March 20, 2019
CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI
Petitioner Curtis Flowers has been tried six separate times
for the murder of four employees of a Mississippi furniture
store. Flowers is black; three of the four victims were
white. At the first two trials, the State used its peremptory
strikes on all of the qualified black prospective jurors. In
each case, the jury convicted Flowers and sentenced him to
death, but the convictions were later reversed by the
Mississippi Supreme Court based on prosecutorial misconduct.
At the third trial, the State used all of its 15 peremptory
strikes against black prospective jurors, and the jury
convicted Flowers and sentenced him to death. The Mississippi
Supreme Court reversed again, this time concluding that the
State exercised its peremptory strikes on the basis of race
in violation of Batson v. Kentucky, 476 U.S. 79.
Flowers' fourth and fifth trials ended in mistrials. At
the fourth, the State exercised 11 peremptory strikes-all
against black prospective jurors. No available racial
information exists about the prospective jurors in the fifth
trial. At the sixth trial, the State exercised six peremptory
strikes-five against black prospective jurors, allowing one
black juror to be seated. Flowers again raised a
Batson claim, but the trial court concluded that the
State had offered race-neutral reasons for each of the five
peremptory strikes. The jury convicted Flowers and sentenced
him to death. The Mississippi Supreme Court affirmed. After
this Court vacated that judgment and remanded in light of
Foster v. Chatman, 578 U.S., the Mississippi Supreme
Court again upheld Flowers' conviction in a divided
5-to-4 decision. Justice King dissented on the
Batson issue and was joined by two other Justices.
All of the relevant facts and circumstances taken together
establish that the trial court at Flowers' sixth trial
committed clear error in concluding that the State's
peremptory strike of black prospective juror Carolyn Wright
was not motivated in substantial part by discriminatory
intent. Pp. 7-31.
(a) Under Batson, once a prima facie case of
discrimination has been shown by a defendant, the State must
provide race-neutral reasons for its peremptory strikes. The
trial judge then must determine whether the prosecutor's
stated reasons were the actual reasons or instead were a
pretext for discrimination. The Batson Court
rejected four arguments. First, the Batson Court
rejected the idea that a defendant must demonstrate a history
of racially discriminatory strikes in order to make out a
claim of race discrimination. Second, the Batson
Court rejected the argument that a prosecutor could strike a
black juror based on an assumption or belief that the black
juror would favor a black defendant. Third, the
Batson Court rejected the argument that race-based
peremptories should be permissible because black, white,
Asian, and Hispanic defendants and jurors were all
"equally" subject to race-based discrimination.
Fourth, the Batson Court rejected the argument that
race-based peremptories are permissible because both the
prosecution and defense could employ them in any individual
case and in essence balance things out. Pp. 7-15.
(b) Four categories of evidence loom large in assessing the
Batson issue here, where the State had a persistent
pattern of striking black prospective jurors from
Flowers' first through his sixth trial. Pp. 15- 30.
(1) A review of the history of the State's peremptory
strikes in Flowers' first four trials strongly supports
the conclusion that the State's use of peremptory strikes
in Flowers' sixth trial was motivated in substantial part
by discriminatory intent. The State tried to strike all 36
black prospective jurors over the course of the first four
trials. And the state courts themselves concluded that the
State had violated Batson on two separate occasions.
The State's relentless, determined effort to rid the jury
of black individuals strongly suggests that the State wanted
to try Flowers before a jury with as few black jurors as
possible, and ideally before an all-white jury. Pp. 19-22.
(2) The State's use of peremptory strikes in Flowers'
sixth trial followed the same pattern as the first four
trials. Pp. 22-23.
(3) Disparate questioning can be probative of discriminatory
intent. Miller-El v. Cockrell, 537 U.S. 322,
331-332, 344-345. Here, the State spent far more time
questioning the black prospective jurors than the accepted
white jurors-145 questions asked of 5 black prospective
jurors and 12 questions asked of 11 white seated jurors. The
record refutes the State's explanation that it questioned
black and white prospective jurors differently only because
of differences in the jurors' characteristics. Along with
the historical evidence from the earlier trials, as well as
the State's striking of five of six black prospective
jurors at the sixth trial, the dramatically disparate
questioning and investigation of black prospective jurors and
white prospective jurors at the sixth trial strongly suggest
that the State was motivated in substantial part by a
discriminatory intent. Pp. 23-26.
