scispace - formally typeset
Search or ask a question
Journal Article

"What's so Magic[al] About Black Women?" Peremptory Challenges at the Intersection of Race and Gender

01 Jan 1996-Michigan journal of gender & law-Vol. 3, Iss: 2, pp 369-419
About: This article is published in Michigan journal of gender & law.The article was published on 1996-01-01 and is currently open access. It has received None citations till now. The article focuses on the topics: Magic (paranormal).

Content maybe subject to copyright    Report

Michigan Journal of Gender & Law Michigan Journal of Gender & Law
Volume 3 Issue 2
1996
"What's so Magic[al] About Black Women?" Peremptory "What's so Magic[al] About Black Women?" Peremptory
Challenges at the Intersection of Race and Gender Challenges at the Intersection of Race and Gender
Jean Montoya
University of San Diego School of Law
Follow this and additional works at: https://repository.law.umich.edu/mjgl
Part of the Civil Rights and Discrimination Commons, Courts Commons, Fourteenth Amendment
Commons, and the Law and Race Commons
Recommended Citation Recommended Citation
Jean Montoya,
"What's so Magic[al] About Black Women?" Peremptory Challenges at the Intersection of
Race and Gender
, 3 MICH. J. GENDER & L. 369 (1996).
Available at: https://repository.law.umich.edu/mjgl/vol3/iss2/1
This Article is brought to you for free and open access by the Journals at University of Michigan Law School
Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Gender & Law by an authorized
editor of University of Michigan Law School Scholarship Repository. For more information, please contact
mlaw.repository@umich.edu.

"WHAT'S
SO
MAGIC[AL]
ABOUT
BLACK
WOMEN?"t
PEREMPTORY
CHALLENGES
AT
THE
INTERSECTION
OF
RACE
AND
GENDER
Jean
(-Montoya*
INTRODUCTION
This
Article
addresses
the
evolving
constitutional
restraints
on
the
exercise
of
peremptory
challenges
in
jury
selection.'
Approximately
ten
years
ago,
in
the
landmark
case
of
Batson
v.
Kentucky,
2
the
United
States
Supreme
Court
held
that
the
Equal
Protection
Clause
forbids
prosecutors
to
exercise
race-based
peremptory
challenges,
at
least
when
the
excluded
jurors
and
the
defendant
share
the
same
race.
3
Over
the
next
ten
years,
the
Court
extended
Batson's
reach.
The
first
of
several
extensions
occurred
five
years
after Batson
in
Powers
v.
Ohio.
4
In that
case,
the
Court
clarified
that
a
prosecutor's
race-based
peremptory
challenges
violate
the
Equal
Protection
Clause
even
when
the
defendant
and
the
excluded
jurors
do
not
share
the
same
race.
5
The
same
year,
in
Edmonson
v.
Leesville
Concrete
Co.,
6
the
Court
held
that
race-based
peremptory
challenges
by
private
civil
litigants
also
violate
the
Equal
Protection
Clause.
7
The
following
year,
in
Georgia
v.
t
See
infra
note
158
and
accompanying
text.
*
Professor
of
Law,
University
of
San
Diego School
of
Law.
J.D.,
U.C.L.A. School
of
Law, 1985;
A.B.,
Princeton
University,
1982.
I
am
grateful
to
Deborah
Kane,
Tiffany
Kemp,
and
Christopher Hoffman
for
their
able research
assistance.
I
am
also
grateful
to
my
colleagues,
Roy
Brooks,
Mary Jo
Wiggins,
and
Fred
Zacharias,
who
commented
on
an
earlier
draft
of
the
Article.
The
Article
was
delivered
as
a
work-in-progress
at the October,
1995
Hispanic National
Bar
Association
Conven-
tion
in
Puerto
Rico
and
at the
February,
1996 Forging
Forward:
Women
of
Color
and
the
Law
Conference
at
Harvard
Law
School.
1.
A
peremptory
challenge
allows
a
litigant
to
exclude
an
otherwise
qualified
jury
panelist
from
the jury
during
jury
selection.
For
a
more
detailed
explanation
of
what the
peremptory
challenge
is
and
how
it
works,
see
infia
notes
14-24
and
accompanying
text.
2. 476
U.S.
79
(1986).
3.
Batson,
476
U.S.
at
89.
4.
499
U.S.
400
(1991).
5.
Powers,
499
U.S.
at 402.
6. 500 U.S.
614
(1991).
7.
Edmonson,
500 U.S.
at
616.

