U.S. Supreme Court Batson v. Kentucky, 476 U.S.
79 (1986) Batson v. Kentucky No. 84-6263 Argued December 12,
1985 Decided April 30,
1986 476 U.S.
79 CERTIORARI TO THE SUPREME COURT OF
KENTUCKY Syllabus During the criminal trial in a Kentucky state court of
petitioner, a black man, the judge conducted voir dire examination of the jury venire and excused certain jurors for
cause. The prosecutor then used his peremptory challenges to strike
all four black persons on the venire, and a jury composed only of
white persons was selected. Defense counsel moved to discharge the
jury on the ground that the prosecutor's removal of the black
veniremen violated petitioner's rights under the Sixth and
Fourteenth Amendments to a jury drawn from a cross-section of the
community, and under the Fourteenth Amendment to equal protection
of the laws. Without expressly ruling on petitioner's request for a
hearing, the trial judge denied the motion, and the jury ultimately
convicted petitioner. Affirming the conviction, the Kentucky
Supreme Court observed that recently, in another case, it had
relied on Swain v. Alabama, 380 U.
S. 202 , and had held that a defendant alleging lack of a
fair cross-section must demonstrate systematic exclusion of a group
of jurors from the venire. Held: 1. The principle announced in Strauder v. West
Virginia, 100 U. S. 303 ,
that a State denies a black defendant equal protection when it puts
him on trial before a jury from which members of his race have been
purposefully excluded, is reaffirmed. Pp. 476 U. S.
84 -89.

															(a) A defendant has no right to a petit jury composed in whole
or in part of persons of his own race. Strauder v. West
Virginia, 100 U. S. 303 , 100 U. S. 305 .
However, the Equal Protection Clause guarantees the defendant that
the State will not exclude members of his race from the jury venire
on account of race, or on the false assumption that members of his
race as a group are not qualified to serve as jurors. By denying a
person participation in jury service on account of his race, the
State also unconstitutionally discriminates against the excluded
juror. Moreover, selection procedures that purposefully exclude
black persons from juries undermine public confidence in the
fairness of our system of justice. Pp. 476 U. S.
85 -88.

															(b) The same equal protection principles as are applied to
determine whether there is discrimination in selecting the venire
also govern the State's use of peremptory challenges to strike
individual jurors from the petit jury. Although a prosecutor
ordinarily is entitled to exercise Page 476 U. S. 80 peremptory challenges for any reason, as long as that reason is
related to his view concerning the outcome of the case to be tried,
the Equal Protection Clause forbids the prosecutor to challenge
potential jurors solely on account of their race or on the
assumption that black jurors as a group will be unable impartially
to consider the State's case against a black defendant. Pp. 476 U. S.
88 -89.

															2. The portion of Swain v. Alabama, supra, concerning
the evidentiary burden placed on a defendant who claims that he has
been denied equal protection through the State's discriminatory use
of peremptory challenges is rejected. In Swain, it was
held that a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory
challenge system as a whole was being perverted. Evidence offered
by the defendant in Swain did not meet that standard,
because it did not demonstrate the circumstances under which
prosecutors in the jurisdiction were responsible for striking black
jurors beyond the facts of the defendant's case. This evidentiary
formulation is inconsistent with equal protection standards
subsequently developed in decisions relating to selection of the
jury venire. A defendant may make a prima facie showing of
purposeful racial discrimination in selection of the venire by
relying solely on the facts concerning its selection in his case.
Pp. 476 U. S.
89 -96.

															3. A defendant may establish a prima facie case of
purposeful discrimination solely on evidence concerning the
prosecutor's exercise of peremptory challenges at the defendant's
trial. The defendant first must show that he is a member of a
cognizable racial group, and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the
defendant's race. The defendant may also rely on the fact that
peremptory challenges constitute a jury selection practice that
permits those to discriminate who are of a mind to discriminate.
Finally, the defendant must show that such facts and any other
relevant circumstances raise an inference that the prosecutor used
peremptory challenges to exclude the veniremen from the petit jury
on account of their race. Once the defendant makes a prima
facie showing, the burden shifts to the State to come forward
with a neutral explanation for challenging black jurors. The
prosecutor may not rebut a prima facie showing by stating
that he challenged the jurors on the assumption that they would be
partial to the defendant because of their shared race or by
affirming his good faith in individual selections. Pp. 476 U. S.
96 -98.

															4. While the peremptory challenge occupies an important position
in trial procedures, the above-stated principles will not undermine
the contribution that the challenge generally makes to the
administration of justice. Nor will application of such principles
create serious administrative difficulties. Pp. 476 U. S.
98 -99. Page 476 U. S. 81 5. Because the trial court here flatly rejected petitioner's
objection to the prosecutor's removal of all black persons on the
venire without requiring the prosecutor to explain his action, the
case is remanded for further proceedings. P. 476 U. S.
100 . Reversed and remanded. POWELL, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ.,
joined. WHITE, J., post, p. 476 U. S. 100 ,
and MARSHALL, J., post, p. 476 U. S. 102 ,
filed concurring opinions. STEVENS, J., filed a concurring opinion,
in which BRENNAN, J., joined, post, p. 476 U. S. 108 .
O'CONNOR, J., filed a concurring opinion, post, p. 476 U. S. 111 .
BURGER, C.J., filed a dissenting opinion, in which REHNQUIST, J.,
joined, post, p. 476 U. S. 112 .
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
joined, post, p. 476 U. S.
134 . Page 476 U. S. 82 JUSTICE POWELL delivered the opinion of the Court.

															This case requires us to reexamine that portion of Swain v.
Alabama, 380 U. S. 202 (1965), concerning the evidentiary burden placed on a criminal
defendant who claims that he has been denied equal protection
through the State's use of peremptory challenges to exclude members
of his race from the petit jury. [ Footnote 1 ] I Petitioner, a black man, was indicted in Kentucky on charges of
second-degree burglary and receipt of stolen goods. On the first
day of trial in Jefferson Circuit Court, the judge conducted voir dire examination of the venire, excused certain
jurors for cause, and permitted the parties to Page 476 U. S. 83 exercise peremptory challenges. [ Footnote 2 ] The prosecutor used his peremptory challenges
to strike all four black persons on the venire, and a jury composed
only of white persons was selected. Defense counsel moved to
discharge the jury before it was sworn on the ground that the
prosecutor's removal of the black veniremen violated petitioner's
rights under the Sixth and Fourteenth Amendments to a jury drawn
from a cross-section of the community, and under the Fourteenth
Amendment to equal protection of the laws. Counsel requested a
hearing on his motion. Without expressly ruling on the request for
a hearing, the trial judge observed that the parties were entitled
to use their peremptory challenges to "strike anybody they want
to." The judge then denied petitioner's motion, reasoning that the
cross-section requirement applies only to selection of the venire,
and not to selection of the petit jury itself.

															The jury convicted petitioner on both counts. On appeal to the
Supreme Court of Kentucky, petitioner pressed, among other claims,
the argument concerning the prosecutor's use of peremptory
challenges. Conceding that Swain v. Alabama, supra, apparently foreclosed an equal protection claim based solely on the
prosecutor's conduct in this case, petitioner urged the court to
follow decisions of other States, People v.
Wheeler, 22 Cal. 3d
258 , 583 P.2d 748 (1978); Commonwealth v. Soares, 377
Mass. 461, 387
N.E.2d 499 , cert. denied, 444 U.S. 881 (1979), and to
hold that such conduct violated his rights under the Sixth
Amendment and § 11 of the Kentucky Constitution to a jury drawn
from a cross-section of the community. Petitioner also
contended Page 476 U. S. 84 that the facts showed that the prosecutor had engaged in a
"pattern" of discriminatory challenges in this case and established
an equal protection violation under Swain. The Supreme Court of Kentucky affirmed. In a single paragraph,
the court declined petitioner's invitation to adopt the reasoning
of People v. Wheeler, supra, and Commonwealth v.
Soares, supra. The court observed that it recently had
reaffirmed its reliance on Swain, and had held that a
defendant alleging lack of a fair cross-section must demonstrate
systematic exclusion of a group of jurors from the venire. See
Commonwealth v. McFerron, 680
S.W.2d 924 (1984). We granted certiorari, 471 U.S. 1052 (1985),
and now reverse. II In Swain v. Alabama, this Court recognized that a

															"State's purposeful or deliberate denial to Negroes on account
of race of participation as jurors in the administration of justice
violates the Equal Protection Clause."

															380 U.S. at 380 U. S.
203 -204. This principle has been "consistently and
repeatedly" reaffirmed, id. at 380 U. S. 204 ,
in numerous decisions of this Court both preceding and following Swain. [ Footnote 3 ] We
reaffirm the principle today. [ Footnote 4 ] Page 476 U. S. 85 A More than a century ago, the Court decided that the State denies
a black defendant equal protection of the laws when it puts him on
trial before a jury from which members of his race have been
purposefully excluded. Strauder v. West Virginia, 100 U. S. 303 (1880). That decision laid the foundation for the Court's unceasing
efforts to eradicate racial discrimination in the procedures used
to select the venire from which individual jurors are drawn. In Strauder, the Court explained that the central concern of
the recently ratified Fourteenth Amendment was to put an end to
governmental discrimination on account of race. Id. at 100 U. S.
306 -307. Exclusion of black citizens from service as
jurors constitutes a primary example of the evil the Fourteenth
Amendment was designed to cure.

															In holding that racial discrimination in jury selection offends
the Equal Protection Clause, the Court in Strauder recognized, however, that a defendant has no right to a "petit jury
composed in whole or in part of persons of his own race." Id. at 100 U. S. 305 .
[ Footnote 5 ] "The number of our
races and nationalities stands in the way of evolution of such a
conception" of the demand of equal protection. Akins v.
Texas, 325 U. S. 398 , 325 U. S. 403 (1945). [ Footnote 6 ] But the
defendant does have the right to be Page 476 U. S. 86 tried by a jury whose members are selected pursuant to
nondiscriminatory criteria. Martin v. Texas, 200 U.
S. 316 , 200 U. S. 321 (1906); Ex parte Virginia, 100 U.
S. 339 , 100 U. S. 345 (1880). The Equal Protection Clause guarantees the defendant that
the State will not exclude members of his race from the jury venire
on account of race, Strauder, supra, at 100 U. S. 305 ,
[ Footnote 7 ] or on the false
assumption that members of his race as a group are not qualified to
serve as jurors, see Norris v. Alabama, 294 U.
S. 587 , 294 U. S. 599 (1935); Neal v. Delaware, 103 U.
S. 370 , 103 U. S. 397 (1881).

															Purposeful racial discrimination in selection of the venire
violates a defendant's right to equal protection, because it denies
him the protection that a trial by jury is intended to secure.

															"The very idea of a jury is a body . . . composed of the peers
or equals of the person whose rights it is selected or summoned to
determine; that is, of his neighbors, fellows, associates, persons
having the same legal status in society as that which he
holds." Strauder, supra, at 100 U. S. 308 ; see Carter v. Jury Comm'n of Greene County, 396 U.
S. 320 , 396 U. S. 330 (1970). The petit jury has occupied a central position in our
system of justice by safeguarding a person accused of crime against
the arbitrary exercise of power by prosecutor or judge. Duncan
v. Louisiana, 391 U. S. 145 , 391 U. S. 156 (1968). [ Footnote 8 ] Those on
the venire Page 476 U. S. 87 must be "indifferently chosen," [ Footnote 9 ] to secure the defendant's right under the
Fourteenth Amendment to "protection of life and liberty against
race or color prejudice." Strauder, supra, at 100 U. S.
309 .

															Racial discrimination in selection of jurors harms not only the
accused whose life or liberty they are summoned to try. Competence
to serve as a juror ultimately depends on an assessment of
individual qualifications and ability impartially to consider
evidence presented at a trial. See Thiel v. Southern Pacific
Co., 328 U. S. 217 , 328 U. S.
223 -224 (1946). A person's race simply "is unrelated to
his fitness as a juror." Id. at 328 U. S. 227 (Frankfurter, J., dissenting). As long ago as Strauder, therefore, the Court recognized that, by denying a person
participation in jury service on account of his race, the State
unconstitutionally discriminated against the excluded juror. 100
U.S. at 100 U. S. 308 ; see Carter v. Jury Comm'n of Greene County, supra, at 396 U. S.
329 -330; Neal v. Delaware, supra, at 103 U. S.
386 .

