500 U.S. 614 (1991), argued 15 Jan. 1991, decided 3 June 1991 by vote of 6 to 3; Kennedy for the Court, O’Connor, Rehnquist, and Scalia in dissent.
Extending its decision in *Batson v. Kentucky (1986), the Court held that potential jurors could not be peremptorily excluded from a federal jury on the basis of race in civil as well as criminal trials. Such exclusion, the Court held, violates the excluded juror's Fifth Amendment rights. An opposing litigant has third-party standing to raise the excluded juror's rights in the opposing litigant's behalf. The equal protection component of the Fifth Amendment applies even though the exclusion is effectuated by a private attorney or private party and not by the state itself. “If a government confers on a private body the power to choose the government's employees or officials,” Justice Anthony Kennedy held, “the private body will be bound by the constitutional mandate of race-neutrality” (p. 2085).
The dissenters, led by Justice Sandra Day O’Connor, argued that “[n]ot everything that happens in a courtroom is state action,” and that the peremptory exclusion of civil jurors “is fundamentally a matter of private choice” not covered by the Fifth and Fourteenth Amendments (p. 2089).
A year later, however, the Court in *Georgia v. McCollum (1992) extended the principle from Batson that neither the prosecutor nor defense counsel can challenge jurors on the basis of race in civil cases.