MICHIGAN
JOURNAL
OF
GENDER
&
LAW
McCollum,'
the
Court
held
that
the
Equal
Protection
Clause
precludes
even
criminal
defendants
from
exercising
race-based
peremptory
chal-
lenges.
9
Most
recently,
in
J.E.B.
v.
Alabama
ex
rel.
T.B.,'
0
the
Court
held
that
the
Equal
Protection
Clause
forbids
gender-based
peremptory
challenges.
1
1
Appellate
litigation
regarding Batson's
scope
is
likely
to
continue.
We
can
anticipate, for
instance,
that
the
Court
will
eventually
consider
whether
religion-based
peremptory
challenges
offend
the
Equal
Protec-
tion
Clause.
2
Another
area
ripe
for
the
Court's
consideration
is
the
8.
505 U.S.
42
(1992).
9.
MeCollum,
505 U.S.
at
59.
10.
114
S.
Ct.
1419
(1994).
11.
J.E.B.,
114
S.
Cr.
at
1421.
For
an
interesting critique
of
J.E.B.,
see
Roberta
K.
Flowers,
Does
It
Cost
Too
Much?
A
"Difference"
Look
at
J.E.B.
v.
Alabama,
64
FoaRHnM
L.
REv.
491
(1995)
(arguing
thatJ.E.B
should
be
read
narrowly,
as
it
failed
to
recognize
how
the
differences
between
men
and women
impact
the
deliber-
ation
process).
12.
Legal
commentators
have
conduded
that
Batson
applies
to and
forbids
religion-
based
peremptory
challenges.
See
Barbara
D.
Underwood,
Ending
Race
Discrimina-
tion
in
jury
Selection:
Whose
Right
Is It,
Anyway?
92
CoLum.
L.
Rnv.
725,
764-66
(1992);
Angela
J.
Mason,
Note, Discrimination
Based
on Religious
Affiliation:
Another
Nail
in
the Peremptory
Challenge's
Coffin?
29
GA.
L.
REv.
493,
524-25,
536-37
(1995).
But
see
J.
Suzanne
Bell
Chambers,
Note,
Applying
the Break:
Religion
and
the Peremptory
Challenge,
70
IND.
L.J.
569, 570,
593-601,
601-12
(1995)
(distin-
guishing
religion
from
race
and
gender
and
citing
practical
concerns).
In
contrast,
state
courts
generally
have
concluded
that
religion-based
peremptory
challenges
do
not
violate
Batson.
State
v.
Davis,
No.
C7-92-1037,
1993
WL
593,
at
*1 (Minn.
Ct.
App.
Jan.
5,
1993),
aff'd,
504
N.W.2d
767
(Minn.
1993),
and
cert.
denied,
114
S.
Ct.
2120
(1994);
State
v. Lundgren,
Nos.
90-L-15-140,
91-L-036,
1993
WL 346444,
at
*39
(Ohio
Ct.
App.
Sept.
14,
1993),
ajffd,
653
N.E.2d
304
(Ohio
1995),
and
cert.
denied,
116
S.
Ct.
1276
(1996);
Casarez
v.
State,
No.
1114-
93, 1995
Tex.
Crim.
App.
LEXIS
132,
at
*14
(Dec.
13,
1995)
(reasoning
that
"it is
permissible
to
discriminate
against
prospective
jurors
on account
of
their
beliefs"
and
that
"discrimination
on
the
basis
of
religion
is
discrimination
on
the
basis
of
belief').
However,
some
state
courts
have observed
that
their
state
constitutions
forbid
religion-based
peremptory
challenges.
E.g.,
People
v.
Wheeler,
583
P.2d
748,
761-62
(Cal.
1978);
Stare
v.
Levinson,
795
P.2d
845,
849
(Haw.
1990);
Common-
wealth
v.
Soares,
387
N.E.2d
499,
515
&
n.29,
516
n.33
(Mass.
1979), cert.
denied,
444
U.S.
881
(1979); People
v.
Kagan,
420
N.Y.S.2d
987, 990
(N.Y.
App.
Div.
1979).
J.E.B.
restricts
the
Batson
rule
of
nondiscrimination
in
jury
selection
to
classifi-
cations
subject
to
strict
and
heightened scrutiny.
J.E.B.,
114
S.
Ct.
at
1429
(noting
that
parties
may
use
their
peremptory
challenges
to
exclude
any
group
normally
subject
to
"rational
basis"
review).
In
Larson
v.
Valente,
456
U.S.
228
(1982),
the
Court,
applying
the
First
Amendment,
subjected
religion-based
discrimination
to
strict scrutiny.
Larson,
456
U.S.
at
244-46.
It
arguably
follows
that
religion-based
peremptory
challenges
offend
Batson.
Mason,
supra,
at
522.
Indeed,
Justice
Scalia
[Vol.
3:369