															The harm from discriminatory jury selection extends beyond that
inflicted on the defendant and the excluded juror to touch the
entire community. Selection procedures that purposefully exclude
black persons from juries undermine public confidence in the
fairness of our system of justice. See Ballard v. United
States, 329 U. S. 187 , 329 U. S. 195 (1946); McCray v. New York, 461 U.S. 961, 968 (1983)
(MARSHALL, J., dissenting from denial of certiorari).
Discrimination within the Page 476 U. S. 88 judicial system is most pernicious because it is

															"a stimulant to that race prejudice which is an impediment to
securing to [black citizens] that equal justice which the law aims
to secure to all others." Strauder, 100 U.S. at 100 U. S.
308 . B In Strauder, the Court invalidated a state statute that
provided that only white men could serve as jurors. Id. at 100 U. S. 305 .
We can be confident that no State now has such a law. The
Constitution requires, however, that we look beyond the face of the
statute defining juror qualifications, and also consider challenged
selection practices to afford "protection against action of the
State through its administrative officers in effecting the
prohibited discrimination." Norris v. Alabama, supra, at 294 U. S. 589 ; see Hernandez v. Texas, 347 U. S. 475 , 347 U. S.
478 -479 (1954); Ex parte Virginia, supra, at 100 U. S.
346 -347. Thus, the Court has found a denial of equal
protection where the procedures implementing a neutral statute
operated to exclude persons from the venire on racial grounds,
[ Footnote 10 ] and has made
clear that the Constitution prohibits all forms of purposeful
racial discrimination in selection of jurors. [ Footnote 11 ] While decisions of this Court have
been concerned largely with discrimination during selection of the
venire, the principles announced there also forbid discrimination
on account of race in selection of the petit jury. Since the
Fourteenth Amendment protects an accused throughout the proceedings
bringing him to justice, Hill v. Texas, 316 U.
S. 400 , 316 U. S. 406 (1942), the State may not draw up its jury lists pursuant to
neutral procedures, but then resort to discrimination at "other
stages in the selection process," Avery v. Georgia, 345 U. S. 559 , 345 U. S. 562 (1953); see McCray v. New York, supra, at 462 U. S. 965 ,
968 Page 476 U. S. 89 (MARSHALL, J., dissenting from denial of certiorari); see
also Alexander v. Louisiana, 405 U. S. 625 , 405 U. S. 632 (1972).

															Accordingly, the component of the jury selection process at
issue here, the State's privilege to strike individual jurors
through peremptory challenges, is subject to the commands of the
Equal Protection Clause. [ Footnote 12 ] Although a prosecutor ordinarily is entitled
to exercise permitted peremptory challenges "for any reason at all,
as long as that reason is related to his view concerning the
outcome" of the case to be tried, United States v.
Robinson, 421 F.
Supp. 467 , 473 (Conn.1976), mandamus granted sub nom.
United States v. Newman, 549 F.2d 240 (CA2 1977), the Equal
Protection Clause forbids the prosecutor to challenge potential
jurors solely on account of their race or on the assumption that
black jurors as a group will be unable impartially to consider the
State's case against a black defendant. III The principles announced in Strauder never have been
questioned in any subsequent decision of this Court. Page 476 U. S. 90 Rather, the Court has been called upon repeatedly to review the
application of those principles to particular facts. [ Footnote 13 ] A recurring question in
these cases, as in any case alleging a violation of the Equal
Protection Clause, was whether the defendant had met his burden of
proving purposeful discrimination on the part of the State. Whitus v. Georgia, 385 U. S. 545 , 550
(1967); Hernandez v. Texas, supra at 347 U. S.
478 -481; Akins v. Texas, 325 U.S. at 326 U. S.
403 -404; Martin v. Texas, 200 U.
S. 316 (1906). That question also was at the heart of
the portion of Swain v. Alabama we reexamine today.
[ Footnote 14 ] A Swain required the Court to decide, among other issues,
whether a black defendant was denied equal protection by the
State's exercise of peremptory challenges to exclude members of his
race from the petit jury. 380 U.S. at 380 U. S.
209 -210. The record in Swain showed that the
prosecutor Page 476 U. S. 91 had used the State's peremptory challenges to strike the six
black persons included on the petit jury venire. Id. at 380 U. S. 210 .
While rejecting the defendant's claim for failure to prove
purposeful discrimination, the Court nonetheless indicated that the
Equal Protection Clause placed some limits on the State's exercise
of peremptory challenges. Id. at 380 U. S.
222 -224.

															The Court sought to accommodate the prosecutor's historical
privilege of peremptory challenge free of judicial control, id. at 380 U. S.
214 -220, and the constitutional prohibition on exclusion
of persons from jury service on account of race, id. at 380 U. S.
222 -224. While the Constitution does not confer a right
to peremptory challenges, id. at 380 U. S. 219 (citing Stilson v. United States, 250 U.
S. 583 , 250 U. S. 586 (1919)), those challenges traditionally have been viewed as one
means of assuring the selection of a qualified and unbiased jury,
380 U.S. at 380 U. S. 219 .
[ Footnote 15 ] To preserve
the peremptory nature of the prosecutor's challenge, the Court in Swain declined to scrutinize his actions in a particular
case by relying on a presumption that he properly exercised the
State's challenges. Id. at 380 U. S.
221 -222.

															The Court went on to observe, however, that a State may not
exercise its challenges in contravention of the Equal Protection
Clause. It was impermissible for a prosecutor to use his challenges
to exclude blacks from the jury "for reasons wholly unrelated to
the outcome of the particular case on trial," or to deny to blacks
"the same right and opportunity to participate in the
administration of justice enjoyed by the white population." Id. at 380 U. S. 224 .
Accordingly, a black defendant could make out a prima
facie case of purposeful discrimination on proof that the
peremptory challenge system was "being perverted" in that manner. Ibid. For example, an inference of purposeful
discrimination would be raised on evidence that a prosecutor,

															"in case after case, whatever the Page 476 U. S. 92 circumstances, whatever the crime and whoever the defendant or
the victim may be, is responsible for the removal of Negroes who
have been selected as qualified jurors by the jury commissioners
and who have survived challenges for cause, with the result that no
Negroes ever serve on petit juries." Id. at 380 U. S. 223 .
Evidence offered by the defendant in Swain did not meet
that standard. While the defendant showed that prosecutors in the
jurisdiction had exercised their strikes to exclude blacks from the
jury, he offered no proof of the circumstances under which
prosecutors were responsible for striking black jurors beyond the
facts of his own case. Id. at 380 U. S.
224 -228.

															A number of lower courts following the teaching of Swain reasoned that proof of repeated striking of blacks
over a number of cases was necessary to establish a violation of
the Equal Protection Clause. [ Footnote 16 ] Since this interpretation of Swain has placed on defendants a crippling burden of proof, [ Footnote 17 ] prosecutors' peremptory
challenges are now largely immune Page 476 U. S. 93 from constitutional scrutiny. For reasons that follow, we reject
this evidentiary formulation as inconsistent with standards that
have been developed since Swain for assessing a prima
facie case under the Equal Protection Clause. B Since the decision in Swain, we have explained that our
cases concerning selection of the venire reflect the general equal
protection principle that the "invidious quality" of governmental
action claimed to be racially discriminatory "must ultimately be
traced to a racially discriminatory purpose." Washington v.
Davis, 426 U. S. 229 , 426 U. S. 240 (1976). As in any equal protection case, the "burden is, of
course," on the defendant who alleges discriminatory selection of
the venire "to prove the existence of purposeful discrimination." Whitus v. Georgia, 385 U.S. at 385 U. S. 550 (citing Tarrance v. Florida, 188 U.
S. 519 (1903)). In deciding if the defendant has carried
his burden of persuasion, a court must undertake "a sensitive
inquiry into such circumstantial and direct evidence of intent as
may be available." Arlington Heights v. Metropolitan Housing
Development Corp., 429 U. S. 252 , 429 U. S. 266 (1977). Circumstantial evidence of invidious intent may include
proof of disproportionate impact. Washington v. Davis, 426
U.S. at 426 U. S. 242 .
We have observed that, under some circumstances, proof of
discriminatory impact

															"may, for all practical purposes, demonstrate
unconstitutionality because, in various circumstances, the
discrimination is very difficult to explain on nonracial
grounds." Ibid. For example, "total or seriously disproportionate
exclusion of Negroes from jury venires," ibid., "is itself
such an unequal application of the law . . . as to show
intentional discrimination,'" id. at 426 U. S. 241 (quoting Akins v. Texas, 325 U.S. at 325 U. S.
404 ). Moreover, since Swain, we have recognized that a black
defendant alleging that members of his race have been impermissibly
excluded from the venire may make out a prima Page 476 U. S. 94 facie case of purposeful discrimination by showing that
the totality of the relevant facts gives rise to an inference of
discriminatory purpose. Washington v. Davis, supra, at 426 U. S.
239 -242. Once the defendant makes the requisite showing,
the burden shifts to the State to explain adequately the racial
exclusion. Alexander v. Louisiana, supra, at 405 U. S. 632 .
The State cannot meet this burden on mere general assertions that
its officials did not discriminate, or that they properly performed
their official duties. See Alexander v. Louisiana, supra, at 632; Jones v. Georgia, 389 U. S.
24 , 25 (1967). Rather, the State must demonstrate that
"permissible racially neutral selection criteria and procedures
have produced the monochromatic result." Alexander v.
Louisiana, supra, at 405 U. S. 632 ; see Washington v. Davis, supra, at 426 U. S. 241 .
[ Footnote 18 ]

															The showing necessary to establish a prima facie case
of purposeful discrimination in selection of the venire may be
discerned in this Court's decisions. E.g., Castaneda v.
Partida, 430 U. S. 482 , 430 U. S.
494 -495 (1977); Alexander v. Louisiana, supra, at 405 U. S.
631 -632. The defendant initially must show that he is a
member of a racial group capable of being singled out for different
treatment. Castaneda v. Partida, supra, at 430 U. S. 494 .
In combination with that evidence, a defendant may then make a prima facie case by proving that, in the particular
jurisdiction, members of his race have not been summoned for jury
service over an extended period of time. Id. at 430 U. S. 494 .
Proof of systematic exclusion from the venire raises an inference
of purposeful discrimination, because the "result bespeaks
discrimination." Hernandez v. Texas, 347 Page 476 U. S. 95 U.S. at 347 U. S. 482 ; see Arlington Heights v. Metropolitan Housing Development
Corp., supra, at 429 U. S.
266 .

															Since the ultimate issue is whether the State has discriminated
in selecting the defendant's venire, however, the defendant may
establish a prima facie case "in other ways than by
evidence of long-continued unexplained absence" of members of his
race "from many panels." Cassell v. Texas, 339 U.
S. 282 , 339 U. S. 290 (1950) (plurality opinion). In cases involving the venire, this
Court has found a prima facie case on proof that members
of the defendant's race were substantially underrepresented on the
venire from which his jury was drawn, and that the venire was
selected under a practice providing "the opportunity for
discrimination." Whitus v. Georgia, supra, at 385 U. S. 552 ; see Castaneda v. Partida, supra, at 430 U. S. 494 ; Washington v. Davis, supra, at 426 U. S. 241 ; Alexander v. Louisiana, supra, at 405 U. S.
629 -631. This combination of factors raises the
necessary inference of purposeful discrimination because the Court
has declined to attribute to chance the absence of black citizens
on a particular jury array where the selection mechanism is subject
to abuse. When circumstances suggest the need, the trial court must
undertake a "factual inquiry" that "takes into account all possible
explanatory factors" in the particular case. Alexander v.
Louisiana, supra, at 405 U. S.
630 .

