Soong, Susan Y.

English

Digital Commons @ University at Buffalo School of Law

Circles: Buffalo Women's Journal of Law and Social Policy Volume 3 Article 8 1-1-1995 New Formula for Peremptory Challenges: XX=XY Susan Y. Soong United States Court of Appeals for the Ninth Circuit Follow this and additional works at: https://digitalcommons.law.buffalo.edu/circles  Part of the Courts Commons, and the Criminal Procedure Commons Recommended Citation Soong, Susan Y. (1995) "New Formula for Peremptory Challenges: XX=XY," Circles: Buffalo Women's Journal of Law and Social Policy: Vol. 3 , Article 8. Available at: https://digitalcommons.law.buffalo.edu/circles/vol3/iss1/8 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Circles: Buffalo Women's Journal of Law and Social Policy by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. CIRCLES 1995 Vol. IIIA NEW FORMULA FOR PEREMPTORY CHALLENGES: XX=XYby Susan Y. Soong*On April 19, 1994, the Supreme Court held in J.E.B. v. Alabama ex rel. TB.' that peremptorychallenges based on gender are prohibited by the Equal Protection Clause of the Fourteenth Amendment.The Court expanded the rule of Batson v. Kentucky,2 which prohibited race discrimination in the use ofperemptory challenges under the Equal Protection Clause. As a result of JE.B., peremptory challenges tostrike jurors on the basis of gender-related stereotypes are unconstitutional. "[Glender, like race, is anunconstitutional proxy for juror competence and impartiality."3This article will analyze the opinion in J.E.B. v. Alabama ex rel. TB. and will consider the impactof the decision in light of three gender constructs: formal equality theory, substantive equality theory, anddifferent voice theory.FACTS AND PROCEDURAL HISTORYThe respondent, the State of Alabama, used peremptory challenges to strike men from a juryhearing a paternity and child support suit in the District Court of Jackson County, Alabama. The panel ofprospective jurors was composed of twelve men and twenty-four women. Three jurors were excused forcause, leaving ten men and twenty-three women. The State used nine of its ten peremptory strikes toremove men from the jury and the petitioner, J.E.B.,4 used one of his strikes to remove the remaining manfrom the jury. The end result was a jury composed entirely of women.5J.E.B. objected twice, once before the jury was empaneled and once again after the judgmentagainst J.E.B. was entered. In both objections, J.E.B. argued that the reasoning of Batson6 and theunconstitutionality of peremptory challenges based on race similarly prohibit peremptory challenges basedon gender. The District Court of Jackson County overruled J.E.B.'s objections, ruling thatnondiscrimination in peremptory challenges under Batson did not include gender discrimination.7 TheAlabama Court of Civil Appeals affirmed the lower court's finding and the Supreme Court of Alabamadenied certiorari.' The United States Supreme Court granted certiorari and reversed, finding that the EqualProtection Clause prohibits peremptory challenges on the basis of gender as well as on the basis of race.9* Susan Y. Soong is a 1994 graduate of the University at Buffalo School of Law. She is currently a staff attorney with theUnited States Court of Appeals for the Ninth Circuit. The views expressed are those of the author and do not represent courtpolicy or the views of any judges.1 114 S. Ct. 1419 (1994).2 476 U.S. 79 (1986).3 114 S. Ct. at 1421.4 The petitioner, J.E.B., is the putative father in the action. 114 S. Ct. 1419 (1994).5 114 S. Ct. at 1421-2.6 476 U.S. 79 (1986).7 114. S. Ct. at 1422.8 606 So.2d 156 (Ala. Civ. App. 1992), cert. denied, No. 1911717 (Ala. Oct. 23, 1992).9 Justice Blackmun wrote the opinion for the majority, joined by Justices Stevens, O'Connor, Souter, and Ginsburg. JusticesO'Connor and Kennedy wrote separate concurring opinions. There were two dissenting opinions, one by Chief JusticeRehnquist and another by Justice Scalia, who was joined by Chief Justice Rehnquist and Justice Thomas.CIRCLES 1995 Vol. IIIANALYSISI. Formal Equality TheoryThe theory of formal equality mandates equal treatment of similarly situated individuals."° Aperson should be treated according to his or her actual characteristics, not according to stereotypicalassumptions based on his or her gender." Formal equality insists that, in the jury selection process,similarly situated male and female prospective jurors may not be treated differently on the basis ofgender-based stereotypes.The decision in J.E.B. is consistent with the theory of formal equality. In the majority opinion ofJE.B., Justice Blackmun noted that there is a "promise of equality under the law ... all citizens, regardlessof race, ethnicity, or gender have the chance to take part in our democracy."' 