(4) Comparing prospective jurors who were struck and not
struck can be an important step in determining whether a
Batson violation occurred. See Snyder v.
Louisiana, 552 U.S. 472, 483-484. Here, Carolyn Wright,
a black prospective juror, was struck, the State says, in
part because she knew several defense witnesses and had
worked at Wal-Mart where Flowers' father also worked. But
three white prospective jurors also knew many individuals
involved in the case, and the State asked them no individual
questions about their connections to witnesses. White
prospective jurors also had relationships with members of
Flowers' family, but the State did not ask them follow-up
questions in order to explore the depth of those
relationships. The State also incorrectly explained that it
exercised a peremptory strike against Wright because she had
worked with one of Flowers' sisters and made apparently
incorrect statements to justify the strikes of other black
prospective jurors. When considered with other evidence, a
series of factually inaccurate explanations for striking
black prospective jurors can be another clue showing
discriminatory intent. The overall context here requires
skepticism of the State's strike of Carolyn Wright. The
trial court at Flowers' sixth trial committed clear error
in concluding that the State's peremptory strike of black
prospective juror Carolyn Wright was not motivated in
substantial part by discriminatory intent. Pp. 26-30.
240 So.3d 1082, reversed and remanded.
KAVANAUGH, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and Ginsburg, Breyer, Alito, Sotomayor, and
KAGAN, JJ., joined. ALITO, J., filed a concurring opinion.
THOMAS, J., filed a dissenting opinion, in which GORSUCH, J.,
joined as to Parts I, II, and III.
Batson v. Kentucky, 476 U.S. 79 (1986), this Court
ruled that a State may not discriminate on the basis of race
when exercising peremptory challenges against prospective
jurors in a criminal trial.
1996, Curtis Flowers allegedly murdered four people in
Winona, Mississippi. Flowers is black. He has been tried six
separate times before a jury for murder. The same lead
prosecutor represented the State in all six trials.
initial three trials, Flowers was convicted, but the
Mississippi Supreme Court reversed each conviction. In the
first trial, Flowers was convicted, but the Mississippi
Supreme Court reversed the conviction due to "numerous
instances of prosecutorial misconduct." Flowers v.
State, 773 So.2d 309, 327 (2000). In the second trial,
the trial court found that the prosecutor discriminated on
the basis of race in the peremptory challenge of a black
juror. The trial court seated the black juror. Flowers was
then convicted, but the Mississippi Supreme Court again
reversed the conviction because of prosecutorial misconduct
third trial, Flowers was convicted, but the Mississippi
Supreme Court yet again reversed the conviction, this time
because the court concluded that the prosecutor had again
discriminated against black prospective jurors in the jury
selection process. The court's lead opinion stated:
"The instant case presents us with as strong a prima
facie case of racial discrimination as we have ever seen in
the context of a Batson challenge." Flowers
v. State, 947 So.2d 910, 935 (2007). The opinion further
stated that the "State engaged in racially
discriminatory practices during the jury selection
process" and that the "case evinces an effort by
the State to exclude African-Americans from jury
service." Id., at 937, 939.
fourth and fifth trials of Flowers ended in mistrials due to
sixth trial, which is the one at issue here, Flowers was
convicted. The State struck five of the six black prospective
jurors. On appeal, Flowers argued that the State again
violated Batson in exercising peremptory strikes
against black prospective jurors. In a divided 5-to-4
decision, the Mississippi Supreme Court affirmed the
conviction. We granted certiorari on the Batson
question and now reverse. See 586 U.S.__(2018).
critical facts, taken together, require reversal.
First, in the six trials combined, the State
employed its peremptory challenges to strike 41 of the 42
black prospective jurors that it could have struck-a
statistic that the State acknowledged at oral argument in
this Court. Tr. of Oral Arg. 32. Second, in the most
recent trial, the sixth trial, the State exercised peremptory
strikes against five of the six black prospective jurors.