															Thus, since the decision in Swain, this Court has
recognized that a defendant may make a prima facie showing
of purposeful racial discrimination in selection of the venire by
relying solely on the facts concerning its selection in his
case. These decisions are in accordance with the proposition,
articulated in Arlington Heights v. Metropolitan Housing
Development Corp., that "a consistent pattern of official
racial discrimination" is not "a necessary predicate to a violation
of the Equal Protection Clause. A single invidiously discriminatory
governmental act" is not "immunized by the absence of such
discrimination in the making of other comparable decisions." 429
U.S. at 429 U. S. 266 ,
n. 14. For evidentiary requirements Page 476 U. S. 96 to dictate that "several must suffer discrimination" before one
could object, McCray v. New York, 461 U.S. at 965
(MARSHALL, J., dissenting from denial of certiorari), would be
inconsistent with the promise of equal protection to all. [ Footnote 19 ] C The standards for assessing a prima facie case in the
context of discriminatory selection of the venire have been fully
articulated since Swain. See Castaneda v. Partida,
supra, at 430 U. S.
494 -495; Washington v. Davis, 426 U.S. at 426 U. S.
241 -242; Alexander v. Louisiana, supra, at 405 U. S.
629 -631. These principles support our conclusion that a
defendant may establish a prima facie case of purposeful
discrimination in selection of the petit jury solely on evidence
concerning the prosecutor's exercise of peremptory challenges at
the defendant's trial. To establish such a case, the defendant
first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, at 430 U. S. 494 ,
and that the prosecutor has exercised peremptory challenges to
remove from the venire members of the defendant's race. Second, the
defendant is entitled to rely on the fact, as to which there can be
no dispute, that peremptory challenges constitute a jury selection
practice that permits "those to discriminate who are of a mind to
discriminate." Avery v. Georgia, 345 U.S. at 345 U. S. 562 .
Finally, the defendant must show that these facts and any other
relevant circumstances raise an inference that the prosecutor used
that practice to exclude the veniremen from the petit jury on
account of their race. This combination of factors in the
empaneling of the petit jury, as in the selection of the venire,
raises the necessary inference of purposeful discrimination.

															In deciding whether the defendant has made the requisite
showing, the trial court should consider all relevant
circumstances. Page 476 U. S. 97 For example, a "pattern" of strikes against black jurors
included in the particular venire might give rise to an inference
of discrimination. Similarly, the prosecutor's questions and
statements during voir dire examination and in exercising
his challenges may support or refute an inference of discriminatory
purpose. These examples are merely illustrative. We have confidence
that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the
prosecutor's use of peremptory challenges creates a prima
facie case of discrimination against black jurors.

															Once the defendant makes a prima facie showing, the
burden shifts to the State to come forward with a neutral
explanation for challenging black jurors. Though this requirement
imposes a limitation in some cases on the full peremptory character
of the historic challenge, we emphasize that the prosecutor's
explanation need not rise to the level justifying exercise of a
challenge for cause. See McCray v. Abrams, 750 F.2d at
1132; Booker v. Jabe, 775 F.2d 762, 773 (CA6 1985), cert. pending, No. 85-1028. But the prosecutor may not
rebut the defendant's prima facie case of discrimination
by stating merely that he challenged jurors of the defendant's race
on the assumption -- or his intuitive judgment -- that they would
be partial to the defendant because of their shared race. Cf.
Norris v. Alabama, 294 U.S. at 294 U. S.
598 -599; see Thompson v. United States, 469 U. S. 1024 ,
1026 (1984) (BRENNAN, J., dissenting from denial of certiorari).
Just as the Equal Protection Clause forbids the States to exclude
black persons from the venire on the assumption that blacks as a
group are unqualified to serve as jurors, supra, at 476 U. S. 86 , so
it forbids the States to strike black veniremen on the assumption
that they will be biased in a particular case simply because the
defendant is black. The core guarantee of equal protection,
ensuring citizens that their State will not discriminate on account
of race, would be meaningless were we to approve the exclusion of
jurors on the basis of Page 476 U. S. 98 such assumptions, which arise solely from the jurors' race. Nor
may the prosecutor rebut the defendant's case merely by denying
that he had a discriminatory motive or "affirm[ing] [his] good
faith in making individual selections." Alexander v.
Louisiana, 405 U.S. at 405 U. S. 632 .
If these general assertions were accepted as rebutting a
defendant's prima facie case, the Equal Protection Clause
"would be but a vain and illusory requirement." Norris v.
Alabama, supra, at 294 U. S. 598 .
The prosecutor therefore must articulate a neutral explanation
related to the particular case to be tried. [ Footnote 20 ] The trial court then will have the
duty to determine if the defendant has established purposeful
discrimination. [ Footnote
21 ] IV The State contends that our holding will eviscerate the fair
trial values served by the peremptory challenge. Conceding that the
Constitution does not guarantee a right to peremptory challenges
and that Swain did state that their use ultimately is
subject to the strictures of equal protection, the State argues
that the privilege of unfettered exercise of the challenge is of
vital importance to the criminal justice system.

															While we recognize, of course, that the peremptory challenge
occupies an important position in our trial procedures, we do not
agree that our decision today will undermine the Page 476 U. S. 99 contribution the challenge generally makes to the administration
of justice. The reality of practice, amply reflected in many state
and federal court opinions, shows that the challenge may be, and
unfortunately at times has been, used to discriminate against black
jurors. By requiring trial courts to be sensitive to the racially
discriminatory use of peremptory challenges, our decision enforces
the mandate of equal protection and furthers the ends of justice.
[ Footnote 22 ] In view of the
heterogeneous population of our Nation, public respect for our
criminal justice system and the rule of law will be strengthened if
we ensure that no citizen is disqualified from jury service because
of his race.

															Nor are we persuaded by the State's suggestion that our holding
will create serious administrative difficulties. In those States
applying a version of the evidentiary standard we recognize today,
courts have not experienced serious administrative burdens,
[ Footnote 23 ] and the
peremptory challenge system has survived. We decline, however, to
formulate particular procedures to be followed upon a defendant's
timely objection to a prosecutor's challenges. [ Footnote 24 ] Page 476 U. S. 100 V In this case, petitioner made a timely objection to the
prosecutor's removal of all black persons on the venire. Because
the trial court flatly rejected the objection without requiring the
prosecutor to give an explanation for his action, we remand this
case for further proceedings. If the trial court decides that the
facts establish, prima facie, purposeful discrimination
and the prosecutor does not come forward with a neutral explanation
for his action, our precedents require that petitioner's conviction
be reversed. E.g., Whitus v. Georgia, 385 U.S. at 385 U. S.
549 -550; Hernandez v. Texas, 347 U.S. at 347 U. S. 482 ; Patton v. Mississippi, 332 U.S. at
469 . [ Footnote 25 ] It is so ordered. [ Footnote 1 ]

															Following the lead of a number of state courts construing their
State's Constitution, two Federal Courts of Appeals recently have
accepted the view that peremptory challenges used to strike black
jurors in a particular case may violate the Sixth Amendment. Booker v. Jabe, 775 F.2d 762 (CA6 1986), cert.
pending, No. 85-1028; McCray v. Abrams, 750 F.2d 1113
(CA2 1984), cert. pending, No. 84-1426. See People v.
Wheeler, 22 Cal. 3d
258 , 583 P.2d 748 (1978); Riley v.
State, 496
A.2d 997 , 1009-1013 (Del.1985); State v.
Neil, 457 So. 2d 481 (Fla.1984); Commonwealth v. Soares, 377 Mass. 461, 387
N.E.2d 499 , cert. denied, 444 U.S. 881 (1979). See
also State v. Crespin, 94 N. M. 486, 612 P.2d
716 (App.1980). Other Courts of Appeals have rejected that
position, adhering to the requirement that a defendant must prove
systematic exclusion of blacks from the petit jury to establish a
constitutional violation. United States v. Childress, 715
F.2d 1313 (CA8 1983) (en banc), cert. denied, 464 U.S.
1063 (1984); United States v. Whitfield, 715 F.2d 145, 147
(CA4 1983). See Beed v. State, 271 Ark. 526, 530-531, 609 S.W.2d
898 , 903 (1980); Blackwell v. State, 248 Ga. 138, 281 S.E.2d
599 , 599 -600
(1981); Gilliard v. State, 428 So.
2d 576 , 579 (Miss.), cert. denied, 464 U.
S. 867 (1983); People v. McCray, 57 N.Y.2d 542,
546-549, 443 N.E.2d 915, 916-919 (1982), cert. denied, 461
U.S. 961 (1983); State v. Lynch, 300 N.C. 534, 546-547, 268 S.E.2d
161 , 168-169 (1980). Federal Courts of Appeals also have
disagreed over the circumstances under which supervisory power may
be used to scrutinize the prosecutor's exercise of peremptory
challenges to strike blacks from the venire. Compare United
States v. Leslie, 783 F.2d 541 (CA5 1986) (en banc), with
United States v. Jackson, 696 F.2d 578, 592-593 (CA8 1982), cert. denied, 460 U.S. 1073 (1983). See also United
States v. McDaniels, 379 F.
Supp. 1243 (ED La.1974).

															[ Footnote 2 ]

															The Kentucky Rules of Criminal Procedure authorize the trial
court to permit counsel to conduct voir dire examination
or to conduct the examination itself Ky.Rule Crim.Proc. 9.38. After
jurors have been excused for cause, the parties exercise their
peremptory challenges simultaneously by striking names from a list
of qualified jurors equal to the number to be seated plus the
number of allowable peremptory challenges. Rule 9.36. Since the
offense charged in this case was a felony, and an alternate juror
was called, the prosecutor was entitled to six peremptory
challenges, and defense counsel to nine. Rule 9.40.

															[ Footnote 3 ] See, e.g., Strauder West Virginia, 100 U.
S. 303 (1880); Neal v. Delaware, 103 U.
S. 370 (1881); Norris v. Alabama, 294 U.
S. 587 (1935); Hollins v. Oklahoma, 295 U. S. 394 (1935) (per curiam); Pierre v. Louisiana, 306 U.
S. 354 (1939); Patton v. Mississippi, 332 U. S. 463 (1947); Avery v. Georgia, 345 U.
S. 559 (1953); Hernandez v. Texas, 347 U.
S. 475 (1954); Whitus v. Georgia, 385 U.
S. 545 (1967); Jones v. Georgia, 389 U. S.
24 (1967) (per curiam); Carter v. Jury Comm'n of
Greene County, 396 U. S. 320 (1970); Castaneda v. Partida, 430 U.
S. 482 (1977); Rose v. Mitchell, 443 U.
S. 545 (1979); Vasquez v. Hillery, 474 U.
S. 254 (1986).

															The basic principles prohibiting exclusion of persons from
participation in jury service on account of their race "are
essentially the same for grand juries and for petit juries." Alexander v. Louisiana, 405 U. S. 625 , 405 U. S. 626 ,
n. 3 (1972); see Norris v. Alabama, supra, at 294 U. S. 589 .
These principles are reinforced by the criminal laws of the United
States. 18 U.S.C. § 243.

															[ Footnote 4 ]

															In this Court, petitioner has argued that the prosecutor's
conduct violated his rights under the Sixth and Fourteenth
Amendments to an impartial jury and to a jury drawn from a
cross-section of the community. Petitioner has framed his argument
in these terms in an apparent effort to avoid inviting the Court
directly to reconsider one of its own precedents. On the other
hand, the State has insisted that petitioner is claiming a denial
of equal protection, and that we must reconsider Swain to
find a constitutional violation on this record. We agree with the
State that resolution of petitioner's claim properly turns on
application of equal protection principles, and express no view on
the merits of any of petitioner's Sixth Amendment arguments.

															[ Footnote 5 ] See Hernandez v. Texas, supra, at 347 U. S. 482 ; Cassell v. Texas, 339 U. S. 282 , 339 U. S.
286 -287 (1950) (plurality opinion); Akins v.
Texas, 325 U. S. 398 , 325 U. S. 403 (1945); Martin v. Texas, 200 U. S. 316 , 200 U. S. 321 (1906); Neal v. Delaware, supra, at 103 U. S.
394 .

															[ Footnote 6 ]

															Similarly, though the Sixth Amendment guarantees that the petit
jury will be selected from a pool of names representing a
cross-section of the community, Taylor v. Louisiana, 419 U. S. 522 (1975), we have never held that the Sixth Amendment requires that
"petit juries actually chosen must mirror the community and reflect
the various distinctive groups in the population," id. at 419 U. S. 538 .
Indeed, it would be impossible to apply a concept of proportional
representation to the petit jury in view of the heterogeneous
nature of our society. Such impossibility is illustrated by the
Court's holding that a jury of six persons is not unconstitutional. Williams v. Florida, 399 U. S. 78 , 399 U. S.
102 -103 (1970).

															[ Footnote 7 ] See Hernandez v. Texas, supra, at 347 U. S. 482 ; Cassell v. Texas, supra, at 339 U. S. 287 ; Akins v. Texas, supra, at 325 U. S. 403 ; Neal v. Delaware, supra, at 103 U. S.
394 .