2 In accordance with formalequality, the majority found that gender-based stereotypes are unacceptable bases for striking a prospectivejuror.The Court considered and rejected these gender-based assumptions about jurors, presented by theState:[M]en otherwise totally qualified to serve upon a jury might be moresympathetic and receptive to the arguments of a man alleged in a paternityaction to be the father of an out-of-wedlock child, while women equallyqualified to serve upon a jury might be more sympathetic and receptive tothe arguments of the complaining witness who bore the child. 3The Court called the State's gender-based stereotypes about sympathies and receptiveness "grossgeneralizations"' 4 and refused to accept them as sufficient justification for peremptory challenges.The Court further recognized that the use of gender-based stereotypes in jury selection is especiallyinvidious because it perpetuates and reinforces those stereotypes." "When state actors exercise peremptorychallenges in reliance on gender stereotypes, they ratify and reinforce prejudicial views of the relativeabilities of men and women."' 6JE.B. is a victory for those who advocate race-blind and gender-blind equality under thenondiscrimination clause of the Fourteenth Amendment. "[Any correlation between a juror's gender andattitudes is irrelevant as a matter of constitutional law."' 7 A person has a right to serve on a jury and aright to be free from peremptory strikes regardless of the stereotypes associated with that person's race orgender. 1810 See Robin West, Equality Theory, Marital Rape, and the Promise of the First Amendment, 42 FLA. L. REV. 45,56-7(1990).11 See Wendy Williams, Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. REV.L. & SOC. CHANGE 325 (1985); Mary E, Becker, Prince Charming: Abstract Equality, 1987 SuP. CT. REV. 201.12 114 S. Ct. at 1430.13 Brief for Respondent at 10, J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994) (quoted in 114 S. Ct. 1419, 1426(1994)).114 S. Ct. at 1426.15 KATHARmNE T. BARTLETT, GENDER AND LAW 72 (1993).16 114 S. Ct. at 1427.17 114 S. Ct. at 1432 (O'Connor, J., concurring).18 Peremptory strikes remain valid if based upon factors other than gender or race. The J.E.B. decision "does not imply theelimination of all peremptory challenges." 114 S. Ct. at 1429.CIRCLES 1995 Vol. IIIII. Beyond Formal EqualityThe concern with using a formal equality framework is that it does not take into account a historyof gender that has been fraught with complications arising from misconceptions, biases, and real difference.Substantive equality theory and different voice theory have emerged as alternatives to formal equality.Each theory takes into account sociological and historical constructs and applies a different analysis to thesame gendered issue. As Justice O'Connor wrote in her concurring opinion in JEB., "to say that gendermakes no difference as a matter of law is not to say that gender makes no difference as a matter of fact."' 9Because men and women are socialized in different ways in American society, definite differences existbetween them.But can one give gendered labels to attitudes about the death penalty or automobile accidentlawsuits? Is impartiality dependent upon one's gender? Is impartiality impossible simply because everyonehas a gender? Justice Blackmun's majority opinion in JE.B. 'answered all of these questions in thenegative, yet many, including Justice O'Connor, would hesitate before answering. Differences between menand women do exist in experience, perception, and attitude.2" Differences relied upon in peremptory strikesare often assigned and labeled in gender terms. Substantive equality theory and different voice theoryrecommend that society begin to recognize and incorporate these differences into the legal system.A. Substantive Equality TheoryThe theory of formal equality relies upon treatment, not results, for its justification. Substantiveequality theory, on the other hand, focuses on the results of treatment. 2' Therefore, an analysis ofperemptory challenges using substantive equality theory would look to the results of the treatment of jurors,or the resulting gender representation on empaneled juries. To guarantee fair outcomes, substantiveequality theory incorporates the history of discrimination into the analysis.The majority in J.E.B. offered examples of past discrimination against women in jury service asevidence of outdated stereotypes. Because historically women were presumed too fragile or too easilyupset to withstand the indecencies of the courtroom, they were excluded or excused from jury service.2 In1872, a Supreme Court opinion even invoked God and biology as the basis for excluding women fromcourt proceedings. 