476 U.S. 79 (1986), argued 12 Dec. 1985, decided 30 Apr. 1986 by vote of 7 to 2; Powell for the Court, White, Marshall, O’Connor, and Stevens (with Brennan) concurring, Burger and Rehnquist in dissent. Batson, a black man, was tried for second-degree burglary and the receipt of stolen goods. The judge conducted the voir dire examination of the potential jurors, excused some of them for cause, and then permitted prosecution and defense to exercise their peremptory challenges—six and nine respectively. The prosecutor's exercise of the peremptories removed all four black persons on the panel. Batson moved for a discharge of the jury, asserting that the removal of all of the black panelists violated his Sixth and Fourteenth Amendment rights to a jury drawn from a cross section of the community as well as his Fourteenth Amendment right to the equal protection of the laws. The trial judge denied the motion and Batson was convicted on both counts. The Supreme Court of Kentucky denied Batson's appeal and affirmed the verdict. The U.S. Supreme Court reversed.
Ruling in favor of Batson, the Court placed substantial limits on the prosecutor's use of peremptory challenges. Overruling Swain v. Alabama (1965) in part, the Court applied the equal protection principle to the exercise of peremptory challenges. For all practical purposes, it thereby transformed peremptory challenges into challenges for cause, even if the holding refers to a lesser (but undefined) standard to sustain a disputed peremptory challenge than would be required to support a challenge for cause. The Batson Court's claim that it did not “undermine the contribution the [peremptory] challenge generally makes to the administrations of justice” (pp. 98–99) is entirely unconvincing.
The thrust of Batson is not toward color-blind but color-conscious law, applying a racial test to the prosecutor's use of peremptory challenges. The ultimate effect of Batson may even be the de facto introduction of racial quotas for trial juries since the racially disproportionate use of peremptories now may be attacked as constitutionally improper. Given the lack of standards for a successful rebuttal, the only safe use of peremptories will be racially proportionate to venire and or community makeup.
The Court failed to distinguish between the selection of the jury venire (where representativeness is the chief concern) and the selection of the jury (where impartiality must be the primary consideration). The Court also failed to distinguish between general and particular jury fitness. A person's general fitness to be a juror (to be included in the venire) is, indeed, not a matter of race. A person's suitability to serve on a particular jury, however, may well be related to race. It is not difficult to imagine a crime that so offends a particular social group that it must be feared that all of its members lack the impartiality of the proper juror. When exercising peremptory challenges, attorneys must be able to act upon this fear. To hold otherwise is to forfeit at least the appearance of jury impartiality. Given that the facts of jury impartiality cannot be known with certainty, the appearance of impartiality becomes a matter of extraordinary importance. All this the Court did not recognize (p. 97).