,------F. 2 d -------, ------ (CA5
1986).



6 BATSON v. KENTUCKY

The use of group affiliations, such as age, race, or occupa­
tion, as a “proxy” for potential juror partiality, based on the 
assumption or belief that members of one group are more 
likely to favor defendants who belong to the same group, has 
long been accepted as a legitimate basis for the State’s exer­
cise of peremptory challenges. See Swain, supra; United
States v. Leslie,----- F. 2 d ------ (CA5 1986) (en banc); United
States v. Carter, 528 F. 2d 844 (CA 8 1975), cert, denied, 425 
U. S. 961 (1976). Indeed, given the need for reasonable 
limitations on the time devoted to voir dire, the use of such 
proxies” by both the State and the defendant2 may be ex­

tremely useful in eliminating from the jury persons who 
might be biased in one way or another. The Court today 
holds that the State may not use its peremptory challenges to 
strike black prospective jurors on this basis without violating 
the Constitution. But I do not believe there is anything in 
the Equal Protection Clause, or any other constitutional pro­
vision, that justifies such a departure from the substantive 
holding contained in Part II of Swain. Petitioner in the in­
stant case failed to make a sufficient showing to overcome the 
presumption announced in Swain that the State’s use of pe­
remptory challenges was related to the context of the case.
I would therefore affirm the judgment of the court below.

2 See, e. g., Commonwealth v. DiMatteo, 12 Mass. App. 547, 427 N. E. 
2d 754 (1981) (under State constitution, trial judge properly rejected white 
defendant s attempted peremptory challenge of black prospective juror).