															[ Footnote 8 ] See Taylor v. Louisiana, supra, at 419 U. S. 530 ; Williams v. Florida, supra, at 399 U. S. 100 . See also Powell, Jury Trial of Crimes, 23 Wash. & Lee
L.Rev. 1 (1966).

															In Duncan v. Louisiana, decided after Swain, the Court concluded that the right to trial by jury in criminal
cases was such a fundamental feature of the American system of
justice that it was protected against state action by the Due
Process Clause of the Fourteenth Amendment. 391 U.S. at 391 U. S.
147 -158. The Court emphasized that a defendant's right
to be tried by a jury of his peers is designed "to prevent
oppression by the Government." Id. at 391 U. S. 155 , 391 U. S.
156 -157. For a jury to perform its intended function as
a check on official power, it must be a body drawn from the
community. Id. at 391 U. S. 156 ; Glasser v. United States, 315 U. S. 60 , 316 U. S. 86 -88
(1942). By compromising the representative quality of the jury,
discriminatory selection procedures make

															"juries ready weapons for officials to oppress those accused
individuals who by chance are numbered among unpopular or
inarticulate minorities." Akins v. Texas, supra, at 325 U. S. 408 (Murphy, J., dissenting).

															[ Footnote 9 ]

															W. Blackstone, Commentaries 350 (Cooley ed. 1899) (quoted in Duncan v. Louisiana, 391 U.S. at 391 U. S.
152 ).

															[ Footnote 10 ] E.g., Sims v. Georgia, 389 U.
S. 404 , 389 U. S. 407 (1967) (per curiam); Whitus v. Georgia, 385 U.S. at 385 U. S.
548 -549; Avery v. Georgia, 345 U.S. at 345 U. S.
561 .

															[ Footnote 11 ] See Norris v. Alabama, 294 U.S. at 294 U. S. 589 ; Martin v. Texas, 200 U.S. at 200 U. S. 319 ; Neal v. Delaware, 103 U.S. at 103 U. S. 394 , 103 U. S.
397 .

															[ Footnote 12 ]

															We express no views on whether the Constitution imposes any
limit on the exercise of peremptory challenges by defense
counsel.

															Nor do we express any views on the techniques used by lawyers
who seek to obtain information about the community in which a case
is to be tried, and about members of the venire from which the jury
is likely to be drawn. See generally J. Van Dyke, Jury
Selection Procedures: Our Uncertain Commitment to Representative
Panels 183-189 (1977). Prior to voir dire examination,
which serves as the basis for exercise of challenges, lawyers wish
to know as much as possible about prospective jurors, including
their age, education, employment, and economic status, so that they
can ensure selection of jurors who at least have an open mind about
the case. In some jurisdictions, where a pool of jurors serves for
a substantial period of time, see id. at 116-118, counsel
also may seek to learn which members of the pool served on juries
in other cases and the outcome of those cases. Counsel even may
employ professional investigators to interview persons who have
served on a particular petit jury. We have had no occasion to
consider particularly this practice. Of course, counsel's effort to
obtain possibly relevant information about prospective jurors is to
be distinguished from the practice at issue here.

															[ Footnote 13 ] See, e.g. Vasquez v. Hillery, 474 U.
S. 254 (1986); Rose v. Mitchell, 443 U.
S. 545 (1979); Castaneda v. Partida, 430 U. S. 482 (1977); Alexander v. Louisiana, 405 U.S. at 405 U. S.
628 -629; Whitus v. Georgia, supra, at 385 U. S.
549 -550; Swain v. Alabama, 380 U.
S. 202 , 380 U. S. 205 (1965); Coleman v. Alabama, 377 U.
S. 129 (1964); Norris v. Alabama, supra, at 294 U. S. 589 ; Neal v. Delaware, supra, at 103 U. S.
394 .

															[ Footnote 14 ]

															The decision in Swain has been the subject of extensive
commentary. Some authors have argued that the Court should
reconsider the decision. E.g., Van Dyke, supra at
166-167; Imlay, Federal Jury Reformation: Saving a Democratic
Institution, 6 Loyola (LA) L.Rev. 247, 268-270 (1973); Kuhn, Jury
Discrimination: The Next Phase, 41 S.Cal.L.Rev. 235, 283-303
(1968); Note, Rethinking Limitations on the Peremptory Challenge,
85 Colum.L.Rev. 1357 (1985); Note, Peremptory Challenge --
Systematic Exclusion of Prospective Jurors on the Basis of Race, 39
Miss.L.J. 157 (1967); Comment, Swain v. Alabama: A
Constitutional Blueprint for the Perpetuation of the All-White
Jury, 52 Va.L.Rev. 1157 (1966). See also Johnson, Black
Innocence and the White Jury, 83 Mich.L.Rev. 1611 (1985).

															On the other hand, some commentators have argued that we should
adhere to Swain. See Saltzburg & Powers,
Peremptory Challenges and the Clash Between Impartiality and Group
Representation, 41 Md.L.Rev. 337 (1982).

															[ Footnote 15 ]

															In Swain, the Court reviewed the "very old credentials"
of the peremptory challenge system, and noted the "long and widely
held belief that peremptory challenge is a necessary part of trial
by jury." 380 U.S. at 380 U. S. 219 ; see id. at 380 U. S.
212 -1219.

															[ Footnote 16 ] E.g., United Skates v. Jenkins, 701 F.2d 850, 859-860
(CA10 1983); United States v. Boykin, 679 F.2d 1240, 1245
(CA8 1982); United States v. Pearson, 448 F.2d 1207,
1213-1218 (CA5 1971); Thigpen v. State, 49 Ala. App. 233,
241, 270 So. 2d 666 , 673 (1972); Jackson v. State, 245 Ark.
331, 336, 432 S.W.2d
876 , 878 (1968); Johnson v. State, 9 Md.App. 143,
148-150, 262 A.2d 792 , 796-797 (1970); State v. Johnson, 125
N.J.Super. 438, 311 A.2d 389 (1973) (per curiam); Stote v. Shaw, 284
N.C. 366, 200 S.E.2d
585 (1973).

															[ Footnote 17 ] See McCray v. Abrams, 750 F.2d at 1120, and n. 2. The
lower courts have noted the practical difficulties of proving that
the State systematically has exercised peremptory challenges to
exclude blacks from the jury on account of race. As the Court of
Appeals for the Fifth Circuit observed, the defendant would have to
investigate, over a number of cases, the race of persons tried in
the particular jurisdiction, the racial composition of the venire
and petit jury, and the manner in which both parties exercised
their peremptory challenges. United States v. Pearson, 448
F.2d 1207, 1217 (1971). The court believed this burden to be "most
difficult" to meet. Ibid. In jurisdictions where court
records do not reflect the jurors' race and where voir
dire proceedings are not transcribed, the burden would be
insurmountable. See People v. Wheeler, 22 Cal. 3d at
285-286, 583 P.2d at 767-768.

															[ Footnote 18 ]

															Our decisions concerning "disparate treatment" under Title VII
of the Civil Rights Act of 1964 have explained the operation of prima facie burden of proof rules. See McDonnell
Douglas Corp. v. Green, 411 U. S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981); United States Postal Service Board of Governors v.
Aikens, 460 U. S. 711 (1983). The party alleging that he has been the victim of
intentional discrimination carries the ultimate burden of
persuasion. Texas Dept. of Community Affairs v. Burdine,
supra, at 252-256.

															[ Footnote 19 ]

															Decisions under Title VII also recognize that a person claiming
that he has been the victim of intentional discrimination may make
out a prima facie case by relying solely on the facts
concerning the alleged discrimination against him. See cases in n 18, supra. [ Footnote 20 ]

															The Court of Appeals for the Second Circuit observed in McCray v. Abrams, 750 F.2d at 1132, that "[t]here are any
number of bases" on which a prosecutor reasonably may believe that
it is desirable to strike a juror who is not excusable for cause.
As we explained in another context, however, the prosecutor must
give a "clear and reasonably specific" explanation of his
"legitimate reasons" for exercising the challenges. Texas Dept.
of Community Affairs v. Burdine, 450 U.S. at 450 U. S.
258 .

															[ Footnote 21 ]

															In a recent Title VII sex discrimination case, we stated that "a
finding of intentional discrimination is a finding of fact"
entitled to appropriate deference by a reviewing court. Anderson v. Bessemer City, 470 U.
S. 564 , 470 U. S. 573 (1986). Since the trial judge's findings in the context under
consideration here largely will turn on evaluation of credibility,
a reviewing court ordinarily should give those findings great
deference. Id. at 470 U. S. 575 -576.

															[ Footnote 22 ]

															While we respect the views expressed in JUSTICE MARSHALL's
concurring opinion concerning prosecutorial and judicial
enforcement of our holding today, we do not share them. The
standard we adopt under the Federal Constitution is designed to
ensure that a State does not use peremptory challenges to strike
any black juror because of his race. We have no reason to believe
that prosecutors will not fulfill their duty to exercise their
challenges only for legitimate purposes. Certainly, this Court may
assume that trial judges, in supervising voir dire in
light of our decision today, will be alert to identify a prima
facie case of purposeful discrimination. Nor do we think that
this historic trial practice, which long has served the selection
of an impartial jury, should be abolished because of an
apprehension that prosecutors and trial judges will not perform
conscientiously their respective duties under the Constitution.

															[ Footnote 23 ]

															For example, in People v. Hall, 35 Cal. 3d
161 , 672 P.2d 854 (1983), the California Supreme Court found that there was no
evidence to show that procedures implementing its version of this
standard, imposed five years earlier, were burdensome for trial
judges.

															[ Footnote 24 ]

															In light of the variety of jury selection practices followed in
our state and federal trial courts, we make no attempt to instruct
these courts how best to implement our holding today. For the same
reason, we express no view on whether it is more appropriate in a
particular case, upon a finding of discrimination against black
jurors, for the trial court to discharge the venire and select a
new jury from a panel not previously associated with the case, see Booker v. Jabe, 775 F.2d at 773, or to disallow the
discriminatory challenges and resume selection with the improperly
challenged jurors reinstated on the venire, see United States
v. Robinson, 421 F.
Supp. 467 , 474 (Conn.1976), mandamus granted sub nom.
United States v. Newman, 549 F.2d 240 (CA2 1977).

															[ Footnote 25 ]

															To the extent that anything in Swain Alabama, 380 U. S. 202 (1965), is contrary to the principles we articulate today, that
decision is overruled.

															JUSTICE WHITE, concurring.

															The Court overturns the principal holding in Swain v.
Alabama, 380 U. S. 202 (1965), that the Constitution does not require in any given case an
inquiry into the prosecutor's reasons for using his peremptory
challenges to strike blacks from the petit jury panel in the
criminal trial of a black defendant, and that, in such a case, it
will be presumed that the prosecutor is acting for legitimate
trial-related reasons. The Court now rules that such use of
peremptory challenges in a given case may, but does not
necessarily, raise an inference, which the prosecutor carries the
burden of refuting, Page 476 U. S. 101 that his strikes were based on the belief that no black citizen
could be a satisfactory juror or fairly try a black defendant.

															I agree that, to this extent, Swain should be
overruled. I do so because Swain itself indicated that the
presumption of legitimacy with respect to the striking of black
venire persons could be overcome by evidence that, over a period of
time, the prosecution had consistently excluded blacks from petit
juries. * This should have
warned prosecutors that using peremptories to exclude blacks on the
assumption that no black juror could fairly judge a black defendant
would violate the Equal Protection Clause.

															It appears, however, that the practice of peremptorily
eliminating blacks from petit juries in cases with black defendants
remains widespread, so much so that I agree that an opportunity to
inquire should be afforded when this occurs. If the defendant
objects, the judge, in whom the Court puts considerable trust, may
determine that the prosecution must respond. If not persuaded
otherwise, the judge may conclude that the challenges rest on the
belief that blacks could not fairly try a black defendant. This, in
effect, attributes to the prosecutor the view that all blacks
should be eliminated from the entire venire. Hence, the Court's
prior cases dealing with jury venires, rather than petit juries,
are not without relevance in this case.

															The Court emphasizes that using peremptory challenges to strike
blacks does not end the inquiry; it is not unconstitutional,
without more, to strike one or more blacks from the jury. The judge
may not require the prosecutor to respond at all. If he does, the
prosecutor, who in most cases has had a chance to voir
dire the prospective jurors, will have an opportunity to give
trial-related reasons for his strikes -- Page 476 U. S. 102 some satisfactory ground other than the belief that black jurors
should not be allowed to judge a black defendant.