1996]
PEREMPTORY
CHALLENGES RE
RACE
AND
GENDER
371
exercise
of
peremptories
that
can
be conceptualized
as
challenges
based
on the
intersection
of
race
and
gender-challenges
based
on
intersectionality.
Such
challenges
purposely
exclude
jurors
of
a
particular
race
and
a
particular
gender,
for
example,
African
American
women
or
Latino
men.
This
Article
explores
Batson's
future,
and in
particular,
the
exten-
sion
of
Batson
to
claims
of
intersectional
discrimination
in
jury
selec-
tion.
Part
I
examines
the peremptory
challenge
as
modified
by
Batson
and
its
progeny.
The
discussion
confronts
the
assertions
of
Batson
critics
and
relies
in
part on
original
empirical
work,
a survey
of
trial
lawyers
regarding
their
impressions
of
the
pre-
and
post-Batson
peremptory
challenge
and
Batson's
burden
on
the
courts.
The
results
of
the
survey
indicate
that
the peremptory
challenge
retains
its
vitality
despite
the
evolving
constitutional
restraints
on
its
exercise.
The
results
of
the
survey
also
indicate
that
Batson procedures
are
not
consuming
an
exces-
sive
amount
of
court
time.
With
this
backdrop
set,'"
Part
II
explores
the
appropriateness
of
extending
Batson
to
intersectional
discrimination
in
jury
selection
and the
likely
impact
of
that
extension
on the
peremp-
tory
challenge
and
the
courts.
The
Article
concludes
that
as
a
doctrinal
and
normative
matter
Batson
should
be
extended,
and
as
a
practical
matter
can
be
extended,
to
intersectional
discrimination
in
jury
selec-
tion
without
dire
consequences
for
the peremptory
challenge
or
the
courts.
I.
PEREMPTORY
CHALLENGES:
PRE-
AND
POST-BATsON
Peremptory
challenges
give
a
litigant the
opportunity
to
shape
the
jury
that
will
decide
the litigant's
case
at
trial. Procedures vary
from
has
assumed
that
J.E.B.
effectively
extended Batson
to
religion-based
peremptory
challenges.
J.E.B.,
114
S.
Ct.
at
1438
(Scalia,
J.,
dissenting).
In
Davis
v.
Minnesota,
114
S.
Ct.
2120
(1994), however,
the
United
States
Supreme
Court
denied
certiorari
in
a
case
raising
religion-based
peremptory
chal-
lenges.
Davis,
114
S.
Ct.
at 2120.
In
that
case,
the petitioner,
an
African
American,
argued
that
the
prosecutor's
race-neutral
reason
for
striking
a black
juror-that
the
juror
was
a
Jehovah's
Wimess-violated
the
Equal
Protection
Clause.
Davis,
114
S.
Ct.
at
2120.
Justice
Thomas,
joined
by
Justice
Scalia,
dissented
from
the
denial
of
certiorari.
Davis,
114
S.
Ct.
at
2120.
13.
A
substantially
similar
discussion
sets
the
backdrop
for
another
of
the
author's
artides about
jury
selection:
Jean
Montoya,
The
Future
of
the
Post-Batson
Peremptory
Challenge:
Voir
Dire
by
Questionnaire
and
the
"Blind"
Peremptory, 29
U.
MICH.
J.L.
RaFoum
(forthcoming
1996)
(proposing
the
reform
of
jury
selection
procedures).

