The Batson Paradox

In Batson v. Kentucky and its progeny, the Supreme Court clearly explained how race- and gender-based peremptory challenges violate the equal protection rights of litigants and prospective jurors. Batson's defenders on the Court have insisted that race and gender are irrelevant to a juror's likely viewpoint. By taking this position, these Justices have foreclosed any chance that jury discrimination might have an impact on the reliability of verdicts. On the other hand, Batson's loudest critics have embraced the idea that race and gender are factually relevant to a juror's likely viewpoint. Yet these Justices have insisted that discriminatory peremptory challenges have negligible impact on the reliability of verdicts. Thus, the Justices who wish to find harm in a Batson violation cannot articulate it; the Justices who could find harm in a Batson violation profess not to see it. This is the paradox of Batson.