23 Stereotypes about women "as the center of home and family life, 24 persisted up untilthe 1970s.Since 1975, women have had formal equality in jury service, 2 remedying the past discriminationthat the Court referred to in J.E.B.. Under substantive equality theory, past discrimination would supportan affirmative action program based on gender for jury service to eliminate the effects of the previously19 114 S. Ct. at 1432 (O'Connor, J., concurring).20 See West, supra note 10, at 58.21 See ELIZABETH WOLGAST, EQUALITY AND THE RIGHTS OF WOMEN (1980). Women's "right to substantive equality conflicts withtheir right to formal equality." Frances Olsen, Statutory Rape: A Feminist Critique of Rape Analysis, 63 TEX. L. REv.387 (1984) (reprinted in FEMINIST LEGAL THEORY: FOUNDATIONS 487 (D. Kelly Weisberg, ed. 1993)).22 114 S. Ct. at 1423.23 "The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of theoccupations of civil life... The paramount destiny and mission of woman [sic] are to fulfil the noble and benign offices ofwife and mother. This is the law of the Creator." Bradwell v. State, 83 U.S. (16 Wall.) 130, 141 (1872) (concurring24 opinion).25 Hoyt v. Florida, 368 U.S. 57, 62 (1961).Taylor v. Louisiana, 419 U.S. 522 (1975) (prohibiting restrictions on jury service).CIRCLES 1995 Vol. IIImale-dominated jury pool. The affirmative introduction of women in the jury pool would help to ease or toreverse the history of discrimination which kept women out of jury service.To take the analysis one step further, assume that there was a history of gender discrimination injury selection -- not in jury service generally, but in the actual selection process. To allow women to be ina jury pool does not immediately put women in the jury box. Discrimination in the jury selection processcould still prevent women from actually serving on juries. Substantive equality theory dictates the use ofaffirmative measures to assure women, rather than men, a place in the jury box. For instance, if there wasa venire of impartial men and impartial women26 for a trial of a male rapist, evidence of past discriminationagainst women in jury selection would justify a jury comprised of all women.The past discrimination against women in jury service could be remedied by giving women agreater opportunity to serve as jurors. One such remedy would be to protect only women from being struckthrough the use of a peremptory challenge regardless of the basis for the strike. Another remedy would beto allow peremptory strikes against men based on gender but not against women based on gender. Theintended result of these remedies would be to achieve a balance of genders in impartial juries.The application of substantive equality to jury selection and peremptory challenges can exist intheory only. The realities of the population of a community, the composition of a jury pool, and theunpredictable nature of impartiality and bias combine to form a formidable obstacle to equal genderrepresentation on juries under substantive equality theory. Most importantly, as the majority opinion inJE.B. emphasized, formal equality dominates current constitutional analysis to the exclusion of alternativetheories such as substantive equality-.B. Different Voice TheoryDifferent voice theory recognizes that women have been socialized in a particular way in thisculture, which results in a unique perspective upon social issues.27 The difference between the way menview the world and the way women view the world necessitates a recognition and incorporation of thisdifference into the legal system. This variation in viewpoint is ironically the exact type of difference thatJustice Blackmun and the majority in J.E.B. would condemn and label "invidious group stereotypes."" Indirect conflict with formal equality theory, different voice theory seeks to embrace, acknowledge, and evenreinforce gender-based difference.Justice O'Connor tried unsuccessfully to incorporate different voice theory into her concurringopinion in JE.B.. She cited studies (and her ungendered intuition) which found definite attitudinaldifferences between genders on issues relevant to a jury. For instance, a study found empirically that"female jurors are somewhat more likely to convict than male jurors" in rape cases.29 Justice O'Connoralso noted that "in certain cases a person's gender and resulting life experience will be relevant to his or herview of the case."3  A tension then arises between Justice O'Connor's attempt to acknowledge the gender26 A guarantee of impartiality, objectivity, or neutrality is impossible, considering