505 U.S. 42 (1992), argued 26 Feb. 1992, decided 18 June 1992 by vote of 7 to 2; Blackmun for the Court, Rehnquist and Thomas concurring, O’Connor and Scalia dissenting.
The Supreme Court in Batson v. Kentucky (1986) issued one of its most far-reaching criminal justice decisions. It held that the guarantee of equal protection of the laws in the Fourteenth Amendment meant that states could not eliminate prospective jurors based on race. State laws had typically allowed prosecutors to use so-called peremptory challenges, which permitted the exclusion of a juror without explanation. Before Batson prosecutors had used these challenges to shape juries sympathetic to the state's case. Batson, however, required that such challenges had to be exercised in a racially neutral way. The Court's holding, however, did not apply to defense counsel, since, for purpose of the Fourteenth Amendment's State Action Clause, such individuals were deemed to be private rather than public persons. The justices in Georgia v. McCollum addressed just this issue.
The case involved an appeal from a ruling by the Georgia Supreme Court involving three white owners of a dry-cleaning establishment in Albany, Georgia. The three had been indicted for assaulting two black customers. In response, leaders of the black community called for a boycott of the dry-cleaning business. The state attorney general's office asked the trial judge to order the defense counsel not to use their peremptory challenges to exclude blacks from the jury. The Georgia Supreme Court heard this issue on appeal and declined to extend the Batson precedent to defense counsel. The state of Georgia then appealed to the U.S. Supreme Court.
Justice Harry Blackmun's opinion for the Court stretched the Batson principle to cover these new circumstances. Blackmun held that “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges” (p. 59). Moreover, Blackmun argued, it is “an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens based on their race” (p. 57). The Fourteenth Amendment requirement that state action be present in order to invoke the Equal Protection Clause was satisfied based on the argument that defense lawyers in criminal cases were essentially acting as agents of the state in helping to compose a governmental body, the jury.
The seven-vote majority, however, was weaker than the actual numbers suggest. Two of the votes, by Chief Justice William H. Rehnquist and Justice Clarence Thomas, were cast for the new rule only because the previous year, in Edmonson v. Leesville (1991), the Court had extended the Batson principle to civil trials, where both sides could be private parties. Moreover, many defense attorneys worried, as did the two dissenters in the case, that the new rule would actually make it more difficult for minority defendants to place on the jury persons who might be supportive of them based on race and ethnicity. Justice Sandra Day O’Connor complained that the new ruling would make mixed-race juries harder to attain.