J.E.B. v. Alabama ex rel T.B. – Oral Argument – November 02, 1993

Media for J.E.B. v. Alabama ex rel T.B.

Audio Transcription for Opinion Announcement – April 19, 1994 in J.E.B. v. Alabama ex rel T.B.

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William H. Rehnquist:

We’ll hear argument now in No. 92-1239, J.E.B. v. T.B.–

Mr. Porter.

John F. Porter, III:

Mr. Chief Justice, and may it please the Court:

A ruling which the petitioner requests in this case is a determination that gender-based peremptory jury challenges are prohibited under the heightened scrutiny of the Fourteenth Amendment such that the procedures established in Batson v. Kentucky would apply in that context also.

The facts which are relevant to the review of this case reveal that from a panel of 33 potential jurors, the State of Alabama in this cause struck 9… used 9 of its strikes to strike men from the jury and used 1 of its strikes to strike a female.

The petitioner used a peremptory strike to strike a male from the jury, resulting in an all-female panel to try this case, which resulted in a determination in favor of the state of paternity in this action.

The position of the petitioner in this case is based upon three factors.

The first is that the same principle which prohibits gender-based exclusion from the jury venire also excludes gender-based elimination or peremptory strikes in the formation of a petit jury.

Secondly, under the heightened scrutiny of the Equal Protection Clause applicable to gender discrimination, the State’s interest in limiting further restrictions on the exercise of peremptory challenges is not significant enough to overcome the invidious harm caused by gender-based peremptory challenges.

And finally, the harm to the petitioner, the excluded jurors, and society as a whole is substantially similar in the use of gender-based peremptory challenges as that we find from race-based peremptory challenges.

The fact that this panel ended up being all female simply highlights the injury to the entire community when a group, such as males or females, were eliminated from the jury panel because of group bias or unwarranted stereotyping, and when those… that stereotyping becomes the basis for the exclusion of otherwise qualified jurors from the judicial process.

William H. Rehnquist:

Well, do you think that men at large in this particular community really felt bad because male jurors had been stricken from this panel?

John F. Porter, III:

Mr. Chief Justice, I think at the time, obviously, the community as a whole was not cognizant of the problem.

The excluded jurors certainly felt excluded, because there were only 10 of them to start with.

William H. Rehnquist:

Well, supposing that the local newspaper had run a story saying that these male jurors had been excluded, do you think the community at large or the community of men would have felt very badly about it?

John F. Porter, III:

Mr. Chief Justice, I believe that there would have been a perception that this was not fair, for a panel of all one gender, whether it be female or male, to try any particular case.

I think that would have been the perception in the community, not necessarily that men would have felt bad, but the community would have felt that the system was not necessarily fair.

William H. Rehnquist:

So the community would have felt differently than men would have felt about it, is that your answer?

John F. Porter, III:

I think men… I would agree that men would have felt excluded in this particular case.

And I think in any particular case, if they were excluded simply because they were males.

Ruth Bader Ginsburg:

But men, as a class, historically have not been excluded from jury service, so why should an equal protection plea on behalf of men succeed?

John F. Porter, III:

Justice Ginsburg, men have not… I agree that men have not been excluded from jury service.

But men have become… under the Equal Protection Clause, have been a classification which have received protection from gender-based discrimination.

So our position is that the same principle which applies to gender-based discrimination in general should apply to males, and to females, in this particular context.

Ruth Bader Ginsburg:

Well, why couldn’t this be regarded as a kind of affirmative action for women to make up for all the years when Alabama totally excluded them from jury service?

John F. Porter, III:

I’m not saying that that at some… for some reason could not be.

But in this context, it is certainly not an affirmative action because it would also apply to females.

It is a… in this case men were excluded.

The same invidious harm would have occurred if women had been excluded from the jury panel.

So therefore it is not an affirmative action type of process which is allowed by the State of Alabama.

Antonin Scalia:

Mr. Porter, you speak of unwarranted stereotyping.

John F. Porter, III:

Yes, sir.

Antonin Scalia:

I take that to mean that there is nothing to the notion that you’re… if you’re a defendant in a rape case, you’re likely to be worse off with an all-female jury and you’re… if you’re a defendant in a paternity case, you’re not likely to be worse off with an all-female jury?

You don’t… is that warranted stereotyping or unwarranted stereotyping, or is it simply not true?

John F. Porter, III:

Justice Scalia, I would say that it is unwarranted because that while men and women are not the same, obviously, and do not have necessarily the same outlooks, but they do have the same ability to be unbiased, to become unbiased jurors in a particular case.

Antonin Scalia:

The same ability… they can both fight against it to the same degree, as every human being has to, but they begin from different standing points on certain issues such as those two, don’t you think?

Are you telling me that a defense counsel is unreasonable in attempting to strike women in cases of those type, in thinking that his client would be better off with a male juror?

John F. Porter, III:

Justice Scalia, my response is that, and our position is that simply because… a woman is excluded from a jury because of her gender should be unwarranted and unreasonable.

Now, if it goes further than that–

Antonin Scalia:

Now, I don’t understand.

Say it again?

John F. Porter, III:

–Our position is that the–

Antonin Scalia:

Are you saying that there’s nothing to the fact that a woman juror and a man juror, at least in certain type of cases, may have a different outlook and hence be more likely to tend towards the defense or the prosecution side?

You… are you saying there is nothing to that?

John F. Porter, III:

–Justice Scalia, I’m not saying there’s nothing to that.

However, the–

Antonin Scalia:

You’re saying there is something to it, but counsel shouldn’t be able to take that into account in their peremptories?

John F. Porter, III:

–I think that you can consider that.

I don’t think that… our position is that you should not be able to exclude a male or a female simply because of their gender.

There are studies that goes both ways, that females are–

Ruth Bader Ginsburg:

Mr. Porter, isn’t it clear that there’s something to most stereotypes, that most stereotypes are, indeed, accurate for a good part of the class?