Third, at the sixth trial, in an apparent effort to
find pretextual reasons to strike black prospective jurors,
the State engaged in dramatically disparate questioning of
black and white prospective jurors. Fourth, the
State then struck at least one black prospective juror,
Carolyn Wright, who was similarly situated to white
prospective jurors who were not struck by the State.
not and do not decide that any one of those four facts alone
would require reversal. All that we need to decide, and all
that we do decide, is that all of the relevant facts and
circumstances taken together establish that the trial court
committed clear error in concluding that the State's
peremptory strike of black prospective juror Carolyn Wright
was not "motivated in substantial part by discriminatory
intent." Foster v. Chatman, 578 U.S.__, __
(2016) (slip op., at 23) (internal quotation marks omitted).
In reaching that conclusion, we break no new legal ground. We
simply enforce and reinforce Batson by applying it
to the extraordinary facts of this case.
reverse the judgment of the Supreme Court of Mississippi, and
we remand the case for further proceedings not inconsistent
with this opinion.
underlying events that gave rise to this case took place in
Winona, Mississippi. Winona is a small town in northern
Mississippi, just off 1-55 almost halfway between Jackson and
Memphis. The total population of Winona is about 5, 000. The
town is about 53 percent black and about 46 percent white.
1996, Bertha Tardy, Robert Golden, Derrick Stewart, and
Carmen Rigby were murdered at the Tardy Furniture store in
Winona. All four victims worked at the Tardy Furniture store.
Three of the four victims were white; one was black. In 1997,
the State charged Curtis Flowers with murder. Flowers is
black. Since then, Flowers has been tried six separate times
for the murders. In each of the first two trials, Flowers was
tried for one individual murder. In each subsequent trial,
Flowers was tried for all four of the murders together. The
same state prosecutor tried Flowers each time. The prosecutor
Flowers' first trial, 36 prospective jurors-5 black and
31 white-were presented to potentially serve on the jury. The
State exercised a total of 12 peremptory strikes, and it used
5 of them to strike the five qualified black prospective
jurors. Flowers objected, arguing under Bat-son that
the State had exercised its peremptory strikes in a racially
discriminatory manner. The trial court rejected the
Batson challenge. Because the trial court allowed
the State's peremptory strikes, Flowers was tried in
front of an all-white jury. The jury convicted Flowers and
sentenced him to death.
appeal, the Mississippi Supreme Court reversed the
conviction, concluding that the State had committed
prosecutorial misconduct in front of the jury by, among other
things, expressing baseless grounds for doubting the
credibility of witnesses and mentioning facts that had not
been allowed into evidence by the trial judge.
Flowers, 773 So.2d, at 317, 334. In its opinion, the
Mississippi Supreme Court described "numerous instances
of prosecutorial misconduct" at the trial. Id.,
at 327. Because the Mississippi Supreme Court reversed based
on prosecutorial misconduct at trial, the court did not reach
Flowers' Batson argument. See Flowers,
773 So.2d, at 327.
second trial, 30 prospective jurors-5 black and 25 white-were
presented to potentially serve on the jury. As in
Flowers' first trial, the State again used its strikes
against all five black prospective jurors. But this time, the
trial court determined that the State's asserted reason
for one of the strikes was a pretext for discrimination.
Specifically, the trial court determined that one of the
State's proffered reasons-that the juror had been
inattentive and was nodding off during jury selection-for
striking that juror was false, and the trial court therefore
sustained Flowers' Batson challenge. The trial
court disallowed the strike and sat that black juror on the
jury. The jury at Flowers' second trial consisted of 11
white jurors and 1 black juror. The jury convicted Flowers
and sentenced him to death.
appeal, the Mississippi Supreme Court again reversed. The
court ruled that the prosecutor had again engaged in
prosecutorial misconduct in front of the jury by, among other
things, impermissibly referencing evidence and attempting to
undermine witness credibility without a factual basis. See
Flowers v. State, 842 So.2d 531, 538, 553 (2003).
Flowers' third trial, 45 prospective jurors-17 black and
28 white-were presented to potentially serve on the jury. One
of the black prospective jurors was struck for cause, leaving
16. The State exercised a total of 15 peremptory strikes, and
it used all 15 against black prospective jurors. Flowers
again argued that the State had used its peremptory strikes
in a racially discriminatory manner. The trial court found
that the State had not discriminated on the basis of race.
