Holland v. Illinois/Dissent Marshall
Justice MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, dissenting.
The Court decides today that a prosecutor's racially motivated exclusion of Afro-Americans from the petit jury does not violate the fair-cross-section requirement of the Sixth Amendment. To reach this startling result, the majority misrepresents the values underlying the fair-cross-section requirement, overstates the difficulties associated with the elimination of racial discrimination in jury selection, and ignores the clear import of well-grounded precedents. I dissent.
* Before proceeding to what the Court does decide, I pause to note what it does not. For reasons that are not immediately apparent, petitioner expressly disavows the argument that a white defendant has standing to raise an equal protection challenge, based on our decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to a prosecutor's racially motivated peremptory strikes of Afro-American venirepersons. See Brief for Petitioner 6, 17; Reply Brief for Petitioner 2; Tr. of Oral Arg. 21-23. Our grant of certiorari did not encompass the question whether a white defendant has standing to make a Batson claim, see Pet. for Cert. 1, and the parties did not brief the question; it is therefore not before us today. Recognizing this, the majority explicitly leaves open the question whether a white defendant is without standing to make such a claim. See ante, at 487. Another of the majority's statements, however, could be read to prefigure how the Court would resolve that question if faced with it. See ante, at 477 (implying "a requirement of correlation between the group identification of the defendant and the group identification of excluded venire members" for standing to raise the equal protection claim). It is important, therefore, briefly to examine the Batson question.
As a majority of this Court has now concluded, a close reading of Batson shows that a defendant's race is irrelevant to his standing to raise the equal protection claim recognized in that case. See infra, this page and 492; ante, at 488-490 (KENNEDY, J., concurring); post, at 505-508 (STEVENS, J., dissenting). Because Batson was Afro-American, it is not surprising that the Court held that he could make out a prima facie case of an equal protection violation by showing, inter alia, that "the prosecutor ha[d] exercised peremptory challenges to remove from the venire members of the defendant's race." 476 U.S., at 96, 106 S.Ct., at 1723. Nowhere did the Court state, however, that a white defendant could not make out a prima facie case based upon the exclusion of Afro-American jurors, and the logic of the Court's decision would not have supported such a conclusion.
The fundamental principle undergirding the decision in Batson was that "a 'State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.' " Id., at 84, 106 S.Ct. at 1716 (quoting Swain v. Alabama, 380 U.S. 202, 203-204, 85 S.Ct. 824, 826-827, 13 L.Ed.2d 759 (1965)). This principle, Justice Powell explained for the Court, has three bases: the right of the defendant "to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria," 476 U.S., at 85-86, 106 S.Ct., at 1717 (citing Martin v. Texas, 200 U.S. 316, 321, 26 S.Ct. 338, 339, 50 L.Ed. 497 (1906), and Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676 (1880)); the right of a member of the community not to be assumed incompetent for and be excluded from jury service on account of his race, 476 U.S., at 87, 106 S.Ct., at 1718 (citing Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880), Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 329-330, 90 S.Ct. 518, 523-524, 24 L.Ed.2d 549 (1970), and Neal v. Delaware, 103 U.S. 370, 386, 26 L.Ed. 567 (1881)); and the need to preserve "public confidence in the fairness of our system of justice," 476 U.S., at 87, 106 S.Ct., at 1718 (citing Strauder, supra, at 308, Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946), and McCray v. New York, 461 U.S. 961, 968, 103 S.Ct. 2438, 2442, 77 L.Ed.2d 1322 (1983) (MARSHALL, J., dissenting from denial of certiorari)). Although the majority implies that a defendant has a greater Fourteenth Amendment interest in being tried by a jury from which members of his race (as opposed to people of other races) have not been excluded, ante, at 476-477, I do not read the majority to suggest that a defendant of a race different from that of the people excluded has no interest in the racial composition of his jury. More fundamentally, Batson was permitted to raise not only his rights, but also those of the members of the venire and of the general public. If Batson could do so, there is no reason a white defendant cannot do so as well.
In any event, the question whether a defendant's race affects his standing to invoke Batson is one on which the Court has not ruled. For the reader who seeks guidance on how the Court would rule if the issue were presented and argued, the agreement of five Justices that a defendant's race is irrelevant to the Fourteenth Amendment standing inquiry is far more illuminating than the majority's veiled intimations and cryptic turns of phrase.
