William & Mary Law Review


Tania Tetlow


The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. The Court could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a “fair cross-section of the community.” By choosing the equal protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system, and instead focused on protecting potential jurors. In doing so, the Court built a fatal error into the Batson rule, a doctrine which has failed to meaningfully reform jury selection.

This Article proposes to revisit that fork in the road, and for the first time, to describe how a Sixth Amendment test would function far better in comparison to the present rule. Unlike Batson, a Sixth Amendment test would focus on the impact of jury selection on diversity instead of attempting to divine the subjective intent of lawyers. The test would function as follows: If peremptory challenges skewed the diversity of suspect classifications on the jury, then a lawyer would need to justify his strikes with reference to specific and individualized concerns about each juror’s impartiality. The judge would then balance the strength of the proffered reason for the strike against the value of the lost diversity. Although this remains a subjective test, it would prove much stronger than the Batson rule. Pragmatically, the test would measure the relevance and importance of a proffered reason rather than its sincerity, and would prove far less insulting to enforce. Ideologically, the test would focus on the more important constitutional goals of the diversity and impartiality of the jury. Instead of vainly regulating the color blindness of jury selection, a Sixth Amendment rule would focus on gathering as diverse a jury as possible while rooting out individual bias.

This would require reversal of the Court’s reasoning in Batson, a decision that would greatly improve equal protection law. Scholars divided between the worlds of constitutional and criminal law rarely place the Batson cases into an equal protection context and thus fail to recognize that those cases prove outliers in their insistence on absolute color blindness. Stranger still, each side of the Court switched positions in the jury cases on the value of diversity, on whether race can predict belief, and on whether racial stereotyping standing alone causes constitutional injury. This Article argues that the Supreme Court’s interpretation of the Sixth Amendment as valuing diversity, and indeed requiring a jury drawn from a “fair cross-section of the community,” creates a constitutional right for defendants that trumps color blindness. Jury discrimination has plagued our criminal justice system for too long to settle for the Court’s current state of denial. As mandated by the Constitution, we should focus on the quest for an impartial jury, not just a color-blind selection process.