John F. Porter, III:

–Justice Ginsburg, stereotypes are stereotypes, and they may, in fact, be applicable to a certain percentage of a particular group, such as 60 percent of the women may feal one way about a subject.

But there are 40 percent that do not feel the same way, and if you allow gender-based peremptory challenges, that 40 percent may be excluded simply because of the overall perception that women feel a certain way.

Antonin Scalia:

But that’s what peremptory challenges are all about.

It’s a playing of the odds.

It’s always a playing of the odds.

No counsel who exercises a peremptory challenge thinks that every woman or every male man or every person of whatever classification that he eliminates is going to have a certain view, but he’s playing the odds.

Isn’t that what peremptory challenges are about?

John F. Porter, III:

Peremptory challenges traditionally have been allowed and become a part of our judicial system because of counsel.

Trial counsel decides at the moment, during the trial, that a certain juror may or may not be biased in this particular case, and says… therefore peremptories are allowed.

John F. Porter, III:

It is our position that it is the preconceived notion, the preconceived stereotyping that all women feel a certain way and so therefore they should be excluded because all women feel a certain way from a jury.

David H. Souter:

Isn’t your argument that certain stereotyping, whatever its historical basis in fact may be, simply should not be recognized as tolerable under the Equal Protection Clause?

Don’t you have a principle argument as opposed to a merely fact argument?

John F. Porter, III:

Yes, sir, Justice Souter, we do.

And that is in its… probably its finest form, or the simplest form, our argument; that stereotyping for the exclusion of jurors should not be allowed.

Ruth Bader Ginsburg:

Your argument is that you want a precedent that applies to race to be extended to sex.

How far do you carry it?

What other groups?

And if… you’re saying if race, then sex.

Well, how about age, religion, national origin?

John F. Porter, III:

Justice Ginsburg, in this particular case I think the Court need only go as far as gender.

However, I think it would be rational to apply the same principles to heightened scrutiny under the Fourteenth Amendment, which would apply, then, to religion, national origin, and illegitimacy.

The examples you gave of age and maybe other classifications which have not risen–

Ruth Bader Ginsburg:

But does one inquire of each juror about the legitimacy of the juror’s birth?

John F. Porter, III:

–Practically not.

I have never seen… in 15 years of practice I’ve never seen anyone inquire of someone’s legitimacy.

However, if that were–

Ruth Bader Ginsburg:

Or, indeed, national origin?

John F. Porter, III:

–No, ma’am.

I’ve never seen anybody inquire of national origin.

However–

Ruth Bader Ginsburg:

It is perhaps the difference that in race and sexes, you don’t have to ask.

John F. Porter, III:

–Correct.

It is clear from looking at a person their race and their sex, and so therefore there is that connection, so that it is something that you can readily observe.

Anthony M. Kennedy:

Counsel, suppose an attorney were faced with a jury of all one gender, all male or all female, could the attorney then strike in order to increase diversity?

John F. Porter, III:

Justice Kennedy, in the race arena where counsel have in the past stricken for that cause, it has not been allowed.

It has been determined that that is a race-based peremptory challenge and has not been allowed.

I would apply the same principle in this instance, so that in order… that use of peremptory challenges to obtain a better mix, I suppose, of a jury should not be allowed in that case.

Anthony M. Kennedy:

Mr. Porter–

–So the stereotype applies to the challenge but not to the evaluation of the jury as it’s composed?

John F. Porter, III:

The… I would agree that the… the objection would be to the individual challenge of the juror.

David H. Souter:

But your… isn’t it your assumption, in answering Justice Kennedy’s question, that there is no reason to infer that there was stereotyping or exclusion based on stereotyping in composing the panel from which his all-male jury or all-female jury was picked?

Isn’t that your assumption?

John F. Porter, III:

Yes, sir.

That would be a part of it, before you would ever get to–

David H. Souter:

Which is, in fact, I presume, an unrealistic assumption.

John F. Porter, III:

–Yes, sir.

David H. Souter:

Or would be in those cases.

John F. Porter, III:

It would be, yes, sir.

But before you would get to that point, you would have the opportunity to make the challenge.

John Paul Stevens:

Mr. Porter, the male and female classes are roughly the same size, I guess.

John F. Porter, III:

Yes.

John Paul Stevens:

That’s not always true in the racial or other contexts.

Why isn’t it an adequate protection if one side thinks the male is a more favorable juror and the other thinks the female, give them each the same number of peremptories and they’ll cancel each other out?

John F. Porter, III:

Justice Stevens, as to that panel, that… or as to the group of the jurors and the ability of counsel to obtain the correct mix, that may be the right answer, the way to resolve it.

But as to the individual juror who is excluded, or to the community as a whole, the allowance of gender-based peremptories damages, as the Court found in–

John Paul Stevens:

Yeah, but what’s the damage if one side thinks they don’t like men and the other side thinks they don’t like women?

Doesn’t that cancel it out?

I mean neither group is being treated less favorably than the other group under that hypothesis.

John F. Porter, III:

–Justice Stevens, the entire group, I would agree, would not be–

John Paul Stevens:

Both men and women would be insulted because they’re not of the opposite sex.

John F. Porter, III:

–Right.

And so it would be the insulting of that particular juror, or the exclusion, which would be objectionable.

Ruth Bader Ginsburg:

Although you have standing because of the client that you represent, which you’re asserting, then, is the equal protection right of the juror, not the party.

John F. Porter, III:

In part.

I think under Batson and the cases that followed, certainly my client would have the standing to raise the objection of the excluded jurors.

I think that would be correct.

Ruth Bader Ginsburg:

Well, isn’t that the heart of your argument?

John F. Porter, III:

It is.

I think that’s the overall, the more broad argument.

John F. Porter, III:

And the more important, probably, harm is the harm to the community and to society and to the excluded jurors who basically do not have the opportunity to raise the objection themselves.