															Much litigation will be required to spell out the contours of
the Court's equal protection holding today, and the significant
effect it will have on the conduct of criminal trials cannot be
gainsaid. But I agree with the Court that the time has come to rule
as it has, and I join its opinion and judgment.

															I would, however, adhere to the rule announced in DeStefano
v. Woods, 392 U. S. 631 (1968), that Duncan v. Louisiana, 391 U.
S. 145 (1968), which held that the States cannot deny
jury trials in serious criminal cases, did not require reversal of
a state conviction for failure to grant a jury trial where the
trial began prior to the date of the announcement in the Duncan decision. The same result was reached in DeStefano with respect to the retroactivity of Bloom
v. Illinois, 391 U. S. 194 (1968), as it was in Daniel v. Louisiana, 420 U. S.
31 (1976) (per curiam), with respect to the decision in Taylor v. Louisiana, 419 U. S. 522 (1975), holding that the systematic exclusion of women from jury
panels violated the Sixth and Fourteenth Amendments.

															* Nor would it have been inconsistent with Swain for
the trial judge to invalidate peremptory challenges of blacks if
the prosecutor, in response to an objection to his strikes, stated
that he struck blacks because he believed they were not qualified
to serve as jurors, especially in the trial of a black
defendant.

															JUSTICE MARSHALL, concurring.

															I join JUSTICE POWELL's eloquent opinion for the Court, which
takes a historic step toward eliminating the shameful practice of
racial discrimination in the selection of juries. The Court's
opinion cogently explains the pernicious nature of the racially
discriminatory use of peremptory challenges, and the repugnancy of
such discrimination to the Equal Protection Clause. The Court's
opinion also ably demonstrates the inadequacy of any burden of
proof for racially discriminatory use of peremptories that requires
that "justice . . . sit supinely by" and be flouted in case after
case before a remedy is available. [ Footnote 2/1 ] I nonetheless write separately to express
my views. The decision today will not end the racial
discrimination Page 476 U. S. 103 that peremptories inject into the jury selection process. That
goal can be accomplished only by eliminating peremptory challenges
entirely. I A little over a century ago, this Court invalidated a state
statute providing that black citizens could not serve as jurors. Strauder West Virginia, 100 U. S. 303 (1880). State officials then turned to somewhat more subtle ways of
keeping blacks off jury venires. See Swain v. Alabama, 380 U. S. 202 , 380 U. S.
231 -238 (1965) (Goldberg, J., dissenting); Kuhn, Jury
Discrimination: The Next Phase, 41 S.Cal.L.Rev. 235 (1968); see
also J. Van Dyke, Jury Selection Procedures: Our Uncertain
Commitment to Representative Panels 155-157 (1977) (hereinafter Van
Dyke). Although the means used to exclude blacks have changed, the
same pernicious consequence has continued.

															Misuse of the peremptory challenge to exclude black jurors has
become both common and flagrant. Black defendants rarely have been
able to compile statistics showing the extent of that practice, but
the few cases setting out such figures are instructive. See
United States v. Carter, 528 F.2d 844, 848 (CA8 1975) (in 15
criminal cases in 1974 in the Western District of Missouri
involving black defendants, prosecutors peremptorily challenged 81%
of black jurors), cert. denied, 425 U.S. 961 (1976); United States v. McDaniels, 379
F. Supp. 1243 (ED La.1974) (in 53 criminal cases in 1972-1974
in the Eastern District of Louisiana involving black defendants,
federal prosecutors used 68.9% of their peremptory challenges
against black jurors, who made up less than one-quarter of the
venire); McKinney v. Walker, 394
F. Supp. 1015 , 1017-1018 (SC 1974) (in 13 criminal trials in
1970-1971 in Spartansburg County, South Carolina, involving black
defendants, prosecutors peremptorily challenged 82% of black
jurors), affirmance order, 529 F.2d 516 (CA4 1975).
[ Footnote 2/2 ] Prosecutors Page 476 U. S. 104 have explained to courts that they routinely strike black
jurors, see State v. Washington, 375 So.
2d 1162 , 1163-1164 (La.1979). An instruction book used by the
prosecutor's office in Dallas County, Texas, explicitly advised
prosecutors that they conduct jury selection so as to eliminate
" any member of a minority group.'" [ Footnote 2/3 ] In 100 felony trials in Dallas County in
1983-1984, prosecutors peremptorily struck 405 out of 467 eligible
black jurors; the chance of a qualified black sitting on a jury was
1 in 10, compared to 1 in 2 for a white. [ Footnote 2/4 ] The Court's discussion of the utter unconstitutionality of that
practice needs no amplification. This Court explained more than a
century ago that

															"'in the selection of jurors to pass upon [a defendant's] life,
liberty, or property, there shall be no exclusion of his race, and
no discrimination against them, because of their color.'" Neal v. Delaware, 103 U. S. 370 , 103 U. S. 394 (1881), quoting Virginia v. Rives, 100 U.
S. 313 , 100 U. S. 323 (1880). JUSTICE REHNQUIST, dissenting, concedes that exclusion of
blacks from a jury, solely because they are black, is at best based
upon "crudely stereotypical and . . . in many cases hopelessly
mistaken" notions. Post at 476 U. S. 138 .
Yet the Equal Protection Clause prohibits a State from taking any
action based on crude, inaccurate racial stereotypes -- even an
action that does not serve the State's interests. Exclusion of
blacks from a jury, solely because of race, can no more be
justified by a belief that blacks are less likely than whites to
consider fairly or sympathetically the State's case against a black
defendant than it can be justified by the notion that blacks Page 476 U. S. 105 lack the "intelligence, experience, or moral integrity," Neal, supra, at 103 U. S. 397 ,
to be entrusted with that role. II I wholeheartedly concur in the Court's conclusion that use of
the peremptory challenge to remove blacks from juries on the basis
of their race violates the Equal Protection Clause. I would go
further, however, in fashioning a remedy adequate to eliminate that
discrimination. Merely allowing defendants the opportunity to
challenge the racially discriminatory use of peremptory challenges
in individual cases will not end the illegitimate use of the
peremptory challenge.

															Evidentiary analysis similar to that set out by the Court ante at 476 U. S. 97 -98
has been adopted as a matter of state law in States including
Massachusetts and California. Cases from those jurisdictions
illustrate the limitations of the approach. First, defendants
cannot attack the discriminatory use of peremptory challenges at
all unless the challenges are so flagrant as to establish a prima facie case. This means, in those States, that where
only one or two black jurors survive the challenges for cause, the
prosecutor need have no compunction about striking them from the
jury because of their race. See Commonwealth v. Robinson, 382 Mass. 189, 195, 415
N.E.2d 805 , 809-810 (1981) (no prima facie case of
discrimination where defendant is black, prospective jurors include
three blacks and one Puerto Rican, and prosecutor excludes one for
cause and strikes the remainder peremptorily, producing all-white
jury); People v. Rousseau, 129 Cal.
App. 3d 526 , 536-537, 179 Cal. Rptr.
892 , 897-898 (1982) (no prima facie case where
prosecutor peremptorily strikes only two blacks on jury panel).
Prosecutors are left free to discriminate against blacks in jury
selection provided that they hold that discrimination to an
"acceptable" level.

															Second, when a defendant can establish a prima facie case, trial courts face the difficult burden of assessing
prosecutors' motives. See King v. County of
Nassau, 581 F.
Supp. 493 , Page 476 U. S. 106 501-502 (EDNY 1984). Any prosecutor can easily assert facially
neutral reasons for striking a juror, and trial courts are
ill-equipped to second-guess those reasons. How is the court to
treat a prosecutor's statement that he struck a juror because the
juror had a son about the same age as defendant, see People v.
Hall, 35 Cal. 3d
161 , 672 P.2d 854 (1983), or seemed "uncommunicative," King, supra, at 498,
or "never cracked a smile" and, therefore "did not possess the
sensitivities necessary to realistically look at the issues and
decide the facts in this case," Hall, supra, at 165, 672
P.2d at 856? If such easily generated explanations are sufficient
to discharge the prosecutor's obligation to justify his strikes on
nonracial grounds, then the protection erected by the Court today
may be illusory.

															Nor is outright prevarication by prosecutors the only danger
here. "[I]t is even possible that an attorney may lie to himself in
an effort to convince himself that his motives are legal." King, supra, at 502. A prosecutor's own conscious or
unconscious racism may lead him easily to the conclusion that a
prospective black juror is "sullen," or "distant," a
characterization that would not have come to his mind if a white
juror had acted identically. A judge's own conscious or unconscious
racism may lead him to accept such an explanation as well
supported. As JUSTICE REHNQUIST concedes, prosecutors' peremptories
are based on their "seat-of-the-pants instincts" as to how
particular jurors will vote. Post at 476 U. S. 138 ; see also THE CHIEF JUSTICE's dissenting opinion, post at 476 U. S. 123 .
Yet "seat-of-the-pants instincts" may often be just another term
for racial prejudice. Even if all parties approach the Court's
mandate with the best of conscious intentions, that mandate
requires them to confront and overcome their own racism on all
levels -- a challenge I doubt all of them can meet. It is worth
remembering that

															"114 years after the close of the War Between the States and
nearly 100 years after Strauder, racial and other forms of
discrimination still remain a fact of life, in the administration
of justice as in Page 476 U. S. 107 our society as a whole." Rose v. Mitchell, 443 U. S. 545 , 443 U. S.
558 -559 (1979), quoted in Vasquez v. Hillery, 474 U. S. 254 , 474 U. S. 264 (1986). III The inherent potential of peremptory challenges to distort the
jury process by permitting the exclusion of jurors on racial
grounds should ideally lead the Court to ban them entirely from the
criminal justice system. See Van Dyke, at 167-169; Imlay,
Federal Jury Reformation: Saving a Democratic Institution, 6 Loyola
(LA) L.Rev. 247, 269-270 (1973). Justice Goldberg, dissenting in Swain, emphasized 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."

															380 U.S. at 380 U. S. 244 .
I believe that this case presents just such a choice, and I would
resolve that choice by eliminating peremptory challenges entirely
in criminal cases.

															Some authors have suggested that the courts should ban
prosecutors' peremptories entirely, but should zealously guard the
defendant's peremptory as "essential to the fairness of trial by
jury," Lewis v. United States, 146 U.
S. 370 , 146 U. S. 376 (1892), and "one of the most important of the rights secured to the
accused," Pointer v. United States, 151 U.
S. 396 , 151 U. S. 408 (1894). See Van Dyke, at 167; Brown, McGuire, &
Winters, The Peremptory Challenge as a Manipulative Device in
Criminal Trials: Traditional Use or Abuse, 14 New England L.Rev.
192 (1978). I would not find that an acceptable solution. Our
criminal justice system

															"requires not only freedom from any bias against the accused,
but also from any prejudice against his prosecution. Between him
and the state, the scales are to be evenly held." Hayes v. Missouri, 120 U. S. 68 , 120 U. S. 70 (1887). We can maintain that balance, not by permitting both
prosecutor and defendant to engage in racial discrimination in jury
selection, but by banning the use of Page 476 U. S. 108 peremptory challenges by prosecutors and by allowing the States
to eliminate the defendant's peremptories as well.

															Much ink has been spilled regarding the historic importance of
defendants' peremptory challenges. The approving comments of the Lewis and Pointer Courts are noted above; the Swain Court emphasized the "very old credentials" of the
peremptory challenge, 380 U.S. at 380 U. S. 212 ,
and cited the "long and widely held belief that peremptory
challenge is a necessary part of trial by jury." Id. at 380 U. S. 219 .
But this Court has also repeatedly stated that the right of
peremptory challenge is not of constitutional magnitude, and may be
withheld altogether without impairing the constitutional guarantee
of impartial jury and fair trial. Frazier v. United
States, 335 U. S. 497 , 335 U. S. 505 ,
n. 11 (1948); United States v. Wood, 299 U.
S. 123 , 299 U. S. 145 (1936); Stilson v. United States, 250 U.
S. 583 , 250 U. S. 586 (1919); see also Swain, 380 U.S. at 380 U. S. 219 .
The potential for racial prejudice, further, inheres in the
defendant's challenge as well. If the prosecutor's peremptory
challenge could be eliminated only at the cost of eliminating the
defendant's challenge as well, I do not think that would be too
great a price to pay.