See Flowers, 947 So.2d, at 916. The jury in
Flowers' third trial consisted of 11 white jurors and 1
black juror. The lone black juror who served on the jury was
seated after the State ran out of peremptory strikes. The
jury convicted Flowers and sentenced him to death.
appeal, the Mississippi Supreme Court yet again reversed,
concluding that the State had again violated Batson
by discriminating on the basis of race in exercising all 15
of its peremptory strikes against 15 black prospective
jurors. See Flowers, 947 So.2d, at 939. The
court's lead opinion stated: "The instant case
presents us with as strong a prima facie case of racial
discrimination as we have ever seen in the context of a
Batson challenge." Id., at 935. The
opinion explained that although "each individual strike
may have justifiably appeared to the trial court to be
sufficiently race neutral, the trial court also has a duty to
look at the State's use of peremptory challenges in
toto." Id., at 937. The opinion emphasized that
"trial judges should not blindly accept any and every
reason put forth by the State, especially" when
"the State continues to exercise challenge after
challenge only upon members of a particular race."
Ibid. The opinion added that the "State engaged
in racially discriminatory practices" and that the
"case evinces an effort by the State to exclude
African-Americans from jury service." Id., at
Flowers' fourth trial, 36 prospective jurors-16 black and
20 white-were presented to potentially serve on the jury. The
State exercised a total of 11 peremptory strikes, and it used
all 11 against black prospective jurors. But because of the
relatively large number of prospective jurors who were black,
the State did not have enough peremptory challenges to
eliminate all of the black prospective jurors. The seated
jury consisted of seven white jurors and five black jurors.
That jury could not reach a verdict, and the proceeding ended
in a mistrial.
the fifth trial, there is no available racial information
about the prospective jurors, as distinct from the jurors who
ultimately sat on the jury. The jury was composed of nine
white jurors and three black jurors. The jury could not reach
a verdict, and the trial again ended in a mistrial.
sixth trial, which we consider here, 26 prospective jurors-6
black and 20 white-were presented to potentially serve on the
jury. The State exercised a total of six peremptory strikes,
and it used five of the six against black prospective jurors,
leaving one black juror to sit on the jury. Flowers again
argued that the State had exercised its peremptory strikes in
a racially discriminatory manner. The trial court concluded
that the State had offered race-neutral reasons for each of
the five peremptory strikes against the five black
prospective jurors. The jury at Flowers' sixth trial
consisted of 11 white jurors and 1 black juror. That jury
convicted Flowers of murder and sentenced him to death.
divided decision, the Mississippi Supreme Court agreed with
the trial court on the Batson issue and stated that
the State's "race-neutral reasons were valid and not
merely pretextual." Flowers v. State, 158 So.3d
1009, 1058 (2014). Flowers then sought review in this Court.
This Court granted Flowers' petition for a writ of
certiorari, vacated the judgment of the Mississippi Supreme
Court, and remanded for further consideration in light of the
decision in Foster, 578 U.S.__. Flowers v.
Mississippi, 579 U.S. (2016). In Foster, this
Court held that the defendant Foster had established a
Batson violation. 578 U.S., at__(slip op., at 25).
remand, the Mississippi Supreme Court by a 5-to-4 vote again
upheld Flowers' conviction. See 240 So.3d 1082 (2017).
Justice King wrote a dissent for three justices. He stated:
"I cannot conclude that Flowers received a fair trial,
nor can I conclude that prospective jurors were not subjected
to impermissible discrimination." Id., at 1172.
According to Justice King, both the trial court and the
Mississippi Supreme Court "completely disregarded] the
constitutional right of prospective jurors to be free from a
racially discriminatory selection process."
Id., at 1171. We granted certiorari. See 586 U.S.__.
than voting, serving on a jury is the most substantial
opportunity that most citizens have to participate in the
democratic process. See Powers v. Ohio, 499 U.S.
selection in criminal cases varies significantly based on
state and local rules and practices, but ordinarily consists
of three phases, which we describe here in general terms.
First, a group of citizens in the community is
randomly summoned to the courthouse on a particular day for
potential jury service. Second, a subgroup of those
prospective jurors is called into a particular courtroom for
a specific case. The prospective jurors are often questioned
by the judge, as well as by the prosecutor and defense
attorney. During that second phase, the judge may excuse
certain prospective jurors based on their answers.