Antonin Scalia:

Could I ask, Mr. Porter, what… is that the total list of categories that you want this applied to?

What is it, now, sex, religion, what else?

John F. Porter, III:

National origin and–

Antonin Scalia:

National origin.

John F. Porter, III:

–Yes, sir.

Antonin Scalia:

Sexual preference?

John F. Porter, III:

No, sir.

Antonin Scalia:

Not… no, not that.

Why not?

John F. Porter, III:

Because sexual preference, like age and disability, have not been raised by this Court to the heightened level of scrutiny under the Fourteenth Amendment.

Antonin Scalia:

Oh.

But we could do that, though.

John F. Porter, III:

If the Court chose to at some point in time, then you could–

Antonin Scalia:

Sure.

[Laughter]

John F. Porter, III:

–You certainly could.

Ruth Bader Ginsburg:

But Mr. Porter, are you going to, in your system where we have these groups, allow the preliminary questioning of the potential jurors.

In the colloquy that we just had, you observed that there’s something about race and sex that’s not like any other class.

You don’t have to ask.

John F. Porter, III:

Correct.

Ruth Bader Ginsburg:

But in the suggestions that you’re now making, the notion that religion is not written on someone’s forehead so we would first have to quiz the potential jurors about that.

John F. Porter, III:

Yes, ma’am.

Ruth Bader Ginsburg:

Same thing with national origin.

John F. Porter, III:

Yes, ma’am.

Ruth Bader Ginsburg:

Does that… does not… isn’t that just a disturbing thought?

John F. Porter, III:

It is a somewhat invasion of their privacy.

But trial counsel every day inquires of jurors on personal matters.

It is important in some cases to make those inquiries.

Go back, as far back as Lewis, the U.S. v. Lewis.

John F. Porter, III:

The Court there explained how important the use of the voir dire was.

Antonin Scalia:

So if you’re the defendant in a drunken driving case, you can strike jurors for… I guess, because you don’t like the color of their hair, but you could not strike a juror because he’s a Methodist and therefore a teetotaler.

You would have to accept, if it turned out that way, a jury of 12 Methodists in a drunken driving case, right?

John F. Porter, III:

No, sir.

Antonin Scalia:

You would not.

John F. Porter, III:

Not necessarily.

My point is that you could not strike him simply because he was a Methodist.

If he was a–

Antonin Scalia:

Well, that’s why I’m striking him.

John F. Porter, III:

–I understand.

Antonin Scalia:

I think this fellow probably has very strong views against drinking, and is more likely to come down hard on someone who’s accused of drunken driving than some other juror.

That’s precisely why I want to strike him.

John F. Porter, III:

It is–

Antonin Scalia:

And you’re saying that’s no good.

John F. Porter, III:

–It is the probably that gives me a problem with that.

Antonin Scalia:

But all peremptories are based on probably.

John F. Porter, III:

Our position would be that if that Methodist professed to be a teetotaler, and so therefore had an individual conviction against the consumption of alcohol, that would be a proper peremptory strike.

Antonin Scalia:

But a teetotaler is just a person who doesn’t himself drink alcohol.

John F. Porter, III:

Correct.

Antonin Scalia:

He doesn’t necessarily believe that it’s morally wrong for himself and others to do it.

John F. Porter, III:

If–

Antonin Scalia:

But, anyway, you just would not let him… not let him strike methodists, right?

But what could he strike, people with blonde hair, postmen?

John F. Porter, III:

–If a postman had… there would be nothing wrong with striking postmen as a class.

Antonin Scalia:

He’ll be happy to hear that.

John F. Porter, III:

Yes, sir.

[Laughter]

Harry A. Blackmun:

Mr. Porter, as a litigator, do you believe in the peremptory challenge system?

John F. Porter, III:

Justice Blackmun, I believe, as a litigator, that the peremptory challenge system certainly has a place within our jury selection process.

It is… but it must be bound by certain constitutional provisions, and we think one of those is the Fourteenth Amendment.

Harry A. Blackmun:

Do you think Batson was wrong?

John F. Porter, III:

No, sir, I do not.

I think it… it achieved the purpose for which it was rendered.

William H. Rehnquist:

Well, Mr. Porter, since Batson, which I guess was 7 years ago.

John F. Porter, III:

Yes, sir.

William H. Rehnquist:

We’ve seen a number of cases here in which Batson issues have been raised because of the peremptories directed at minorities, of blacks or hispanics.

Under… if your view prevails, a person making any sort of a peremptory challenge in a proceeding is just really running a great risk.

Because the peremptory challenge is going to be even to a man or to a woman, and therefore arguable on appeal that this… this violated the Equal Protection Clause.

John F. Porter, III:

Mr. Chief Justice, in any situation the first step the trial counsel is going to have to show is making out a prima facie case that the gender has been used intentionally to strike.

William H. Rehnquist:

But if you’re talking… I mean, if you’re talking about minority members of a jury panel.

John F. Porter, III:

Yes, sir.

William H. Rehnquist:

I should think it would be much easier to make out a case like that because there are not apt to be many of them on the panel.

Whereas in the case of women or men members, they’re probably going to be 50/50.

John F. Porter, III:

By and large, there will be.

However, there are many counties in Alabama, and probably in other counties across the Nation, in which the racial mix is 50/50, or 60/40, very close.

So those… the Batson still applies in those cases.

Ruth Bader Ginsburg:

Even if we accepted your argument that sex should be treated like race, wouldn’t it be appropriate in this case to follow another precedent that was set 27 years in Alabama, and that is not to make this… this dramatic change retroactive.

Do you remember the old case of White against Crook when the Alabama Legislature was given till the next session to put women on juries?

John F. Porter, III:

I think the problem with that approach would be that the harm in this case… in this particular case, the harm, the men who were eliminated have already been damaged.