															I applaud the Court's holding that the racially discriminatory
use of peremptory challenges violates the Equal Protection Clause,
and I join the Court's opinion. However, only by banning
peremptories entirely can such discrimination be ended.

															[ Footnote 2/1 ] Commonwealth v. Martin, 461 Pa. 289, 299, 336 A.2d
290 , 295 (1975) (Nix, J., dissenting), quoted in McCray v.
New York, 461 U.S. 961, 965, n. 2 (1983) (MARSHALL, J.,
dissenting from denial of certiorari).

															[ Footnote 2/2 ] See also Harris v. Texas, 467 U.
S. 1261 (1984) (MARSHALL, J., dissenting from denial of
certiorari); Williams v. Illinois, 466 U.
S. 981 (1984) (MARSHALL, J., dissenting from denial of
certiorari).

															[ Footnote 2/3 ]

															Van Dyke, at 152, quoting Texas Observer, May 11, 1973, p. 9,
col. 2. An earlier jury selection treatise circulated in the same
county instructed prosecutors: "Do not take Jews, Negroes, Dagos,
Mexicans or a member of any minority race on a jury, no matter how
rich or how well educated." Quoted in Dallas Morning News, Mar. 9,
1986, p. 29, col. 1.

															[ Footnote 2/4 ] Id. at 1, col. 1; see also Comment, A Case
Study of the Peremptory Challenge: A Subtle Strike at Equal
Protection and Due Process, 18 St.Louis U. L.J. 662 (1974).

															JUSTICE STEVENS, with whom JUSTICE BRENNAN joins,
concurring.

															In his dissenting opinion, THE CHIEF JUSTICE correctly
identifies an apparent inconsistency between my criticism of the
Court's action in Colorado v. Connelly, 474 U.
S. 1050 (1986) (memorandum of BRENNAN, J., joined by
STEVENS, J.), and New Jersey v. T.L.O., 468 U.
S. 1214 (1984) (STEVENS, J., dissenting) -- cases in
which the Court directed the State to brief and argue questions not
presented in its petition Page 476 U. S. 109 for certiorari -- and our action today in finding a violation of
the Equal Protection Clause despite the failure of petitioner's
counsel to rely on that ground of decision. Post at 476 U. S.
115 -116, nn. 1 and 2. In this case, however -- unlike Connelly and T.L.O. -- the party defending the
judgment has explicitly rested on the issue in question as a
controlling basis for affirmance. In defending the Kentucky Supreme
Court's judgment, Kentucky's Assistant Attorney General emphasized
the State's position on the centrality of the equal protection
issue:

															". . . Mr. Chief Justice, and may it please the Court, the issue
before this Court today is simply whether Swain versus
Alabama should be reaffirmed. . . ."

															" * * * *" ". . . We believe that it is the Fourteenth Amendment that is
the item that should be challenged, and presents perhaps an address
to the problem. Swain dealt primarily with the use of
peremptory challenges to strike individuals who were of a
cognizable or identifiable group."

															"Petitioners show no case other than the State of California's
case dealing with the use of peremptories wherein the Sixth
Amendment was cited as authority for resolving the problem. So we
believe that the Fourteenth Amendment is indeed the issue. That was
the guts and primarily the basic concern of Swain. "

															" * * * *" "In closing, we believe that the trial court of Kentucky and the
Supreme Court of Kentucky have firmly embraced Swain, and
we respectfully request that this Court affirm the opinion of the
Kentucky court, as well as to reaffirm Swain versus
Alabama. [ Footnote 3/1 ]"

															In addition to the party's reliance on the equal protection
argument in defense of the judgment, several amici
curiae Page 476 U. S. 110 also addressed that argument. For instance, the argument in the
brief filed by the Solicitor General of the United States
begins:

															"PETITIONER DID NOT ESTABLISH THAT HE WAS DEPRIVED OF A PROPERLY
CONSTITUTED PETIT JURY OR DENIED EQUAL PROTECTION OF THE LAWS"

															"A. Under Swain v. Alabama, A Defendant Cannot
Establish An Equal Protection Violation By Showing Only That Black
Veniremen Were Subjected To Peremptory Challenge By The Prosecution
In His Case [ Footnote 3/2 ]"

															Several other amici similarly emphasized this issue.
[ Footnote 3/3 ]

															In these circumstances, although I suppose it is possible that
reargument might enable some of us to have a better informed view
of a problem that has been percolating in the courts for several
years, [ Footnote 3/4 ] I believe the
Court acts wisely in Page 476 U. S. 111 resolving the issue now on the basis of the arguments that have
already been fully presented without any special invitation from
this Court. [ Footnote 3/5 ]

															[ Footnote 3/1 ]

															Tr. of Oral Arg. 27-28, 43.

															[ Footnote 3/2 ]

															Brief for United States as Amicus Curiae 7.

															[ Footnote 3/3 ]

															The argument section of the brief for the National District
Attorneys Association, Inc., as amicus curiae in support
of respondent begins as follows:

															"This Court should conclude that the prosecutorial peremptory
challenges exercised in this case were proper under the fourteenth
amendment equal protection clause and the sixth amendment. This
Court should further determine that there is no constitutional need
to change or otherwise modify this Court's decision in Swain v.
Alabama. " Id. at 5. Amici supporting petitioner also emphasized the
importance of the equal protection issue. See, e.g., Brief
for NAACP Legal Defense and Educational Fund, American Jewish
Committee, and American Jewish Congress as Amici Curiae 24-36; Brief for Lawyers' Committee for Civil Rights Under Law as Amicus Curiae 11-17; Brief for Elizabeth Holtzman as Amicus Curiae 13.

															[ Footnote 3/4 ] See McCray v. New York, 461 U.S. 961 (1983) (opinion of
STEVENS, J., respecting denial of certiorari); id. at 963
(MARSHALL, J., dissenting from denial of certiorari).

															The eventual federal habeas corpus disposition of McCray, of course, proved to be one of the landmark cases
that made the issues in this case ripe for review. McCray v.
Abrams, 750 F.2d 1113 (CA2 1984), cert. pending, No.
P,4-1426. See also Pet. for Cert. 5-7 (relying heavily on McCray as a reason for review). In McCray, as in
almost all opinions that have considered similar challenges, the
Court of Appeals for the Second Circuit explicitly addressed the
equal protection issue and the viability of Swain. 750
F.2d at 1118-1124. The pending petition for certiorari in McCray similarly raises the equal protection question that
has long been central to this issue. Pet. for Cert. in No. 84-1426
(Question 2). Indeed, shortly after agreeing to hear Batson, the Court was presented with a motion to
consolidate McCray and Batson, and consider the
cases together. Presumably because the Court believed that Batson adequately presented the issues with which other
courts had consistently grappled in considering this question, the
Court denied the motion. See Abrams v. McCray, 471 U.S.
1097 (1985). Cf. ibid. (BRENNAN, MARSHALL, and STEVENS,
JJ., dissenting from denial of motion to consolidate).

															[ Footnote 3/5 ]

															Although I disagree with his criticism of the Court in this
case, I fully subscribe to THE CHIEF JUSTICE's view, expressed
today, that the Court should only address issues necessary to the
disposition of the case or petition. For contrasting views, see, e.g., Bender v. Williamsport Area School Dist., 475 U. S. 534 , 475 U. S. 551 (1986) (BURGER, C.J., dissenting) (addressing merits even though
majority of the Court found a lack of standing); Colorado v.
Nunez, 465 U. S. 324 (1984) (concurring opinion, joined by BURGER, C.J.) (expressing
view on merits even though writ was dismissed as improvidently
granted because state court judgment rested on adequate and
independent state grounds); Florida v. Casal, 462 U.
S. 637 , 462 U. S. 639 (1983) (BURGER, C.J., concurring) (agreeing with Court that writ
should be dismissed as improvidently granted because judgment
rested on adequate and independent state grounds, but noting that
"the citizens of t he state must be aware that they have the power
to amend state law to ensure rational law enforcement"). See
also Colorado v. Connelly, 474 U. S. 1050 (1986) (ordering parties to address issue that neither party
raised); New Jersey v. T.L.O., 468 U.
S. 1214 (1984) (same).

															JUSTICE O'CONNOR, concurring.

															I concur in the Court's opinion and judgment, but also agree
with the views of THE CHIEF JUSTICE and JUSTICE WHITE that today's
decision does not apply retroactively. Page 476 U. S. 112 CHIEF JUSTICE BURGER, joined by JUSTICE REHNQUIST,
dissenting.

															We granted certiorari to decide whether petitioner was tried

															"in violation of constitutional provisions guaranteeing the
defendant an impartial jury and a jury composed of persons
representing a fair cross-section of the community."

															Pet. for Cert. i. I Today the Court sets aside the peremptory challenge, a procedure
which has been part of the common law for many centuries and part
of our jury system for nearly 200 years. It does so on the basis of
a constitutional argument that was rejected, without a single
dissent, in Swain Alabama, 380 U.
S. 202 (1965). Reversal of such settled principles would
be unusual enough on its own terms, for only three years ago we
said that " stare decisis, while perhaps never entirely
persuasive on a constitutional question, is a doctrine that demands
respect in a society governed by the rule of law." Akron v.
Akron Center for Reproductive Health, Inc., 462 U.
S. 416 , 420 (1983). What makes today's holding truly
extraordinary is that it is based on a constitutional argument that
the petitioner has expressly declined to raise, both in
this Court and in the Supreme Court of Kentucky.

															In the Kentucky Supreme Court, petitioner disclaimed
specifically any reliance on the Equal Protection Clause of the
Fourteenth Amendment, pressing instead only a claim based on the
Sixth Amendment. See Brief for Appellant 14 and Reply
Brief for Appellant 1 in No. 84-SC-733-MR (Ky.). As petitioner
explained at oral argument here:

															"We have not made an equal protection claim. . . . We have not
made a specific argument in the briefs that have been filed either
in the Supreme Court of Kentucky or in this Court saying that we
are attacking Swain as such."

															Tr. of Oral Arg. 6-7. Petitioner has not suggested any barrier
prevented raising an equal protection claim in the Kentucky courts.
In such circumstances, review of an equal protection argument is
improper Page 476 U. S. 113 in this Court: " The Court has consistently refused to decide
federal constitutional issues raised here for the first time on
review of state court decisions. . . .'" Illinois v.
Gates, 459 U. S. 1028 ,
1029, n. 2 (1982) (STEVENS, J., dissenting) (quoting Cardinale
v. Louisiana, 394 U. S. 437 , 394 U. S. 438 (1969)). Neither the Court nor JUSTICE STEVENS offers any
justification for departing from this time-honored principle, which
dates to Owings v. Norwood's
Lessee , 5 Cranch 344 (1809), and Crowell v.
Randell , 10 Pet. 368 (1836). Even if the equal protection issue had been pressed in the
Kentucky Supreme Court, it has surely not been pressed here. This
provides an additional and completely separate procedural novelty
to today's decision. Petitioner's "question presented" involved
only the

															"constitutional provisions guaranteeing the defendant an
impartial jury and a jury composed of persons representing a fair
cross-section of the community."

															Pet. for Cert. i. These provisions are found in the Sixth
Amendment, not the Equal Protection Clause of the Fourteenth
Amendment relied upon by the Court. In his brief on the merits,
under a heading distinguishing equal protection cases, petitioner
noted "the irrelevance of the Swain analysis to the
present case," Brief for Petitioner 11; instead, petitioner relied
solely on Sixth Amendment analysis found in cases such as Taylor v. Louisiana, 419 U. S. 522 (1975). During oral argument, counsel for petitioner was pointedly
asked:

															"QUESTION: Mr. Niehaus, Swain was an equal protection
challenge, was it not?"

															"MR. NIEHAUS: Yes."

															"QUESTION: Your claim here is based solely on the Sixth
Amendment?"

															"MR. NIEHAUS: Yes."

															"QUESTION: Is that correct?"

															"MR. NIEHAUS: That is what we are arguing, yes. " Page 476 U. S. 114 "QUESTION: You are not asking for a reconsideration of Swain, and you are making no equal protection claim here.
Is that correct?"

															"MR. NIEHAUS: We have not made an equal protection claim. I
think that Swain will have to be reconsidered to a certain
extent, if only to consider the arguments that are made on behalf
of affirmance by the respondent and the solicitor general."