Third, the prosecutor and defense attorney may
challenge certain prospective jurors. The attorneys may
challenge prospective jurors for cause, which usually stems
from a potential juror's conflicts of interest or
inability to be impartial. In addition to challenges for
cause, each side is typically afforded a set number of
peremptory challenges or strikes. Peremptory strikes have
very old credentials and can be traced back to the common
law. Those peremptory strikes traditionally may be used to
remove any potential juror for any reason-no questions asked.
blanket discretion to peremptorily strike prospective jurors
for any reason can clash with the dictates of the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution. This case arises at the intersection of
the peremptory challenge and the Equal Protection Clause. And
to understand how equal protection law applies to peremptory
challenges, it helps to begin at the beginning.
in 1868 in the wake of the Civil War, the Equal Protection
Clause of the Fourteenth Amendment provides that no State
shall "deny to any person within its jurisdiction the
equal protection of the laws." A primary objective of
the Equal Protection Clause, this Court stated just five
years after ratification, was "the freedom of the slave
race, the security and firm establishment of that freedom,
and the protection of the newly-made freeman and citizen from
the oppressions of those who had formerly exercised unlimited
dominion over him." Slaughter-House Cases, 16
Wall. 36, 71 (1873).
1875, to help enforce the Fourteenth Amendment, Congress
passed and President Ulysses S. Grant signed the Civil Rights
Act of 1875. Ch. 114, 18 Stat. 335. Among other things, that
law made it a criminal offense for state officials to exclude
individuals from jury service on account of their race. 18
U.S.C. §243. The Act provides: "No citizen
possessing all other qualifications which are or may be
prescribed by law shall be disqualified for service as grand
or petit juror in any court of the United States, or of any
State on account of race, color, or previous condition of
1880, just 12 years after ratification of the Fourteenth
Amendment, the Court decided Strauder v. West
Virginia, 100 U.S. 303. That case concerned a West
Virginia statute that allowed whites only to serve as jurors.
The Court held the law unconstitutional.
reaching its conclusion, the Court explained that the
Fourteenth Amendment required "that the law in the
States shall be the same for the black as for the white; that
all persons, whether colored or white, shall stand equal
before the laws of the States, and, in regard to the colored
race, for whose protection the amendment was primarily
designed, that no discrimination shall be made against them
by law because of their color." Id., at 307. In
the words of the Strauder Court: "The very fact
that colored people are singled out and expressly denied by a
statute all right to participate in the administration of the
law, as jurors, because of their color, though they are
citizens, and may be in other respects fully qualified, is
practically a brand upon them, affixed by the law, an
assertion of their inferiority, and a stimulant to that race
prejudice which is an impediment to securing to individuals
of the race that equal justice which the law aims to secure
to all others." Id., at 308. For those reasons,
the Court ruled that the West Virginia statute excluding
blacks from jury service violated the Fourteenth Amendment.
Court later explained in Brown v. Board of
Education, 347 U.S. 483 (1954), the Court's
decisions in the Slaughter-House Cases and
Strauder interpreted the Fourteenth Amendment
"as proscribing all state-imposed discriminations
against the Negro race," including in jury service.
Brown, 347 U.S., at 490.
decades after Strauder, the Court reiterated that
States may not discriminate on the basis of race in jury
selection. See, e.g., Neal v. Delaware, 103 U.S.