MICHIGAN
JOURNAL
OF
GENDER
&
LAW
jurisdiction
to
jurisdiction,
but
generally
jury
selection
proceeds
as
follows.
A
panel
of
potential
jurors
(the
venire)
is
summoned
into
the
courtroom
for
questioning
by
the
court and
litigants
(voir
dire).
The
court
typically
inquires
into
the
general
background
of
the
jury
panel-
ists:
residential
area,
occupation,
marital
status,
and
prior jury
service.
Then
the
litigants question
the
panelists,
probing
for
any
biases
that
could
have
a
bearing
on the
case.
Following
the
examination
of
the
jury
panelists,
the
litigants
exercise
challenges
for
cause
14
by
asking
the
court
to
exclude
certain
jury
panelists
for
specific,
legally
recognized reasons.
The
grounds
for
challenges
for
cause
are
usually
statutorily
enumerated
and
often include
actual
bias
(a
jury
panelist
admits
during
questioning
that
he
or
she
cannot
be
fair
and
impartial
in
the
particular
case),'
5
implied
bias
(familial
or
business
ties
exist
between
a
jury
panelist
and
one
of
the
litigants
or
witnesses),
16
and
disqualifications
based
on
citi-
zenship,
age,
residence,
and
English
language
ability.
17
Following
the
exercise
of
unlimited
challenges
for
cause,
the
litigants
exercise
their
peremptory
challenges.
Peremptory
challenges
differ
from
challenges
for
cause
in
two
respects.
Peremptory
challenges
are
limited
in
number,"
and they
do
not
require
the litigant to
articulate
a
reason
for
excluding
a
particular
jury
panelist.
1
9
The
peremptory
challenge
serves
at
least
four
widely
recognized
purposes.
First,
the
peremptory
challenge
allows
the
litigants
to
"elimi-
nate
extremes
of
partiality"
on the
venire.'
Accordingly,
at
least
in
theory,
the
peremptory
challenge
operates
to
secure
the
litigants
a
fair
and
impartial
jury.
21
Second,
the peremptory
challenge
gives
the
parties
14.
A
challenge
for
cause
allows
a
litigant
to
exclude
a
demonstrably
biased
or
otherwise
unqualified
jury
panelist
from
the
jury
during
jury
selection.
15.
See,
e.g.,
CAR.
Civ. PRoc.
CODE
§
225(b)(1)(C)
(West
1996).
16.
See,
e.g.,
CAI.
CiV.
PROC.
CODE
§§
225(b)(1)(B),
229
(West
1996).
17.
See,
e.g.,
CAR.
Crv.
PROC.
CODE
§§
203,
225(b)(1)(A)
(West
1996).
18.
See,
e.g.,
CAI.
CIV.
PROC.
CODE
§
231
(West
1996)
(allowing
the
prosecution
and
the
defense
twenty
peremptory
challenges
each
in
cases
involving
the
possibility
of
a
life
or
death
sentence
and
ten
peremptory
challenges
each
for
other
cases).
See
also
4
WiLLIAM
BLACKSTONE,
COMMENTARIES
ON
THE
LAws
oF
ENGItND
347
(Dawsons
of
Pall
Mall
1966)
(1769)
(observing
that
peremptory
challenges
must
have
"some
reasonable
boundary"
and
noting
that
the
common
law
allowed
a
prisoner
thirty-
five
such
challenges).
19.
Swain
v.
Alabama,
380
U.S.
202,
220
(1965)
(describing
the
"essential
nature
of
the
peremptory
challenge"
as
"one
exercised
without
a
reason
stated").
20.
Swain,
380
U.S.
at 219.
21.
See
Batson,
476
U.S.
at
91
(observing
that
peremptory
challenges
"traditionally
have
been
viewed
as
one
means
of
assuring
the
selection
of
a
qualified
and
unbiased
[Vol.
3:369

References
More filters
Journal ArticleDOI
TL;DR: In this article, the forms of the southern clouds at dawn on the 30th of April, 1882, and the outlines of the foam raised by an oar in the Rio Negro the night before the Quebracho uprising were reconstructed.
Abstract: knew by heart the forms of the southern clouds at dawn on the 30th of April, 1882, and could compare them in his memory with the mottled streaks on a book in Spanish binding he had only seen once and with the outlines of the foam raised by an oar in the Rio Negro the night before the Quebracho uprising. These memories were not simple ones; each visual image was linked to muscular sensations, thermal sensations, etc. He could reconstruct all his dreams, all his half-dreams. Two or three times he had reconstructed a whole day; he never hesitated, but each reconstruction had required a whole day.3

663 citations