that every prospective juror is affected insome way by society, through personal experience, or by the mass media. See Lucinda M. Finley, Breaking Women'sSilence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 NOTRE DAME L. REv. 886 (1989) (reprintedin FEMmJIsT LEGAL THEORY: FOUNDATIONS 571 (D. Kelly Weisberg, ed. 1993) ).27 CAROL GILLIGAN, IN A DiRENT VOICE (1982). See also Robin West, Jurisprudence and Gender, 55 U.CHI. L. REv. 1, 14-18(1988); Ann C. Scales, The Emergence of Feminist Jurisprudence: An Essay, 95 YALE L. J. 1373, 1380-4 (1986).28 114 S. Ct. at 1427.29 114 S. Ct. at 1432 (citing R. Hastie, S. Penrod & N. Pennington, INSIDE THE JURY 140-1 (1983)).30 114 S. Ct. at 1432.CIRCLES 1995 Vol. IIIstereotypes about jurors and her vote with the majority to prohibit discrimination based on thosestereotypes.Justice O'Connor tried to appease this tension by making the prohibition on gender discriminationin peremptory challenges applicable only to state actors and not to criminal defendants and private civillitigants. However, she failed to recognize the very differences about which she purports to be concerned.The variable application of nondiscrimination in jury selection does not recognize the differences betweenmale jurors and female jurors. Under the different voice theory, it is illogical to allow a public defender torecognize gender-based attitudes and, at the same time, prohibit a state prosecutor from recognizing similargender-based attitudes. Such gender-based attitudes should be acknowledged from the outset and should beallowed as a basis for peremptory challenges by every lawyer. Therefore, the fact that female jurors aremore prone to convict in rape cases should be allowed as an explanation for a peremptory strike against afemale juror by the defense and as an explanation for a peremptory strike against a male juror by theprosecution.Unexpectedly, an analysis under different voice theory might resemble part of the reasoning byChief Justice Rehnquist and Justice Scalia in their dissents. Rather than using the framework of formalequality and paying "obeisance to the equality of the sexes,"3 1 different voice theorists might prefer to adoptChief Justice Rehnquist's view, that "[t]he two sexes differ, both biologically and, to a diminishing extent,in experience. It is not merely 'stereotyping' to say that these differences may produce a difference inoutlook which is brought to the jury room."32  Under the different voice theory, therefore, peremptorychallenges based on a prospective juror's gender, found unconstitutional under J E.B., would be acceptable.CONCLUSIONDecisions such as J.E.B. invariably spark inconsistent reactions, harsh words of criticism coupledwith celebratory words of justice done.33 There is no universal consensus on how and where equalitybetween the sexes should be realized.Formal equality theory, substantive equality theory, and different voice theory are all validframeworks for analyzing the rights and positions of men and women in America's democracy. All threetheories contribute to the developing gender history, and analysis of gender issues in light of the threetheories highlights the successes and the shortcomings of current constitutional analysis. There is no doubtthat gender issues in the future, through the use of various theoretical frameworks, will continue tounderscore the complexity of gender history and gender relations.31 114 S. Ct. at 1439 (Scalia, J., dissenting).32 114 S. Ct. at 1435 (Rehnquist, C.J., dissenting).33 Compare, for example, newspaper articles on the J.E.B. decision. See Bruce Fein, Engendering juries by PC, WASH.TIMES, Apr. 27, 1994 at A16 (the opinion "bugle[s] the currently fashionable view that men and women areinterchangeable") and George Will, Court Foolish to Bar Sex as Jury Factor, HouSTON CHRONICLE, Apr. 26, 1994 at A16(characterizing the majority opinion as "flimsy" and "foolish"). Cf. Equality in the Jury Box, ST. Louis DISPATCH, Apr. 25,1994 at 6B ("Until a nation can look beyond race, gender, age, or any factors that breed prejudice and inequality, itsresidents will not be truly free. The Supreme Court's latest ruling is a welcome step towards that goal") and FairerJuries,Male and Female, N.Y. TIMES, Apr. 23, 1994 at 24 (gender-based discrimination in peremptory challenges "offends thedignity of the potential juror and threatens an injustice to the contestants").

New Formula for Peremptory Challenges: XX=XY

https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1107&amp;context=circles

New Formula for Peremptory Challenges: XX=XY

Abstract

Similar works

Full text

Available Versions

Digital Commons @ University at Buffalo School of Law