370, 397 (1881); Carter v. Texas, 111 U.S. 442, 447
(1900); Norris v. Alabama, 294 U.S. 587, 597-599
(1935); Hale v. Kentucky, 303 U.S. 613, 616 (1938)
(per curiam); Pierre v. Louisiana, 306 U.S. 354, 362
(1939); Smith v. Texas, 311 U.S. 128, 130-131
(1940); Avery v. Georgia, 345 U.S. 559, 562 (1953);
Hernandez v. Texas, 347 U.S. 475, 477-478, 482
(1954); Coleman v. Alabama, 377 U.S. 129, 133
critical problems persisted. Even though laws barring blacks
from serving on juries were unconstitutional after
Strauder, many jurisdictions employed various
discriminatory tools to prevent black persons from being
called for jury service. And when those tactics failed, or
were invalidated, prosecutors could still exercise peremptory
strikes in individual cases to remove most or all black
century after Strauder, the freedom to exercise
peremptory strikes for any reason meant that "the
problem of racial exclusion from jury service" remained
"widespread" and "deeply entrenched." 5
U.S. Commission on Civil Rights Report 90 (1961). Simple math
shows how that happened. Given that blacks were a minority of
the population, in many jurisdictions the number of
peremptory strikes available to the prosecutor exceeded the
number of black prospective jurors. So prosecutors could
routinely exercise peremptories to strike all the black
prospective jurors and thereby ensure all-white juries. The
exclusion of black prospective jurors was almost total in
certain jurisdictions, especially in cases involving black
defendants. Similarly, defense counsel could use-and
routinely did use-peremptory challenges to strike all the
black prospective jurors in cases involving white defendants
and black victims.
aftermath of Strauder, the exclusion of black jurors
became more covert and less overt-often accomplished through
peremptory challenges in individual courtrooms rather than by
blanket operation of law. But as this Court later noted, the
results were the same for black jurors and black defendants,
as well as for the black community's confidence in the
fairness of the American criminal justice system. See
Batson, 476 U.S., at 98-99.
years after Strauder, the Court decided Swain v.
Alabama, 380 U.S. 202 (1965). The defendant Swain was
black. Swain was convicted of a capital offense in Talladega
County, Alabama, and sentenced to death. Swain presented
evidence that no black juror had served on a jury in
Talladega County in more than a decade. See id., at
226. And in Swain's case, the prosecutor struck all six
qualified black prospective jurors, ensuring that Swain was
tried before an all-white jury. Swain invoked
Strauder to argue that the prosecutor in his case
had impermissibly discriminated on the basis of race by using
peremptory challenges to strike the six black prospective
jurors. See 380 U.S., at 203, 210.
Court ruled that Swain had not established unconstitutional
discrimination. Most importantly, the Court held that a
defendant could not object to the State's use of
peremptory strikes in an individual case. In the Court's
words: "[W]e cannot hold that the striking of Negroes in
a particular case is a denial of equal protection of the
laws." Id., at 221. The Swain Court
reasoned that prosecutors do not always judge prospective
jurors individually when exercising peremptory strikes.
Instead, prosecutors choose which prospective jurors to
strike "in light of the limited knowledge counsel has of
them, which may include their group affiliations, in the
context of the case to be tried." Ibid. In the
Court's view, the prosecutor could strike prospective
jurors on the basis of their group affiliations, including
race. In other words, a prosecutor could permissibly strike a
prospective juror for any reason, including the assumption or
belief that a black prospective juror, because of race, would
be favorable to a black defendant or unfavorable to the
State. See id., at 220-221.
sure, the Swain Court held that a defendant could
make out a case of racial discrimination by showing that the
State "in case after case, whatever the circumstances,
whatever the crime and whoever the defendant or the victim
may be," had been responsible for the removal of
qualified black prospective jurors so that no black jurors
"ever serve on petit juries." Id., at 223.
But Swains high bar for establishing a
constitutional violation was almost impossible for any
defendant to surmount, as the aftermath of Swain
years later, in its 1986 decision in Batson, the
Court revisited several critical aspects of Swain
and in essence overruled them. In so doing, the
Batson Court emphasized that "the central
concern" of the Fourteenth Amendment "was to put an
end to governmental discrimination on account of race."
476 U.S., at 85. The Batson Court noted that
Swain had left prosecutors' peremptory
challenges "largely immune from constitutional
scrutiny." 476 U.S., at 92-93. In his concurrence in
Batson, Justice Byron White (the author of
Swain) agreed that Swain should be
overruled. He stated: "[T]he practice of peremptorily
eliminating blacks from petit juries in cases with black
defendants remains widespread, so much so" that "I
agree with the Court that the time has come to rule as it
has." 476 U.S., at 101-102.
Batson, once a prima facie case of discrimination
has been shown by a defendant, the State must provide
race-neutral reasons for its peremptory strikes. The trial
judge must determine whether the prosecutor's stated
reasons were the actual reasons or instead were a pretext for
discrimination. Id., at 97-98.
parts of Batson warrant particular emphasis here.