															" * * * *" "MR. NIEHAUS: We have not made a specific argument in the briefs
that have been filed either in the Supreme Court of Kentucky or in
this Court saying that we are attacking Swain as such. . .
."

															Tr. of Oral Arg. 5-7. A short time later, after discussing the
difficulties attendant with a Sixth Amendment claim, the following
colloquy occurred:

															"QUESTION: So I come back again to my question why you didn't
attack Swain head on, but I take it, if the Court were to
overrule Swain, you wouldn't like that result."

															"MR. NIEHAUS: Simply overrule Swain without adopting
the remedy?"

															"QUESTION: Yes."

															"MR. NIEHAUS: I do not think that would give us much comfort,
Your Honor, no."

															"QUESTION: That is a concession." Id. at 10. Later, petitioner's counsel refused to
answer the Court's questions concerning the implications of a
holding based on equal protection concerns:

															"MR. NIEHAUS: . . . [T]here is no state action involved where
the defendant is exercising his peremptory challenge. " Page 476 U. S. 115 "QUESTION: But there might be under an equal protection
challenge if it is the state system that allows that kind of a
strike."

															"MR. NIEHAUS: I believe that is possible. I am really not
prepared to answer that specific question. . . ." Id. at 20.

															In reaching the equal protection issue despite petitioner's
clear refusal to present it, the Court departs dramatically from
its normal procedure without any explanation. When we granted
certiorari, we could have -- as we sometimes do -- directed the
parties to brief the equal protection question in addition to the
Sixth Amendment question. See, e.g., Paris Adult Theatre I v.
Slaton, 408 U.S. 921 (1972); Colorado v. Connelly, 474 U. S. 1050 (1986). [ Footnote 4/1 ] Even
following oral argument, we could have -- as we sometimes do --
directed reargument on this particular question. See, e.g.,
Brown v. Board of Education, 345 U.S. 972 (1953); Illinois
v. Gates, supra; New Jersey v. T.L.O., 468 U.
S. 1214 (1984). [ Footnote
4/2 ] This step is particularly appropriate where
reexamination Page 476 U. S. 116 of a prior decision is under consideration. See, e.g.,
Garcia v. San Antonio Metropolitan Transit Authority, 468 U.S.
1213 (1984) (directing reargument and briefing on issue of whether National League of Cities v. Usery, 426 U.
S. 833 (1976), should be reconsidered); Alfred
Dunhill of London, Inc. v. Republic of Cuba, 422 U.S. 1005
(1975) (directing reargument and briefing on issue of whether the
holding in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964), should be reconsidered). Alternatively, we could have
simply dismissed this petition as improvidently granted.

															The Court today rejects these accepted courses of action,
choosing instead to reverse a 21-year-old unanimous constitutional
holding of this Court on the basis of constitutional arguments
expressly disclaimed by petitioner. The only explanation for this
action is found in JUSTICE STEVENS' concurrence. JUSTICE STEVENS
apparently believes that this issue is properly before the Court
because "the party defending the judgment has explicitly rested on
the issue in question as a controlling basis for affirmance." Ante at 476 U. S. 109 . Cf. Illinois v. Gates, 459 U.S. at 1029, n. 1 (STEVENS,
J., dissenting) ("[T]here is no impediment to presenting a new
argument as an alternative basis for affirming the
decision below") (emphasis in original). To be sure, respondent and
supporting amici did cite Swain and the Equal
Protection Clause. But their arguments were largely limited to
explaining Page 476 U. S. 117 that Swain placed a negative gloss on the Sixth
Amendment claim actually raised by petitioner. In any event, it is
a strange jurisprudence that looks to the arguments made by
respondent to determine the breadth of the questions presented for
our review by petitioner. Of course, such a view is directly at
odds with our Rule 21.1(a), which provides that "[o]nly the
questions set forth in the petition or fairly included therein will
be considered by the Court." JUSTICE STEVENS does not cite, and I
am not aware of, any case in this Court's nearly 200-year history
where the alternative grounds urged by respondent to affirm a
judgment were then seized upon to permit petitioner to obtain
relief from that very judgment despite petitioner's failure to urge
that ground.

															JUSTICE STEVENS also observes that several amici curiae address the equal protection argument. Ante at 476 U. S.
109 -110, and n. 3. But I thought it well settled that,
even if a "point is made in an amicus curiae brief," if
the claim "has never been advanced by petitioners, . . . we have no
reason to pass upon it." Knetsch v. United States, 364 U. S. 361 , 364 U. S. 370 (1960).

															When objections to peremptory challenges were brought to this
Court three years ago, JUSTICE STEVENS agreed with JUSTICE MARSHALL
that the challenge involved "a significant and recurring question
of constitutional law." McCray v. New York, 461 U.S. 961,
963 (1983) (MARSHALL, J., dissenting from denial of certiorari), referred to with approval, id. at 961 (opinion of STEVENS,
J., respecting denial of certiorari). Nonetheless, JUSTICE STEVENS
wrote that the issue could be dealt with "more wisely at a later
date." Id. at 962. The same conditions exist here today.
JUSTICE STEVENS concedes that reargument of this case "might enable
some of us to have a better informed view of a problem that has
been percolating in the courts for several years." Ante at 476 U. S. 110 .
Thus, at bottom, his position is that we should overrule an
extremely important prior constitutional decision of this Court on
a claim not advanced here, even though briefing and oral Page 476 U. S. 118 argument on this claim might convince us to do otherwise.
[ Footnote 4/3 ] I believe that
"[d]ecisions made in this manner are unlikely to withstand the test
of time." United States v. Leon, 468 U.
S. 897 , 468 U. S. 962 (1984) (STEVENS, J., dissenting). Before contemplating such a
holding, I would at least direct reargument and briefing on the
issue of whether the equal protection holding in Swain should be reconsidered. II Because the Court nonetheless chooses to decide this case on the
equal protection grounds not presented, it may be useful to discuss
this issue as well. The Court acknowledges, albeit in a footnote,
the " very old credentials'" of the peremptory challenge and the
"`widely held belief that peremptory challenge is a necessary part
of trial by jury.'" Ante at 476 U. S. 91 , n.
15 (quoting Swain, 380 U.S. at 380 U. S.
219 ). But proper resolution of this case requires more
than a nodding reference to the purpose of the challenge. Long ago,
it was Page 476 U. S. 119 recognized that "[t]he right of challenge is almost essential
for the purpose of securing perfect fairness and impartiality in a
trial." W. Forsyth, History of Trial by Jury 175 (1852). The
peremptory challenge has been in use without scrutiny into its
basis for nearly as long as juries have existed.

															"It was in use amongst the Romans in criminal cases, and the Lex Servilia (B.C. 104) enacted that the accuser and the
accused should severally propose one hundred judices, and
that each might reject fifty from the list of the other, so that
one hundred would remain to try the alleged crime." Ibid.; see also J. Pettingal, An Enquiry into the Use
and Practice of Juries Among the Greeks and Romans 115, 135
(1769).

															In Swain, JUSTICE WHITE traced the development of the
peremptory challenge from the early days of the jury trial in
England:

															"In all trials for felonies at common law, the defendant was
allowed to challenge peremptorily 35 jurors, and the prosecutor
originally had a right to challenge any number of jurors without
cause, a right which was said to tend to 'infinite delayes and
danger.' Coke on Littleton 156 (14th ed. 1791). Thus The Ordinance
for Inquests, 33 Edw. 1, Stat. 4 (1305), provided that, if 'they
that sue for the King will challenge any . . . Jurors, they shall
assign . . . a Cause certain.' So persistent was the view that a
proper jury trial required peremptories on both sides, however,
that the statute was construed to allow the prosecution to direct
any juror after examination to 'stand aside' until the entire panel
was gone over and the defendant had exercised his challenges; only
if there was a deficiency of jurors in the box at that point did
the Crown have to show cause in respect to jurors recalled to make
up the required number. Peremptories on both sides became the
settled law of England, continuing in the above form until after
the separation of the Colonies."

															380 U.S. at 380 U. S.
212 -213 (footnotes omitted). Page 476 U. S. 120 Peremptory challenges have a venerable tradition in this country
as well:

															"In the federal system, Congress early took a part of the
subject in hand in establishing that the defendant was entitled to
35 peremptories in trials for treason and 20 in trials for other
felonies specified in the 1790 Act as punishable by death, 1 Stat.
119 (1790). In regard to trials for other offenses without the 1790
statute, both the defendant and the Government were thought to have
a right of peremptory challenge, although the source of this right
was not wholly clear. . . ."

															"The course in the States apparently paralleled that in the
federal system. The defendant's right of challenge was early
conferred by statute, the number often corresponding to the English
practice, the prosecution was thought to have retained the Crown's
common law right to stand aside, and by 1870, most, if not all,
States had enacted statutes conferring on the prosecution a
substantial number of peremptory challenges, the number generally
being at least half, but often equal to, the number had by the
defendant." Id. at 380 U. S.
214 -216 (footnotes omitted).

															The Court's opinion, in addition to ignoring the teachings of
history, also contrasts with Swain in its failure to even
discuss the rationale of the peremptory challenge. Swain observed:

															"The function of the challenge is not only to eliminate extremes
of partiality on both sides, but to assure the parties that the
jurors before whom they try the case will decide on the basis of
the evidence placed for them, and not otherwise. In this way, the
peremptory satisfies the rule that, "to perform its high function
in the best way, justice must satisfy the appearance of
justice.'"" Id. at 380 U. S. 219 (quoting In re Murchison, 349 U.
S. 133 , 349 U. S. 136 (1955)). Page 476 U. S. 121 Permitting unexplained peremptories has long been regarded as a
means to strengthen our jury system in other ways as well. One
commentator has recognized:

															"The peremptory, made without giving any reason, avoids
trafficking in the core of truth in most common stereotypes. . . .
Common human experience, common sense, psychosociological studies,
and public opinion polls tell us that it is likely that certain
classes of people statistically have predispositions that would
make them inappropriate jurors for particular kinds of cases. But
to allow this knowledge to be expressed in the evaluative terms
necessary for challenges for cause would undercut our desire for a
society in which all people are judged as individuals, and in which
each is held reasonable and open to compromise. . . . [For
example,] [a]lthough experience reveals that black males as a class
can be biased against young alienated blacks who have not tried to
join the middle class, to enunciate this in the concrete expression
required of a challenge for cause is societally divisive. Instead
we have evolved in the peremptory challenge a system that allows
the covert expression of what we dare not say, but know is true
more often than not."

															Babcock, Voir Dire: Preserving "Its Wonderful Power," 27
Stan.L.Rev. 545, 553-554 (1975). For reasons such as these, this
Court concluded in Swain that "the [peremptory] challenge
is one of the most important of the rights'" in our justice
system. Swain, 380 U.S. at 380 U. S. 219 (quoting Pointer v. United States, 151 U.
S. 396 , 151 U. S. 408 (1894)). For close to a century, then, it has been settled that
"[t]he denial or impairment of the right is reversible error
without a showing of prejudice." Swain, supra, at 380 U. S. 219 (citing Lewis v. United States, 146 U.
S. 370 (1892)). Instead of even considering the history or function of the
peremptory challenge, the bulk of the Court's opinion is spent
recounting the well-established principle that intentional
exclusion of racial groups from jury venires is a Page 476 U. S. 122 violation of the Equal Protection Clause. I too reaffirm that
principle, which has been a part of our constitutional tradition
since at least Strauder West Virginia, 100 U.
S. 303 (1880). But if today's decision is nothing more
than mere "application" of the "principles announced in Strauder, " as the Court maintains, ante at 476 U. S. 89 -90,
some will consider it curious that the application went
unrecognized for over a century. The Court in Swain had no
difficulty in unanimously concluding that cases such as Strauder did not require inquiry into the basis for a
peremptory challenge. See post at 476 U. S.
135 -137 (REHNQUIST, J., dissenting). More recently we
held that "[d]efendants are not entitled to a jury of any
particular composition. . . ." Taylor v. Louisiana, 419
U.S. at 419 U. S.
538 .

															A moment's reflection quickly reveals the vast differences
between the racial exclusions involved in Strauder and the
allegations before us today:

															"Exclusion from the venire summons process implies that the
government (usually the legislative or judicial branch) . . . has
made the general determination that those excluded are unfit to try any case. Exercise of the peremptory challenge, by
contrast, represents the discrete decision, made by one of two or
more opposed litigants in the trial phase of our adversary
system of justice, that the challenged venireperson will likely be
more unfavorable to that litigant in that particular case than others on the same venire."