The issue that is presented and decided today is whether a prosecutor's exercise of peremptory challenges for the sole purpose of excluding Afro-Americans from a petit jury contravenes the Sixth Amendment. I think that it does.
The fundamental premise underlying the majority's analysis in this case is the assertion that the sole purpose of the Sixth Amendment's jury trial requirement is to secure for the defendant an impartial jury. The majority defends this thesis by constructing a false dichotomy: the fair-cross-section requirement either protects impartiality or guarantees a petit jury that mirrors the community from which it is drawn. From these two options, the majority selects impartiality as its governing principle. See ante, at 480 ("The Sixth Amendment requirement of fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does)"). The remainder of its analysis proceeds from and is dependent upon the assumption that impartiality is the sole end of the fair-cross-section requirement. That assumption is flatly false, and the conclusion to which it leads is one that I cannot imagine that even the majority would accept in all its implications. 
The Sixth Amendment guarantees criminal defendants the right to a trial "by an impartial jury." Obviously, then, impartiality is one concern addressed by the Amendment. Just as self-evident is the proposition that a criminal defendant is entitled to have his case decided by a "jury." We have made clear that "jury" is a term of art, and that a body of people assembled to decide a case must meet certain constitutional minimums before it qualifies as a "jury" in the constitutional sense. See, e.g., Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) (holding, without relying on the impartiality requirement, that a five-person "jury" is insufficient to satisfy Constitution's demand of a "jury" trial). Contrary to the majority's implication, the fair-cross-section requirement is not based on the constitutional demand for impartiality; it is founded on the notion that what is denominated a "jury" is not a "jury" in the eyes of the Constitution unless it is drawn from a fair cross section of the community.
Thus, in Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975), we stated:
"[T]he Court has unambiguously declared that the American concept of the jury trial contemplates a jury drawn from a fair cross section of the community. A unanimous Court stated in Smith v. Texas, 311 U.S. 128, 130 [61 S.Ct. 164, 165, 85 L.Ed. 84] (1940), that '[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.' To exclude racial groups from jury service was said to be 'at war with our basic concepts of a democratic society and a representative government.' "
Indeed, we recognized in Taylor that the fair-cross-section requirement and the impartiality requirement provide distinct protections, and that the Sixth Amendment guarantees both. Id., 419 U.S., at 536, 95 S.Ct., at 700 (acknowledging the "Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community").
That the two protections are distinct is shown as well by Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), where we reaffirmed Taylor in holding that a state law permitting women, but not men, to opt out of jury service violated the fair-cross-section requirement. Duren did not contend that any juror was biased against him. Rather, he claimed that his right to a jury trial was violated by the de facto exclusion of women from his venire. Only the dissent in Duren suggested that the Sixth Amendment serves nothing but impartiality. 439 U.S., at 370-371, 99 S.Ct., at 671-672, and n. (opinion of REHNQUIST, J.).
More recently, in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the Court, in an opinion written by Justice REHNQUIST, again confirmed that the fair-cross-section requirement and the impartiality requirement are different constitutional mandates serving different purposes. The Court therefore analyzed the two requirements separately, never suggesting that its resolution of the impartiality question in any way affected its resolution of the fair-cross-section issue. Compare id., at 174-177, 106 S.Ct., at 1765-1767 (class of prospective jurors unalterably opposed to the death penalty does not constitute "distinctive group" for purposes of the fair-cross-section requirement), with id., at 177-184, 106 S.Ct., at 1767-1770 (rejecting "alternative" argument that resulting jury was "slanted" in favor of a guilty verdict in violation of impartiality requirement).
Our precedents thus belie the majority's assertion that the fair-cross-section requirement is merely "a means of assuring" impartiality. Ante, at 480. Rather, the fair-cross-section requirement serves entirely different purposes. In Lockhart, the Court identified these purposes as "(1) 'guard[ing] against the exercise of arbitrary power' and ensuring that the 'commonsense judgment of the community' will act as 'a hedge against the overzealous or mistaken prosecutor,' (2) preserving 'public confidence in the fairness of the criminal justice system,' and (3) implementing our belief that 'sharing in the administration of justice is a phase of civic responsibility.' " 476 U.S., at 174-175, 106 S.Ct., at 1765-1766 (quoting Taylor, supra, 419 U.S., at 530-531, 95 S.Ct., at 698).
Had the majority in this case acknowledged that the fair-cross-section requirement serves these purposes, it would have been hard pressed to deny that the exclusion of Afro-Americans from petit juries on the basis of their race violates the Sixth Amendment. Indeed, in Lockhart itself, the Court noted that the exclusion of "such groups as blacks, . . . women, . . . and Mexican-Americans . . . from jury service clearly contravene[s] all three of the aforementioned purposes of the fair-cross-section requirement. Because these groups [are] excluded for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case, the exclusion raise[s] at least the possibility that the composition of juries would be arbitrarily skewed in such a way as to deny criminal defendants the benefit of the common-sense judgment of the community. In addition, the exclusion from jury service of large groups of individuals not on the basis of their inability to serve as jurors, but on the basis of some immutable characteristic such as race, gender, or ethnic background, undeniably [gives] rise to an 'appearance of unfairness.' Finally, such exclusion improperly deprive[s] members of these often historically disadvantaged groups of their right as citizens to serve on juries in criminal cases." 476 U.S., at 175, 106 S.Ct., at 1766 (citations omitted).
To be sure, the Court was referring to exclusion of prospective jurors from venires, not their exclusion from petit juries by means of peremptory challenges. But the particular context does not affect the analysis. A defendant's interest in obtaining the "commonsense judgment of the community" is impaired by the exclusion from his jury of a significant segment of the community; whether the exclusion is accomplished in the selection of the venire or by peremptory challenge is immaterial. Batson v. Kentucky, 476 U.S., at 86, 106 S.Ct., at 1717. A prosecutor's race-based peremptory challenge of all Afro-American venirepersons, no less than a State's exclusion of Afro-Americans from the venire, destroys even the possibility that this distinctive group will be represented on the defendant's petit jury.
Likewise, the second purpose animating the fair-cross-section requirement-preserving public confidence in the fairness of our criminal justice system-applies equally to the selection of the petit jury as to the selection of the venire. Racially motivated peremptory challenges are as destructive of the public's perception that our system of criminal justice is fair as are exclusions of certain racial groups from the venire. Id., at 87-88, 106 S.Ct., at 1718.
Finally, the goal of ensuring that no distinctive group be excluded from full participation in our criminal justice system is impaired when the prosecutor implies, through the use of racially motivated peremptory challenges, that he does not trust Afro-Americans to be fair enough or intelligent enough to serve on the case he is trying. Id., at 87, 106 S.Ct., at 1718. That the juror may eventually be seated on a jury in another case is immaterial; no one can be expected to perceive himself to be a full participant in our system of criminal justice, or in our society as a whole, when he is told by a representative of the government that, because of his race, he is too stupid or too biased to serve on a particular jury. That he might not have to suffer such an indignity in every case is not an answer to the injury inflicted by the one instance of racism he is forced to endure.
Thus, no rational distinction can be drawn in the context of our fair-cross-section jurisprudence between the claims we accepted in Taylor and Duren and the claim at issue here. The majority avoids reaching this conclusion only by the expedient of ignoring the clear import of our cases. It justifies its refusal to confront the logic underlying those cases by suggesting that "all three of those opinions [Taylor, Duren, and Lockhart ] specifically disclaimed application of their analysis to the petit jury." Ante, at 485-486. The majority's semantic games aside, these cases do not suggest that fair-cross-section principles are inapplicable to the petit jury; the cases simply recognize that those principles do not mandate a petit jury that mirrors the population of distinctive groups in the community. See Taylor, supra, 419 U.S., at 538, 95 S.Ct., at 701-02 ("[W]e impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population"); Duren, 439 U.S., at 364, n. 20, 99 S.Ct., at 668, n. 20 (the fair-cross-section "requirement does not mean 'that petit juries actually chosen must mirror the community' ") (quoting Taylor, supra, 419 U.S., at 538, 95 S.Ct., at 702); Lockhart, supra, 476 U.S., at 173, 106 S.Ct., at 1765 (Court has not required that petit juries "reflect the composition of the community at large"). Indeed, while the Lockhart Court noted that we have not in the past "invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges," ibid., it also recognized that we have applied that principle to the petit jury in holding unconstitutional petit juries of fewer than six members on the ground that smaller juries do not " 'truly represen[t] their communities,' " id., at 173, n. 14, 106 S.Ct., at 1765, n. 14 (quoting Ballew, 435 U.S., at 239, 98 S.Ct., at 1039).
A "[d]ispassionate analysis" of our cases, ante, at 485, thus makes clear that fair-cross-section principles do apply to the petit jury. Moreover, I have shown, supra, at 495-498, and the majority does not attempt to deny, that when analyzed in terms of those principles, petitioner's claim is clearly meritorious. The conclusion the majority reaches thus rests entirely on its refusal to apply those principles to this case. So far as I can discern, that refusal, in turn, rests entirely on a claim the majority presents almost as an afterthought-that acceptance of Holland's argument would be the first step down a slippery slope leading to a criminal justice system in which trial judges would be required to engineer each jury to reflect, in its few members, all of the myriad demographic groups of which American society is composed. See, e.g., ante, at 482-483, 484. Of course, as the majority is forced to admit, ante, at 484, petitioner disclaims any argument that such a regime is constitutionally compelled, or even possible. Thus, the majority is not frightened by petitioner's argument, but by the consequences that the majority fancies would flow from our acceptance of that argument.
The majority's apparent concern that applying the fair-cross-section requirement to the petit jury would, as a logical matter, require recognition of a right to a jury that mirrors the population of distinctive groups in the community is chimerical. Although the purposes of the fair-cross-section requirement cannot be served unless prosecutors are precluded from exercising racially motivated peremptory challenges of prospective jurors, see supra, at 494-498, those purposes do not support an argument for any more than a fair possibility that the petit jury will reflect the population of Afro-Americans (or of any other distinctive group). They do not support, in other words, the claim that any particular jury must comprise some specific number of members of each distinctive group. Only if prospective jurors are purposely excluded on account of their membership in a distinctive group-whether in the selection of the venire or in the prosecutor's exercise of peremptory challenges-is the defendant denied the possibility of a fair cross section of the community.
It is arguably true that the first purpose underlying the fair-cross-section requirement-the defendant's interest in obtaining the commonsense judgment of the community-would be served by a requirement that all distinctive groups in the community be represented on each petit jury. But see post, at 512, and n. 10 (STEVENS, J., dissenting) (showing that representative jury requirement might well interfere with a jury's expression of the commonsense judgment of the community). Lockhart § second and third purposes, however, do not support such a requirement. The public is unlikely to perceive that our system of criminal justice is unfair simply because a particular jury does not represent every segment of the community, especially where the jury's composition is merely the result of a spin of the jury wheel. Public confidence is undermined by the appearance that the government is trying to stack the deck against criminal defendants and to remove Afro-Americans from jury service solely because of their race. No similar inference can be drawn from the operations of chance. Similarly, the fair-cross-section requirement's goal of ensuring that each distinctive group be a full participant in our system of criminal justice is simply not impaired when a juror is seated, by the luck of the draw, on one panel instead of on another.
Finally, this Court's refusal to read the fair-cross-section requirement as mandating a petit jury representing all of the community's distinctive groups is born not of principle, but of necessity, of the recognition that no such requirement could as a practical matter be enforced. As the Court stated in Lockhart, "[t]he limited scope of the fair-cross-section requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly 'representative' petit jury." 476 U.S., at 173-174, 106 S.Ct., at 1765 (citing Batson v. Kentucky, 476 U.S., at 85-86, n. 6, 106 S.Ct., at 1717, n. 6).
As we demonstrated in deciding Batson, however, it is emphatically not impossible to prohibit prosecutors from excluding Afro-American jurors on account of their race, and the majority does not suggest that such a prohibition would be more difficult to enforce in the circumstances presented by this case. To the extent that the limitations on the reach of the fair-cross-section requirement are those of feasibility, then, the Court's result in this case is indefensible.
Rather than join issue on the real arguments presented by this case-whether the several purposes served by the fair-cross-section requirement do or do not dictate that it apply in these circumstances-the majority seeks to avoid the issue by acting as if impartiality were the only goal of our fair-cross-section cases, despite this Court's repeated and explicit statements that such is not the case. In so doing, the majority glosses over not only a few, but quite literally every single fair-cross-section case that this Court has decided.
If the majority's selective amnesia with respect to our cases in this area is surprising, its suggestion that recognition of petitioner's Sixth Amendment claim "would cripple the device of peremptory challenge," ante, at 484, can only be described as staggering. The majority suggests that (1) the peremptory challenge system is "venerable" and essential to jury impartiality, ante, at 481-482; (2) limitations on a prosecutor's power peremptorily to challenge jurors on any basis, including race, would effectively destroy that system, ante, at 483-485; and (3) the Sixth Amendment is therefore not implicated by racially motivated peremptory exclusions, ante, at 483, 487. Each step in the majority's logic is plainly fallacious.