And therefore other men with cases–

Ruth Bader Ginsburg:

Well, that was certainly so in the days when the Alabama laws was… that the jury role would include the names of all male citizens of the county.

John F. Porter, III:

–Yes, ma’am.

Ruth Bader Ginsburg:

And yet that was made prospective only.

The relief was made prospective only.

Why isn’t that appropriate here?

John F. Porter, III:

Because the damage has occurred already and it needs to be remedied.

And it will continue to cause damage until it is remedied.

William H. Rehnquist:

Thank you, Mr. Porter.

John F. Porter, III:

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Mr. Dreeben, we’ll hear from you.

Michael R. Dreeben:

Thank you, Mr. Chief Justice, and may it please the Court:

For nearly 2 decades the Court has held that Government action taken on the basis of gender is subject to heightened constitutional scrutiny.

In light of that heightened scrutiny, the discriminatory use of peremptory challenges to remove a juror on the basis of gender violates the Constitution.

The line of cases beginning with this Court’s decision in Batson has made it clear that the use of peremptory challenges for racially invidious purposes is unconstitutional.

Such challenges harm not only the parties, but also the excluded jurors and the community as a whole.

The same is true with respect to gender-based strikes.

The individual juror removed on the basis of gender is frequently the victim of an outmoded stereotype.

Jury manuals, for example, have instructed litigants to remove women because of a belief that they are too sympathetic or are governed by emotion, and the case law reflects that this has happened.

Antonin Scalia:

And you know better, so you want to protect defense counsel from himself, right?

Michael R. Dreeben:

No.

I believe, Justice Scalia, that–

Antonin Scalia:

It seems to me he has his client’s interest more to heart than the Government does.

And if he thinks that what you call unwarranted stereotypes are, indeed, warranted, why not let him take the chance?

Michael R. Dreeben:

–Well, the same argument could be made–

Antonin Scalia:

And if it’s unwarranted, it’ll be its own punishment.

Michael R. Dreeben:

–I think the same argument could be made about racially based stereotypes or ethnically based stereotypes, or stereotypes based on a person’s religion and nothing more.

Now, the reason–

Antonin Scalia:

There’s a Thirteenth Amendment and a Fourteenth Amendment that can account for our view of racially based stereotypes.

We’re not allowed to stereotype for that.

There’s no such… no such amendment changing historical practices with respect to strikes on the basis of sex or on the basis of a lot of other characteristics.

Michael R. Dreeben:

–Well, this Court has determined that the Equal Protection Clause not only applies to sex-based classifications, but that they are entitled to heightened scrutiny because there has been a history of discrimination and a history that reflects the misuse of gender-based stereotypes as a basis for Government action.

And it’s that Court’s determination in the general mainstream of equal protection law that we rely on in urging the extension of Batson from race-based challenges to gender-based challenges.

Sandra Day O’Connor:

Well, Mr. Dreeben, if you… if you prevail here, if the petitioner prevails, and not only gender-based peremptory strikes but those based on ethnic origin, religion and so forth, are similarly barred, what’s left of the peremptory challenge system, if anything?

Michael R. Dreeben:

I think what’s left of it, Justice O’Connor–

Sandra Day O’Connor:

Besides the postmen.

[Laughter]

Michael R. Dreeben:

–It is the important class of postmen, and in addition classes that are based similarly on occupation, and all classes that really have not been elevated–

Sandra Day O’Connor:

Well–

Michael R. Dreeben:

–To heightened review.

Sandra Day O’Connor:

–It strikes me that before you even get to that, you’re going to be accused… as a lawyer, a trial lawyer exercising peremptories which, of necessity, have to be exercised against either women or men… of having made a sex-based peremptory strike.

Sandra Day O’Connor:

How do you think, as a practical matter, the trial judge should deal with it?

Suppose the lawyer strikes… has five peremptory strikes and uses three of them to strike women.

Now, is that open to challenge and is the trial judge going to have to resolve that?

Michael R. Dreeben:

The trial judge will have the discretion to determine whether there’s a prima facie case.

The lower courts have held, in the context of Batson, that simply an argument from numbers alone does not necessarily establish a prime facie case.

There may be other factors that give rise–

Sandra Day O’Connor:

But it might.

Michael R. Dreeben:

–It might.

And if it does, the litigant who has exercised the strikes will be called upon to give a gender-neutral explanation for the strikes, just as he or she has to give a race-neutral explanation.

And this procedure, though it may have seemed cumbersome at the time that Batson was adopted to those who opposed the rule, has proved to be perfectly workable in the Federal system in terms of race.

And in those jurisdictions–

Sandra Day O’Connor:

Well, but, of course, what do you have there?

You have a much smaller pool of minority jurors against which this can operate, so it strikes me that it’s much easier to establish some kind of a misuse.

But when you have equal numbers of men and women, it seems that it might be, as a practical matter, very difficult to administer this for the trial judge.

Michael R. Dreeben:

–There may be some cases that call for difficult determinations at the margins.

I don’t think that, across the board, it has proven difficult.

Ruth Bader Ginsburg:

Mr. Dreeben, are we talking entirely hypothetically?

Is it not so that Batson is the rule with respect to sex in some Federal jurisdictions?

Michael R. Dreeben:

Yes, Justice Ginsburg.

The Ninth Circuit has adopted a gender-based Batson rule, as have the States of New York and California and Massachusetts, and, as well, six other States.

And those are large State systems, as well as the Ninth Circuit, which is a major Federal system, and it has not proven to be administratively burdensome or difficult to implement.

Antonin Scalia:

Well, but–

–Mr. Dreeben–

–Unless you extend it to the other logical categories which it ought to be extend to, if it extends to… if it extends to sex.

I guess there’s nothing to worry about if you can find a postman who is neither male, female, has no religion, and no ethnic background.

Then you would not have to worry about a challenge; you could go ahead and strike.

Michael R. Dreeben:

So long as the litigant relies on a basis for the challenge which is not in a category that’s protected by heightened scrutiny, and in which we are particularly concerned about the invidious use of stereotypes, in which the jurors rights would be violated were he subject to exclusion.

Harry A. Blackmun:

Is it just the jurors’ rights?

Is the integrity of the fact-finding process, the accuracy of the jury’s determination enhanced or retarded by your position, in your view?

Michael R. Dreeben:

I’m not sure that the actual accuracy of the fact-finding process is necessarily affected one way or the other, so long as impartial jurors are actually seated.

Michael R. Dreeben:

What is affected is the community’s perception and confidence in the integrity of the process.

Harry A. Blackmun:

Well, do you think the stereotypes may, then, enhance the accuracy of the jury?

Michael R. Dreeben:

No, I don’t think that the stereotypes would in any way enhance it.

I think that once you have reduced the–

Harry A. Blackmun:

But you wouldn’t go so far as to say they retard it?

Michael R. Dreeben:

–Not necessarily.

But I do think that the community itself loses confidence in the integrity of the process when biased selection procedures have been used to empanel the factfinder.

And I don’t believe that that’s different depending on whether the bias that’s used in the selection process is racial bias, ethnic bias, or gender bias.

Harry A. Blackmun:

Well, this goes back to Justice Souter’s question to the previous counsel as to what the real evil is here.

If stereotypes have some value for the trial practitioner in selecting the jury, then maybe we should draw the line here and allow those peremptory challenges.

Michael R. Dreeben:

I think the line should be drawn, Justice Kennedy, where this Court has drawn it in other equal protection contexts where stereotyping was used to justify laws.

Where the stereotype is one based on gender such as to invoke heightened constitutional scrutiny because of suspicion about historical misuse, it’s appropriate to ban that use of stereotyping from the courtroom.

Where there has been much less concern about the invidious use of stereotyping or grouped-based assumptions, such as strikes based on occupation, residence, age, or a variety of other factors that this Court has been quite deferential to–

Harry A. Blackmun:

But isn’t the purpose of abolishing the stereotype from the courtroom in order to confirm the duty of the individual juror to set aside his or her own preconceptions?

Michael R. Dreeben:

–That is certainly part of it, but there is a balancing going on here, and the peremptory challenge system has been thought to serve other purposes in the jury selection process.

And the States may have some leeway to make determinations that group-based exclusions are permissible where there is no particular reason to be suspicious about the nature of those exclusions.

But in this context, where gender-based stereotyping has been subject to heightened review because of suspicion about misuse, where the community is injured and where the excluded juror also would find it to be insulting to be removed solely on the basis of a stereotyped assumption, then in those situations the Equal Protection Clause does mandate the eradication of this form of discrimination.

The ruling in this case, Justice Ginsburg, should be applied retroactively, just as this Court applied the rulings in Batson and the successor Batson cases retroactively.

There is no reason to depart from the determination made in that line of cases that the ruling should apply both to the parties in the case–

John Paul Stevens:

But by retroactive you mean the cases pending?

Michael R. Dreeben:

–to cases pending, that’s precisely correct, Justice Stevens.

I was going to add that point.

We do not believe, in answer to Justice Rehnquist… Chief Justice Rehnquist’s question, that the Court should make an exception to a gender-based rule that would permit strikes when a party is attempting to even up or balance the jury.

First of all, we think that that rule would be susceptible to a great deal of misuse.

It would become extremely–

Thank you.

William H. Rehnquist:

Thank you, Mr. Dreeben.

Ms. Brasfield, we’ll hear from you.

Lois N. Brasfield:

Mr. Chief Justice, and may it please the Court:

The solution that the defendant… the petitioner has offered in this case I think causes a great many more problems than it actually fixes.

Lois N. Brasfield:

In this particular case there… it was a very unusual venire.

And under the circumstances, I do not think it can be said that either the defendant, the individual jurors, or the community at large was harmed.

Usually, you will have a fairly well divided venire, and in this particular case there were 23 women and 10 men for whom… that had to be brought down to a 12-person jury.

The defendant had 11 strikes, the State had 10.

The jury–

William H. Rehnquist:

That’s what Alabama allows in a criminal case, or is this a civil case?

Lois N. Brasfield:

–This is a civil case completely, Your Honor.

William H. Rehnquist:

And you’re allowed 10 or 11 strikes in a civil case?

Lois N. Brasfield:

They use a struck jury method which is 24… a minimum of 24 are required from which to start the striking down to the number of jurors that are going to be needed.

William H. Rehnquist:

Well, if you start with 24 and one side has 10 and the other side has 11–

Lois N. Brasfield:

No, no, no.

You have however many it takes to reduce the venire to the number of jurors who are actually needed for the trial.

That will be–

William H. Rehnquist:

–And would that be 12 in this case?

Lois N. Brasfield:

–In this case it was 12.

There were no alternates needed for this case.

So it just happened that there were a large number of strikes to be used in this case.

The defendant used his first strike against a woman; the State used its first strike against a man.

This–

William H. Rehnquist:

Well, let me inquire once more into the mechanics.

The venire was 33 people?

Lois N. Brasfield:

–Yes, sir.

And–

William H. Rehnquist:

And you… where did the number 24 come from?

Lois N. Brasfield:

–The statute requires that a minimum of 24 be available.

Usually more than that are called because there… there’s never any way of knowing how many will be struck for cause prior to the striking of the actual jury.

William H. Rehnquist:

Thank you.

Lois N. Brasfield:

The State used its fourth strike to strike a woman, but the defendant continued to use his strikes… I mean to strike a man, but the defendant continued to use her to strike women.

The actual numbers struck were 11 women and 10 men.

Those jurors who were struck, those 11 women and 10 men, did not leave the courtroom thinking that they had been excluded from the jury system or that they could never sit on a jury.

Lois N. Brasfield:

Both men and women regularly sit on juries throughout this country.

And part of that is the very fact that men and women are not minorities; they are both fairly equal in numbers.

So that if your panel is drawn randomly, usually you will have a jury panel that is fairly equal in numbers.

If there is some reason why the litigants feel like it’s to their advantage to strike one gender rather than the other one, then just in this case the other juror… other litigant is probably going to be striking the other gender.

This was a rare but totally random drawing that produced an unbalanced venire.

But in most cases this would not happen.

In… and the fact is that they could have just as well been two men to every woman.

It just happened that it was two women to every man in this case.

In addition–

Ruth Bader Ginsburg:

Are you suggesting that there was not proof that the elimination was, indeed, gender based?

Lois N. Brasfield:

–I’m not suggesting that there would not have been a prima facie case which would have caused a challenge if Batson had been applied to this case.

Ruth Bader Ginsburg:

That’s… I thought that that was a given for us at this level.

Lois N. Brasfield:

Yes.

I think at this point the fact that there would be a prima facie case if either side had decided to challenge.

The State had as much of a challenge against the defendant for having stricken 10 women with his 11 strikes.

Ruth Bader Ginsburg:

Ms. Brasle… Brasfield, my question to you… we’ve been talking about stereotyping and how they are often true for most people in the class, but it was my impression that the evil or mischief that has underlied every decision of this Court in the sex discrimination/equal protection field is just that stereotyping, the notion that women are this way and men are that way.

Is that not so?

Lois N. Brasfield:

In my position, I think that that is correct.

That is what Batson was based on.

But Batson has been held to be uniquely a result of the racial situation that was existing in this country, where blacks were still being kept off of juries in case after case after case, and the Swain test that was in place was unworkable to prove that this was happening.

It’s our position that it’s–

Sandra Day O’Connor:

How long were women kept off juries in Alabama?

Lois N. Brasfield:

–Until 1966, they were.

Under the statute, a jury was made up of all males.

But at this point, they are not being kept off of juries.

The venire lists are drawn from the driver’s license registration lists, and are drawn at random.

Anthony M. Kennedy:

But you’re arguing that there’s nothing wrong with a counsel that’s continuing to exclude them solely on the basis of their gender?

Lois N. Brasfield:

I’m not saying that that’s right or wrong.

I’m saying–

Anthony M. Kennedy:

No.

Anthony M. Kennedy:

Yes, you are.

You’re saying it’s perfectly constitutional.

Lois N. Brasfield:

–I’m saying… I’m not… well, that’s what I mean.

I think it is constitutional.

I do not think that it is necessarily to either party’s advantage.

I think they may very well be wrong, just as they may be wrong in thinking that the postman is going to be less likely to decide on their case.

But–

Harry A. Blackmun:

Are you asking that Batson be overruled?

Lois N. Brasfield:

–Not at all, sir.

I think there was a very–

Harry A. Blackmun:

You accept… you accept Batson?

Lois N. Brasfield:

–Yes.

But I think that Batson is unique to race and the situation that was continuing to exist in that blacks were being kept out of the system, which is not happening to men in particular in this case, or women.

Sandra Day O’Connor:

Well, Ms. Brasfield, I guess the Court has painted itself into a bit of a corner on this matter, because it has held that the Batson rule applies because of the right of the juror.

That it is the juror’s own rights that are at stake here, and that the attorney for the litigant can raise that challenge in the case.

Now, if that’s so, then how… how would you not apply that rule to a gender-based strike?

Lois N. Brasfield:

I don’t think–

Sandra Day O’Connor:

I think what’s really at stake is the right of the juror.

If the Court’s theory had been different, your argument might be easier.

Lois N. Brasfield:

–Well–

Sandra Day O’Connor:

But how can you make a reasonable argument in light of the Court’s jurisprudence here?

Lois N. Brasfield:

–Well, I think that no particular juror has a right to sit on any particular case.

And in this situation there were 12 women who sat on the jury, but there were 11 women who didn’t.

And they were struck… as I said, there would have been a prima facie against that at the time too.

Sandra Day O’Connor:

Yes, but a particular juror has a right to have the State not act to exclude them on the basis of their gender, right?

Lois N. Brasfield:

That has not been said by this Court up until now.

All of the applications of Batson, at this point, have been to race.

Sandra Day O’Connor:

Yes.

But based on the right of the juror?

Lois N. Brasfield:

Then I think you would have to come also to the right of the postman and the right of anybody else not to be struck.

Lois N. Brasfield:

And if we are going to reach this, I think this is one of the problems that extending Batson beyond the area of race would cause, and that–

Anthony M. Kennedy:

It’s not a right not to be a struck.

It’s a right not to be stricken according to your race or, in this case the argument is gender.

No one’s contending that you have a right not be subjected to a challenge.

Lois N. Brasfield:

–But is it–

Anthony M. Kennedy:

It’s the reason for the challenge that’s the point of… the point of the inquiry here.

Lois N. Brasfield:

–But I think that the same argument, if that is going to be used to extend Batson, would also apply to any other stereotypical reason for–

Ruth Bader Ginsburg:

Ms. Brasfield, isn’t it true that there’s no other group in the history of this country that was excluded from jury service as long as women?

Not even the racial classifications lasted into… in fact, it was 1967 in Alabama; the decision was ’66, but the change was ’67,–

Lois N. Brasfield:

–Justice Ginsburg, it is true that only blacks and women have, been under the law, denied the right, and that actually black men were allowed to sit on juries prior to women in Alabama.

Ruth Bader Ginsburg:

–So wouldn’t we be putting the peremptory challenge back where it was in the days when it was never exercised on the basis of either race or sex because there weren’t any women or any minorities in the pool to begin with?

So all this talk about how you’re shrinking the peremptories, you’re just putting it back the way it was in the bad old days.

Lois N. Brasfield:

But they are there, and they are there in fairly equal numbers.

And since we’re in the position of applying it to both men and women, there is always the chance that… and particularly where you have a large black population too, the problem is extended and made more necessary, that you have a reason for every strike in the event that you inadvertently fall into a situation that makes you subject to a challenge.

Antonin Scalia:

Ms. Brasfield, I suppose that every citizen has a right not only not to be… if we follow this logic, not only not to be stricken for that citizen’s race, religion, sex, and whatever, but also has a right not to be stricken for any irrational reason, I suppose, if that logic is correct?

Wouldn’t that be so?

Lois N. Brasfield:

I think that–

Antonin Scalia:

So I guess that every erroneous basis for exercising peremptories would be unconstitutional.

Like if… in fact, postmen are, surprisingly, no different from everybody else.

Striking a postman because he’s a postman would be unconstitutional, right?

Lois N. Brasfield:

–I think that that argument could be extended in that direction, yes.

Antonin Scalia:

Or just striking a juror because you don’t like the look in his eye.

That would be unconstitutional.

Lois N. Brasfield:

I think that we would certainly be in a position where we couldn’t use… striking a jury because we don’t like the look in his eye as our nonracial, non-gender-based reason–

William H. Rehnquist:

Well, you could–

Lois N. Brasfield:

–Because it would be considered a sham.

William H. Rehnquist:

–Well, you could draw the line short of that, surely, because the Court has held the Equal Protection Clause requires if not strict scrutiny, at least heightened scrutiny, intermediate scrutiny based on differences between men and women.

And it has never said the same about people who had a certain look in their eye.

[Laughter]

Lois N. Brasfield:

That’s correct, Your Honor.

Lois N. Brasfield:

But–

Ruth Bader Ginsburg:

Or about letter carriers.

Lois N. Brasfield:

–That is also correct.

And while in Alabama if you were having a Batson challenge and you were trying to justify your strike for a nonracial reason, or a non-gender-based reason, I think that saying, Your Honor, I didn’t like the look in his eye would not pass muster.

I think that you would have to show a better reason that than, or it would be considered a sham.

You could say that about every person you had struck.

So I think that you would be required to extend your voir dire and spend much more time.

Now, I think that the judicial system would be loaded up with time spent questioning jurors to be sure that you’d be able to give a… an acceptable reason if you were called upon to do so.

I think–

Ruth Bader Ginsburg:

Ms. Brasfield, is the question I asked earlier to Mr. Dreeben, I think… Batson is in effect with respect to sex in the Ninth Circuit and in some States.

Is there any evidence of… you said you think… do we… is there any evidence that there has, in fact, been these intractable problems?

Lois N. Brasfield:

–I am not familiar with whether those problems have been found.

The… Mr. Dreeben has said that there is no evidence that there are problems.

I’m not… also not sure that there are not… there are any studies showing there are not problems.

But, now, in Alabama, although Alabama has heartily endorsed… all of its courts have endorsed Batson as it applies to race, and in each of its extensions to civil litigation and against defendants as well as plaintiffs.

But at the same time, there were over 40 appellate opinions issued by the Alabama Court of Criminal Appeals last year that had to address Batson issues that were raised on appeal.

William H. Rehnquist:

Well, and I also think that the Ninth Circuit adopted its rule, as I understand it, only in 1992, last year, so it might be too soon to decide whether there’ve been any problems or not.

Lois N. Brasfield:

Chief Justice Rehnquist, I agree with that.

I also think that if Batson were extended to gender, there is a clear indication that it would cause problems in Alabama and in many States.

I can’t believe that Alabama is unique in struggling with the practical application of Batson even as it applies to race, as… and I think that having it to apply to gender also would increase the problems tremendously.

In paternity cases, for instance, which is what I see regularly, Alabama adjudicated 8,000 paternities last year.

Most of these trials take no more than half a day, even when you’re selecting a jury.

They’re quickly handled.

They have… usually they have some expert testimony and some HLA or DNA tests, and they are fairly rapidly decided.

You can… it can be envisioned that you’d spend twice as long on the voir dire and jury selection as you would actually trying the cases.

In addition, I think there would be a lot greater chance for an allegation of error in those cases, so that the appeals system would be overloaded as well with Batson issues.

David H. Souter:

Well, may I ask you, in the trial of those cases is the fact pattern that we’ve seen in this case characteristic of most of them?

Lois N. Brasfield:

The fact pattern in this case–

David H. Souter:

I mean, defense counsel will strike all of one sex and the State’s counsel strike all of the other sex?

Lois N. Brasfield:

–This is the first case that I have seen where that type of striking has been apparent.

David H. Souter:

So this isn’t necessarily a problem here for–

Lois N. Brasfield:

So this is not necessarily.

It is certainly not something that has been advised by the State.

It was apparently this particular litigator’s… the two litigators’ choices.

David H. Souter:

–But that sort of undercuts the reason for your fear that if we… if we decide in the petitioner’s favor here, that your prosecution of these cases is going to be made unmanageable?

Lois N. Brasfield:

The only thing that would make it unmanageable is that the… if you reduced either side.

It’s not a question of whether there is all of one panel or all of another, or if all of the strikes are used, because this Court and the State’s court… State courts have held that if even one strike appears to be based on gender or can show a prima facie case–

David H. Souter:

If it appears to be.

But, I mean, isn’t that the… doesn’t that raise a question about the nature of the prima facie case.

As so members… so many members of the Court have pointed out, you can’t strike anybody without striking someone of one gender or another, and therefore you’ve got to have something more than that to make a prima facie case.

You had a prima facie case, we are all agreed, I guess, here, but it doesn’t follow that one strike of one person is going to appear prima facie to be motivated by gender, does it?

Lois N. Brasfield:

–No, not that one strike of one person would.

But if you have six or eight strikes, or five or nine strikes–

David H. Souter:

And they were all of the same gender.

Lois N. Brasfield:

–They are one–

David H. Souter:

Then you’ve got one.