															"Thus, excluding a particular cognizable group from an venire
pools is stigmatizing and discriminatory in several interrelated
ways that the peremptory challenge is not. The former singles out
the excluded group, while individuals of all groups are equally
subject to peremptory challenge on any basis, including their group
affiliation. Further, venire-pool exclusion bespeaks a
priori across-the-board total unfitness, while
peremptory-strike exclusion merely suggests potential partiality in
a particular Page 476 U. S. 123 isolated case. Exclusion from venires focuses on the inherent
attributes of the excluded group and infers its inferiority, but the peremptory does not. To suggest that
a particular race is unfit to judge in any case necessarily is
racially insulting. To suggest that each race may have its own
special concerns, or even may tend to favor its own, is not." United States v. Leslie, 783 F.2d 541, 554 (CA5 1986)
(en banc).

															Unwilling to rest solely on jury venire cases such as Strauder, the Court also invokes general equal protection
principles in support of its holding. But peremptory challenges are
often lodged, of necessity, for reasons

															"normally thought irrelevant to legal proceedings or official
action, namely, the race, religion, nationality, occupation or
affiliations of people summoned for jury duty." Swain, supra, at 380 U. S. 220 .
Moreover, in making peremptory challenges, both the prosecutor and
defense attorney necessarily act on only limited information or
hunch. The process cannot be indicted on the sole basis that such
decisions are made on the basis of "assumption" or "intuitive
judgment." Ante at 476 U. S. 97 . As
a result, unadulterated equal protection analysis is simply
inapplicable to peremptory challenges exercised in any particular
case. A clause that requires a minimum "rationality" in government
actions has no application to " an arbitrary and capricious
right,'" Swain, supra, at 380 U. S. 219 (quoting Lewis v. United States, supra, at 146 U. S.
378 ); a constitutional principle that may invalidate
state action on the basis of "stereotypic notions," Mississippi
University for Women v. Hogan, 458 U.
S. 718 , 458 U. S. 725 (1982), does not explain the breadth of a procedure exercised on
the "`sudden impressions and unaccountable prejudices we are apt to
conceive upon the bare looks and gestures of another.'" Lewis,
supra, at 146 U. S. 376 (quoting 4 W. Blackstone, Commentaries *353). That the Court is not applying conventional equal protection
analysis is shown by its limitation of its new rule to allegations
of impermissible challenge on the basis of race; the Page 476 U. S. 124 Court's opinion clearly contains such a limitation. See
ante at 476 U. S. 96 (to
establish a prima facie case, "the defendant first must
show that he is a member of a cognizable racial group ")
(emphasis added); ibid. ("[F]inally, the defendant must
show that these facts and any other relevant circumstances raise an
inference that the prosecutor used that practice to exclude the
veniremen from the petit jury on account of their race ")
(emphasis added). But if conventional equal protection principles
apply, then presumably defendants could object to exclusions on the
basis of not only race, but also sex, Craig v. Boren, 429 U. S. 190 (1976); age, Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976); religious or political affiliation, Karcher v.
Daggett, 462 U. S. 725 , 748
(1983) (STEVENS, J., concurring); mental capacity, Cleburne v.
Cleburne Living Center, Inc., 473 U.
S. 432 (1985); number of children, Dandridge v.
Williams, 397 U. S. 471 (1970); living arrangements, Department of Agriculture v.
Moreno, 413 U. S. 528 (1973); and employment in a particular industry, Minnesota v.
Clover Leaf Creamery Co., 449 U. S. 456 (1981), or profession, Williamson v. Lee Optical Co., 348 U. S. 483 (1955). [ Footnote 4/4 ]

															In short, it is quite probable that every peremptory challenge
could be objected to on the basis that, because it excluded a
venireman who had some characteristic not shared by the remaining
members of the venire, it constituted a "classification" subject to
equal protection scrutiny. See McCray v. Abrams, 750 F.2d
1113, 1139 (CA2 1984) (Meskill, J., dissenting), cert.
pending, No. 84-1426. Compounding the difficulties, under
conventional equal protection principles some uses of peremptories
would be reviewed under "strict scrutiny and . . . sustained only
if . . . suitably tailored to serve a compelling state interest," Cleburne, 473 Page 476 U. S. 125 U.S. at 473 U. S. 440 ;
others would be reviewed to determine if they were "substantially
related to a sufficiently important government interest," id. at 473 U. S. 441 ;
and still others would be reviewed to determine whether they were
"a rational means to serve a legitimate end." Id. at 473 U. S.
442 .

															The Court never applies this conventional equal protection
framework to the claims at hand, perhaps to avoid acknowledging
that the state interest involved here has historically been
regarded by this Court as substantial, if not compelling.
Peremptory challenges have long been viewed as a means to achieve
an impartial jury that will be sympathetic toward neither an
accused nor witnesses for the State on the basis of some shared
factor of race, religion, occupation, or other characteristic.
Nearly a century ago, the Court stated that the peremptory
challenge is "essential to the fairness of trial by jury." Lewis v. United States, 146 U.S. at 146 U. S. 376 .
Under conventional equal protection principles, a state interest of
this magnitude and ancient lineage might well overcome an equal
protection objection to the application of peremptory challenges.
However, the Court is silent on the strength of the State's
interest, apparently leaving this issue, among many others, to the
further "litigation [that] will be required to spell out the
contours of the Court's equal protection holding today. . . ." Ante at 476 U. S. 102 (WHITE, J., concurring). [ Footnote
4/5 ]

															The Court also purports to express "no views on whether the
Constitution imposes any limit on the exercise of peremptory
challenges by defense counsel." Ante at 476 U. S. 89 , n.
12 (emphasis added). But the clear and inescapable import of this
novel holding will inevitably be to limit the use of this
valuable Page 476 U. S. 126 tool to both prosecutors and defense attorneys alike. Once the
Court has held that prosecutors are limited in their use
of peremptory challenges, could we rationally hold that defendants
are not? [ Footnote 4/6 ]

															"Our criminal justice system 'requires not only freedom from any
bias against the accused, but also from any prejudice against his
prosecution. Between him and the state, the scales are to be evenly
held.'" Ante at 476 U. S. 107 (MARSHALL, J., concurring) (quoting Hayes v. Missouri, 120 U. S. 68 , 120 U. S. 70 (1887)).

															Rather than applying straightforward equal protection analysis,
the Court substitutes for the holding in Swain a curious
hybrid. The defendant must first establish a " prima facie case," ante at 476 U. S. 93 -94,
of invidious discrimination, then the "burden shifts to the State
to come forward with a neutral explanation for challenging black
jurors." Ante at 476 U. S. 97 .
The Court explains that "the operation of prima facie burden of proof rules" is established in "[o]ur decisions
concerning disparate treatment'. . . ." Ante at 476 U. S. 94 , n.
18. The Court then adds, borrowing again from a Title VII case,
that "the prosecutor must give a `clear and reasonably specific'
explanation of his `legitimate reasons' for exercising the
challenges." Ante at 476 U. S. 98 , n.
20 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 450 U. S. 258 (1981)). [ Footnote 4/7 ] While undoubtedly these rules are well suited to other contexts,
particularly where (as with Title VII) they are required by an Act
of Congress, [ Footnote 4/8 ] they
seem curiously out Page 476 U. S. 127 of place when applied to peremptory challenges in criminal
cases. Our system permits two types of challenges: challenges for
cause and peremptory challenges. Challenges for cause obviously
have to be explained; by definition, peremptory challenges do
not.

															"It is called a peremptory challenge because the prisoner may
challenge peremptorily, on his own dislike, without showing of
any cause. "

															H. Joy, On Peremptory Challenge of Jurors 1 (1844) (emphasis
added). Analytically, there is no middle ground: a challenge either
has to be explained or it does not. It is readily apparent, then,
that to permit inquiry into the basis for a peremptory challenge
would force "the peremptory challenge [to] collapse into the
challenge for cause." United States v. Clark, 737 F.2d
679, 682 (CA7 1984). Indeed, the Court recognized without dissent
in Swain that, if scrutiny were permitted,

															"[t]he challenge, pro tanto, would no longer be
peremptory, each and every challenge being open to examination,
either at the time of the challenge or at a hearing
afterwards." Swain, 380 U.S. at 380 U. S.
222 .

															Confronted with the dilemma it created, the Court today attempts
to decree a middle ground. To rebut a prima facie case,
the Court requires a "neutral explanation" for the challenge, but
is at pains to "emphasize" that the "explanation need not rise to
the level justifying exercise of a challenge for cause." Ante at 476 U. S. 97 . I
am at a loss to discern the governing principles here. A "clear and
reasonably specific" explanation of "legitimate reasons" for
exercising the challenge will be difficult to distinguish from a
challenge for cause. Anything Page 476 U. S. 128 short of a challenge for cause may well be seen as an "arbitrary
and capricious" challenge, to use Blackstone's characterization of
the peremptory. See 4 W. Blackstone, Commentaries *353.
Apparently the Court envisions permissible challenges short of a
challenge for cause that are just a little bit arbitrary -- but not
too much. While our trial judges are "experienced in supervising voir dire, " ante at 476 U. S. 97 ,
they have no experience in administering rules like this.

															An example will quickly demonstrate how today's holding, while
purporting to "further the ends of justice," ante at 476 U. S. 99 ,
will not have that effect. Assume an Asian defendant, on trial for
the capital murder of a white victim, asks prospective jury
members, most of whom are white, whether they harbor racial
prejudice against Asians. See Turner v. Murray, ante at 476 U. S. 36 -37.
The basis for such a question is to flush out any "juror who
believes that [Asians] are violence-prone or morally inferior. . .
." Ante at 476 U. S. 35 .
[ Footnote 4/9 ] Assume further that
all white jurors deny harboring racial prejudice, but that the
defendant, on trial for his life, remains unconvinced by these
protestations. Instead, he continues to harbor a hunch, an
"assumption," or "intuitive judgment," ante at 476 U. S. 97 ,
that these white jurors will be prejudiced against him, presumably
based in part on race. The time-honored rule before today was that
peremptory challenges could be exercised on such a basis. The Court
explained in Lewis v. United States: "[H]ow necessary it is that a prisoner (when put to defend his
life) should have good opinion of his jury, the want of which might
totally disconcert him; the law wills not that he should be tried
by any one man against whom Page 476 U. S. 129 he has conceived a prejudice even without being able to assign a
reason for such his dislike."

															146 U.S. at 146 U. S. 376 .
The effect of the Court's decision, however, will be to force the
defendant to come forward and "articulate a neutral explanation," ante at 476 U. S. 98 ,
for his peremptory challenge, a burden he probably cannot meet.
This example demonstrates that today's holding will produce juries
that the parties do not believe are truly impartial. This will
surely do more than "disconcert" litigants; it will diminish
confidence in the jury system.

															A further painful paradox of the Court's holding is that it is
likely to interject racial matters back into the jury selection
process, contrary to the general thrust of a long line of Court
decisions and the notion of our country as a "melting pot." In Avery v. Georgia, 345 U. S. 559 (1953), for instance, the Court confronted a situation where the
selection of the venire was done through the selection of tickets
from a box; the names of whites were printed on tickets of one
color and the names of blacks were printed on different color
tickets. The Court had no difficulty in striking down such a
scheme. Justice Frankfurter observed that

															"opportunity for working of a discriminatory system exists
whenever the mechanism for jury selection has a component
part, such as the slips here, that differentiates between
white and colored. . . . " Id. at 345 U. S. 564 (concurring) (emphasis added).

															Today we mark the return of racial differentiation as the Court
accepts a positive evil for a perceived one. Prosecutors and
defense attorneys alike will build records in support of their
claims that peremptory challenges have been exercised in a racially
discriminatory fashion by asking jurors to state their racial
background and national origin for the record, despite the fact
that "such questions may be offensive to some jurors, and thus are
not ordinarily asked on voir dire. " People v.
Motton, 39 Cal. 3d
596 , 604, 704 P.2d Page 476 U. S. 130 176, 180, modified, 40 Cal. 3d 4b (1985) (advance
sheet). [ Footnote 4/10 ] This
process is sure to tax even the most capable counsel and judges,
since determining whether a prima facie case has been
established will "require a continued monitoring and recording of
the group' composition of the panel present and prospective. .
. ." People v. