Batson Basics: Who Does It Protect?

October 18, 2016
By Hanging Out with Carl Gunn


  • Batson clearly prohibits discrimination based on race and gender, under the Supreme Court’s own decisions.
  • Lower courts have rejected the extension of Batson to white ethnic groups such as Irish Americans and Italian Americans and have also rejected its extension to characteristics such as obesity, age, and long hair.
  • The Ninth Circuit did recently extend Batson to discrimination based on sexual orientation, and the analysis in that opinion provides a nice template for determining whether it extends to other groups.



In reflecting on topics for future posts, I thought of Batson v. Kentucky, 476 U.S. 79 (1986).  In part, that’s to contribute my thoughts – for what they’re worth – to the readers of this blog.  But in part, it’s to refresh and expand my own store of knowledge.  So this post – and the next one or two or three (unless they’re interrupted by something that needs more urgent sharing) – will be about what I’ll call “Batson basics.”  The first “basic”: What groups does Batson protect?

An initial principle to keep in mind – to be discussed in at least a little more depth in a later post – is that the people whose rights Batson seeks to protect are not just defendants but jurors as well.  Batson itself recognized this, when it stated that “[r]acial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try,” because “by denying a person participation in jury service on account of his race, the State unconstitutionally discriminate[s] against the excluded juror.”  Id. at 87.  Batson further recognized that “[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.”  Id.

So what groups are protected by Batson and what groups aren’t protected?  The discrimination Batson itself held prohibited was discrimination based on race.  The group there was African-Americans, but courts have readily extended this to Hispanics and Native Americans, see United States v. Iron Moccasin, 878 F.2d 226, 229 (8th Cir. 1989); United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir. 1989).  Courts have declined to extend Batson to white ethnic groups, such as Italian Americans or Irish Americans, on the theory that such groups haven’t, at least in recent times, been subjected to the sort of discrimination racial minorities have been subjected to.  See, e.g., United States v. Marino, 277 F.3d 11, 23 (1st Cir. 2002); Murchu v. United States, 926 F.2d 50, 55 (1st Cir. 1991); United States v. Di Pasquale, 864 F.2d 271, 277 (3d Cir. 1988).  Batson’s extension to other, non-ethnic characteristics has also been rejected.  See United States v. Santiago-Martinez, 58 F.3d 422 (9th Cir. 1995) (obesity); United States v. Pichay, 986 F.2d 1259 (9th Cir. 1993) (youth; following United States v. Crespa, 825 F.2d 538, 545 (1st Cir. 1987) and United States v. Jackson, 983 F.2d 757, 762-63 (7th Cir. 1993)).  To my great personal disappointment, discrimination against men with beards and long hair is also apparently permissible.  See Purkett v. Elem, 514 U.S. 765, 769 (1995).

Batson has been extended to discrimination based on gender, however.  See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).  Most recently, in tune with recent Supreme Court gay rights cases, the Ninth Circuit has extended Batson to discrimination based on sexual orientation.  See SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014).  This sexual orientation opinion, based on an analysis of the Supreme Court’s gender opinion, provides a template for other extensions of Batson to consider, though a relatively narrow one.  A necessary condition is that the classification must be subject to a heightened equal protection scrutiny greater than the minimal “rational basis” review to which most classifications are subject.  See SmithKline Beecham, 740 F.3d at 479-80 (holding that “[p]arties may . . . exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review” (quoting J.E.B., 511 U.S. at 143) and citing United States v. Santiago-Martinez, supra, as example).  Heightened scrutiny may or may not be enough alone; at least in the view of the Ninth Circuit in SmithKline Beecham, “J.E.B. . . . did not state definitively whether heightened scrutiny is sufficient to warrant Batson’s protection or merely necessary.”  SmithKline Beecham, 740 F.3d at 484.  What the heightened scrutiny standard combined with to carry the day in SmithKline Beecham was that (a) gays and lesbians “have been systematically excluded from the most important institutions of self-governance,” id., and (b) allowing challenges based on sexual orientation “risks perpetuating the very stereotypes that the law forbids,” id. at 486.  So at least when it’s accompanied by a history of group exclusion and pervasive stereotypes, a heightened scrutiny standard triggers Batson protection.  See SmithKline Beecham, 740 F.3d at 486 (“The history of exclusion of gays and lesbians from democratic institutions and the pervasiveness of stereotypes about the group leads us to conclude that Batson applies to peremptory strikes based on sexual orientation.”).

So there’s our first “Batson basic.”  (For me as well as you.)  More to come in following posts.