First, the Batson Court rejected
Swains insistence that a defendant demonstrate a
history of racially discriminatory strikes in order to make
out a claim of race discrimination. See 476 U.S., at 95.
According to the Batson Court, defendants had run
into "practical difficulties" in trying to prove
that a State had systematically "exercised peremptory
challenges to exclude blacks from the jury on account of
race." Id., at 92, n. 17. The Batson
Court explained that, in some jurisdictions, requiring a
defendant to "investigate, over a number of cases, the
race of persons tried in the particular jurisdiction, the
racial composition of the venire and petit jury, and the
manner in which both parties exercised their peremptory
challenges" posed an "insurmountable" burden.
addition to that practical point, the Court stressed a basic
equal protection point: In the eyes of the Constitution, one
racially discriminatory peremptory strike is one too many.
those reasons, the Batson Court held that a criminal
defendant could show "purposeful discrimination in
selection of the petit jury solely on evidence concerning the
prosecutor's exercise of peremptory challenges at the
defendant's trial." Id., at 96 (emphasis
the Batson Court rejected Swains statement
that a prosecutor could strike a black juror based on an
assumption or belief that the black juror would favor a black
defendant. In some of the most critical sentences in the
Batson opinion, the Court emphasized that a
prosecutor may not rebut a claim of discrimination "by
stating merely that he challenged jurors of the
defendant's race on the assumption-or his intuitive
judgment-that they would be partial to the defendant because
of their shared race." 476 U.S., at 97. The Court
elaborated: The Equal Protection Clause "forbids the
States to strike black veniremen on the assumption that they
will be biased in a particular case simply 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 assumptions, which
arise solely from the jurors' race." Id.,
at 97-98. In his concurrence, Justice Thurgood Marshall drove
the point home: "Exclusion of blacks from a jury, solely
because of race, can no more be justified by a belief that
blacks are less likely than whites to consider 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 to be
entrusted with that role." Id., at 104-105
(internal quotation marks and citations omitted).
the Batson Court did not accept the argument that
race-based peremptories should be permissible because black,
white, Asian, and Hispanic defendants and jurors were all
"equally" subject to race-based discrimination. The
Court stated that each removal of an individual juror because
of his or her race is a constitutional violation.
Discrimination against one defendant or juror on account of
race is not remedied or cured by discrimination against other
defendants or jurors on account of race. As the Court later
explained: Some say that there is no equal protection
violation if individuals "of all races are subject to
like treatment, which is to say that white jurors are subject
to the same risk of peremptory challenges based on race as
are all other jurors. The suggestion that racial
classifications may survive when visited upon all persons is
no more authoritative today than the case which advanced the
theorem, Plessy v. Ferguson, 163 U.S. 537 (1896).
This idea has no place in our modern equal protection
jurisprudence. It is axiomatic that racial classifications do
not become legitimate on the assumption that all persons
suffer them in equal degree." Powers, 499 U.S.,
at 410 (citing Loving v. Virginia, 388 U.S. 1
the Batson Court did not accept the argument that
race-based peremptories are permissible because both the
prosecution and defense could employ them in any individual
case and in essence balance things out. Under the Equal
Protection Clause, the Court stressed, even a single instance
of race discrimination against a prospective juror is
impermissible. Moreover, in criminal cases involving black
defendants, the both-sides-can-do-it argument overlooks the
percentage of the United States population that is black
(about 12 percent) and the cold reality of jury selection in
most jurisdictions. Because blacks are a minority in most
jurisdictions, prosecutors often have more peremptory strikes
than there are black prospective jurors on a particular
panel. In the pre-Batson era, therefore, allowing
each side in a case involving a black defendant to strike
prospective jurors on the basis of race meant that a
prosecutor could eliminate all of the black jurors, but a
black defendant could not eliminate all of the white jurors.
