AGAINST THE PEREMPTORY CHALLENGE. Adam Liptak has an excellent article (via) about peremptory challenges and their ongoing use to produce racially unrepresentative juries. Liptak mentions the 2005 Miller-El case, which I discussed here. (Remarkably, despite extensive evidence that created an exceptionally strong inference of unconstitutional race-based peremptories, Scalia, Thomas and Rehnquist dissented.) This case illustrates, however, the difficulty of proving racial discrimination no matter how overwhelming the patterns of exclusion are, and despite the Supreme Court's invitation state courts are unlikely to supervise procedures very aggressively. Like Liptak, Thurgood Marshall, and Stephen Breyer, I think it's time to do away with peremptory challenges entirely. They aren't constitutionally mandated, and it's increasingly hard to see how permitting the arbitrary exclusion of jurors would lead to fairer trials.

Breyer quotes Arthur Goldberg, who noted that "[w]ere it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former." This does seem to be the choice we're faced with in many cases, and Goldberg is certainly right about how such a choice must be resolved.

--Scott Lemieux

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