Lois N. Brasfield:

–You know, at what point would you decide you’ve crossed the line?

If you’re using, say, two more strike against one gender than the other in Alabama, the State courts have held that if you reduce a racial ratio in the venire significantly when reaching the petit jury, that that, in itself, can be a prima facie case.

So that you’re really in a position where you might have to have a proportional jury in order to avoid a Batson challenge, or you would have to be prepared to give a reason for each one of your strikes if you didn’t have a proportional jury.

John Paul Stevens:

May I ask you a question about your procedure in Alabama, this alternate striking?

Is it correct that… I gather a lot of these are peremptory strikes, but is it also… and it must be true also that you can have strikes for cause as you go down the line, and not have those counted against you, is that right?

Lois N. Brasfield:

Yes, Justice Stevens.

In this case there were 36 on the original panel; three of them were struck for cause by the court.

John Paul Stevens:

I see.

And the person just doesn’t lose… and then he gets another strike if the judge agrees with him on the strike for cause.

Lois N. Brasfield:

That’s right.

That doesn’t enter into it.

The actual peremptory strikes begin after the removal of the people who are struck for cause.

John Paul Stevens:

I see.

As… would you describe again what test in Batson cases the Alabama courts are now using?

John Paul Stevens:

Because, I mean, it seems to me that one of the consequences of adopting the rule that the petitioners want here, would be to compel Alabama to be less rigorous in its application of Batson.

I’m not sure that we have required Alabama to apply such a rigorous rule.

What is the rule they now use?

Lois N. Brasfield:

The proportion of minorities to the majority race on the venire is considered as one of the elements.

It’s not the only one; in individual cases they might consider other matters.

But there have been cases in which the very fact that either more strikes were used against the minority than against the majority or that the result was that… for instance, if you had eight strikes and you used two of them against blacks, but there were only two blacks in the panel, and so… or three blacks in the panel… so that you reduced the proportion considerably, that would be one of the things they would look at in determining a prima facie case.

That, in itself, could be considered a prima facie case.

Antonin Scalia:

And one could hardly afford to apply that rigorous a rule to another category of strikes, or at least another major one as sizeable as sex discrimination.

Lois N. Brasfield:

I think that that is true.

I think that there would have to be some other way to handle it, and I am not prepared to say what that could be as far as… as applying Batson, how that could be done.

Now, there are other situations that have been done.

One thing I want to mention is that as well as the community at large not being harmed, because men and women both sit on the juries, and because these particular men and women did not feel excluded from the system because, they probably sat on another jury during the same term of court, and because they were actually struck in fairly equal numbers, the fact is that under the facts of this case and the overwhelming evidence that was there, it is very hard to see how the defendant could be harmed.

Because I don’t think he was found to be the father of this child because of a biased all-female jury; I think he was found to be the father of this child because of the overwhelming evidence that he is.

Ruth Bader Ginsburg:

Justice O’Connor explained that the… one of the problems from your point of view is that the right is being asserted by the defendant, but the constitutional protection is afforded to the potential juror.

So every time you’re talking about, well, the defendant is or is not likely to be affected, it’s the… it’s the harm to the potential juror as a result of stereotyping because of one’s birth status, that’s the constitutional injury that’s at stake here.

Lois N. Brasfield:

Yes, Your Honor.

I understand what you’re saying, I think, but I feel that in this particular case, in the first place they are struck by number and the jurors don’t know what their number is.

If one side is striking men and the other side is striking women and then are reduced in equal numbers, then I do not see how they can be harmed by that knowledge.

I think that part of our problem in Alabama may be contributed to by the fact that we use the struck jury method, which gives us this basically unlimited number of strikes, limited only by the number that’s on the panel to begin with.

The State of Alabama Bar Association has already recognized that Alabama is having problems and is having too many appeals on this issue, and they have appointed a panel of… a committee of judges and lawyers to examine Alabama’s jury system and see if going to a different or a revised peremptory strike method, such as is used in the Federal courts or some other court, might alleviate a lot of the problem.

I think that there are other States who don’t seem to be having particular problems with Batson or with gender strikes, and have been able to work this out.

Ruth Bader Ginsburg:

So if there is a constitutional injury and it’s a problem of the mechanics of the State system that could be fixed, as seems to be your–

Lois N. Brasfield:

Then I think Alabama deserves an opportunity to try to fix that, if that is what is happening.

Ruth Bader Ginsburg:

–Well, certainly, there would be an impetus to fix it if the Court said that Batson applies to gender.

[Laughter]

Lois N. Brasfield:

I think there would be an impetus to go to proportional juries or do away with the peremptory strike.

I think it could come… become so complicated that–

Ruth Bader Ginsburg:

I’m sorry, I wasn’t… perhaps I didn’t understand you correctly.

You said in places that have… don’t have this struck jury system, like the Federal courts, they weren’t having the problems with implementing Batson, either for sex or for race, the way Alabama is because it’s got this unusual struck juror system.

Lois N. Brasfield:

–Uh–

Ruth Bader Ginsburg:

So that if you… if you fixed the way your… you strike jurors, then you might not have any difficulty administering Batson for race or for sex.

Lois N. Brasfield:

–But I–

Ruth Bader Ginsburg:

I thought that’s what you had said.

Lois N. Brasfield:

–Yes, that is what I said, but I do think that because it is already the… the problem of gender strikes in Alabama is not a pervasive problem, that the State should have the opportunity to try to correct it on its own.

And Mr. Dreeben seems to think that there is a problem in the Federal system, also.

If that is true, I think that this Court’s supervisory powers could well allow this Court to cure that system without reaching the States in your level.

I think that applying Batson to gender in the situation that Alabama has at this point would cause great slowdown of the cases moving through the courts, and would raise more problems than it could possibly cure.

If there are no further questions.

William H. Rehnquist:

Thank you, Ms. Brasfield.

The case is submitted.