First, as even the majority admits, ante, at 481-482, this Court has repeatedly recognized that a State need not permit peremptory challenges. See, e.g., Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 29-30, 63 L.Ed. 1154 (1919). It is difficult to reconcile that holding with the notion that peremptory challenges are somehow essential to an impartial jury, the right to which is constitutionally protected. That "[o]ne could plausibly argue" that the peremptory challenge system is constitutionally compelled, ante, at 481, is hardly an answer to the contrary statements in our cases. Plausible arguments can be made for many erroneous propositions, but that does not make them any less wrong. Moreover, Justice STEVENS clearly demonstrates that invocations of our "venerable" peremptory challenge system are insufficient to defeat Holland's claims. See post, at 517-518, and n. 15.
In support of the second step in its analysis, the majority quotes Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), for the proposition that even racially motivated peremptory challenges are essential to eliminate " 'extremes of partiality on both sides.' " Ante, at 484. What the majority neglects to mention is that Batson, in overruling Swain in part, expressly rejected the proposition for which the majority cites Swain:
"The State contends that our holding will eviscerate the fair trial values served by the peremptory challenge. . . . While we recognize, of course, that the peremptory challenge 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 administration of justice. The reality of practice, amply reflected in many state- and federal-court opinions, shows that the challenge 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 peremptory challenges, our decision . . . furthers the ends of justice." 476 U.S., at 98-99, 106 S.Ct., at 1724 (footnote omitted).
A prohibition on the use of peremptory challenges purposely to exclude members of distinctive groups on the basis of their "distinctive" attribute would leave the peremptory challenge system almost entirely untouched. The majority's exaggerated claim that "postmen, or lawyers, or clergymen" are distinctive groups within the meaning of our fair-cross-section cases, ante, at 486, will no doubt be quickly interred if ever a litigant reaches the Supreme Court claiming that such groups are "distinctive." To date, at least, this Court has found only women and certain racial minorities to have the sorts of characteristics that would make a group "distinctive" for fair-cross-section purposes. See Lockhart, supra, 476 U.S., at 175, 106 S.Ct., at 1766 (citing cases).
More fundamentally, the majority's conclusion proves far more than I think even it intends. Unless it is limited by some principle that is not apparent on its face, the Court's decision today provides that the fair-cross-section requirement is unconcerned even with a prosecutor's systematic use of peremptory challenges to exclude Afro-American prospective jurors on the ground that they, as a class, lack the intelligence or impartiality fairly to fill the juror's role. Indeed, there is no principle by which the majority could distinguish such a case from a similar policy of the state attorney general's office. Although I cannot conceive that the majority intends any such holding, the lack of a limiting principle makes me wonder on what basis I should be so sanguine.
Perhaps the most obvious answer to the majority's concerns about destruction of the peremptory challenge system is that the acceptance of Holland's argument in this case will have absolutely no effect on the peremptory challenge system. We have held that the Fourteenth Amendment prohibits prosecutors from exercising peremptory challenges to exclude Afro-American jurors on the basis of their race. Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Five Members of the Court today make clear that the race of the defendant is irrelevant to the operation of that prohibition. See supra, at 491-492 (MARSHALL, J., joined by BRENNAN and BLACKMUN, JJ., dissenting); ante, at 488-490 (KENNEDY, J., concurring); post, at 505-508 (STEVENS, J., dissenting). Whatever "damage" my interpretation of the Sixth Amendment would do to the peremptory challenge system has already been done under the Fourteenth Amendment. The practical effect of this case (in the arena with which the majority is concerned) is nil.
The majority today insulates an especially invidious form of racial discrimination in the selection of petit juries from Sixth Amendment scrutiny. To reach this result, the majority chooses to pretend that it writes on a blank slate, ignoring precedent after precedent. The majority then conjures up specters-of the dreaded "representative jury" requirement and of the destruction of our "venerable" system of peremptory challenges-as though they were real sources of concern. Our recent refusal in Batson to permit such fantastic fears to override our constitutional duty in the equal protection context makes clear, however, that these apparitions vanish on close examination.
Even had the majority marshaled the sorts of arguments that normally accompany the rejection of the principles underlying a whole line of cases, I would remain dubious. The elimination of racial discrimination in our system of criminal justice is not a constitutional goal that should lightly be set aside. Because the majority apparently disagrees,  I dissent.