So in the real world of criminal trials against black
defendants, both history and math tell us that a system of
race-based peremptories does not treat black defendants and
black prospective jurors equally with prosecutors and white
prospective jurors. Cf. Batson, 476 U.S., at 99.
justice under law requires a criminal trial free of racial
discrimination in the jury selection process. Enforcing that
constitutional principle, Batson ended the
widespread practice in which prosecutors could (and often
would) routinely strike all black prospective jurors in cases
involving black defendants. By taking steps to eradicate
racial discrimination from the jury selection process,
Batson sought to protect the rights of defendants
and jurors, and to enhance public confidence in the fairness
of the criminal justice system. Batson immediately
revolutionized the jury selection process that takes place
every day in federal and state criminal courtrooms throughout
the United States.
decades since Batson, this Court's cases have
vigorously enforced and reinforced the decision, and guarded
against any backsliding. See Foster, 578 U.S.__;
Snyder v. Louisiana, 552 U.S. 472 (2008);
Miller-El v. Dretke, 545 U.S. 231 (2005)
(Miller-El II). Moreover, the Court has extended
Batson in certain ways. A defendant of any race may
raise a Batson claim, and a defendant may raise a
Batson claim even if the defendant and the excluded
juror are of different races. See Hernandez, 347
U.S., at 477-478; Powers, 499 U.S., at 406.
Moreover, Batson now applies to gender
discrimination, to a criminal defendant's peremptory
strikes, and to civil cases. See J. E. B. v. Alabama
exrel. T. B., 511 U.S. 127, 129 (1994); Georgia v.
McCollum, 505 U.S. 42, 59 (1992); Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 616 (1991).
particular relevance here, Batson's holding
raised several important evidentiary and procedural issues,
three of which we underscore.
what factors does the trial judge consider in evaluating
whether racial discrimination occurred? Our precedents allow
criminal defendants raising Batson challenges to
present a variety of evidence to support a claim that a
prosecutor's peremptory strikes were made on the basis of
race. For example, defendants may present:
• statistical evidence about the prosecutor's use of
peremptory strikes against black prospective jurors as
compared to white prospective jurors in the case;
• evidence of a prosecutor's disparate questioning
and investigation of black and white prospective jurors in
• side-by-side comparisons of black prospective jurors
who were struck and white prospective jurors who were not
struck in the case;
• a prosecutor's misrepresentations of the record
when defending the strikes during the Batson
• relevant history of the State's peremptory strikes
in past cases; or
• other relevant circumstances that bear upon the is-
sue of racial discrimination.
See Foster, 578 U.S.__; Snyder, 552 U.S.
472; Miller-El II, 545 U.S. 231;
Batson, 476 U.S. 79.
who enforces Batson? As the Batson Court
itself recognized, the job of enforcing Batson rests
first and foremost with trial judges. See id., at
97, 99, n. 22. America's trial judges operate at the
front lines of American justice. In criminal trials, trial
judges possess the primary responsibility to enforce
Batson and prevent racial discrimination from
seeping into the jury selection process.
Batson Court explained and as the Court later
reiterated, once a prima facie case of racial discrimination
has been established, the prosecutor must provide
race-neutral reasons for the strikes. The trial court must
consider the prosecutor's race-neutral explanations in
light of all of the relevant facts and circumstances, and in
light of the arguments of the parties. The trial judge's
assessment of the prosecutor's credibility is often
important. The Court has explained that "the best
evidence of discriminatory intent often will be the demeanor
of the attorney who exercises the challenge."
Snyder, 552 U.S., at 477 (quotation altered).
"We have recognized that these determinations of
credibility and demeanor lie peculiarly within a trial
judge's province." Ibid, (internal
quotation marks omitted). The trial judge must determine
whether the prosecutor's proffered reasons are the actual
reasons, or whether the proffered reasons are pretextual and
the prosecutor instead exercised peremptory strikes on the
basis of race. The ultimate inquiry is whether the State was
"motivated in substantial part by discriminatory
intent." Foster, 578 U.S., at__(slip op., at
23) (internal quotation marks omitted).
what is the role of appellate review? An appeals court looks
at the same factors as the trial judge, but is necessarily
doing so on a paper record. "Since the trial judge's
findings in the context under consideration here largely will
turn on evaluation of credibility, a reviewing court
ordinarily should give those findings great deference."
Batson, 476 U.S., at 98, n. 21. The Court has
described the appellate standard of review of the trial
court's factual determinations in a Batson
hearing as "highly deferential." Snyder,
552 U.S., at 479. "On appeal, ...