499 U.S. 400 (1991), argued 9 Oct. 1990, decided 1 Apr. 1991 by vote of 7 to 2; Kennedy for the Court, Scalia in dissent. Clarifying the basis of its decision in Batson v. Kentucky (1986), the Court ruled that the prosecution in a criminal trial cannot use peremptory challenges to exclude potential jurors on the basis of race, whether or not the defendant and the excluded potential juror are of the same race. Racial discrimination in jury selection, wrote Justice Anthony Kennedy, violates not only the defendant's right to a fair trial but also the potential juror's right “to participate in the administration of justice” (p. 1368). Moreover, the Court held that “a criminal defendant has standing to raise the equal protection rights of a potential juror excluded from service in violation of these principles” (p. 1370).
In dissent, Justice Antonin Scalia argued that the Court's prior holdings sought only to protect criminal defendants from the exclusion of members of their own race from juries and to guarantee that no citizen could be excluded from jury lists on the basis of race. “The sum and substance of the Court's lengthy analysis,” he wrote, “is that, since a denial of equal protection to other people occurred at the defendant's trial, though it did not affect the fairness of that trial, the defendant must go free” (p. 1381). Two years later the Court in Georgia v. McCollum (1992) extended the principle from Batson to include both prosecution and defense counsel in civil cases.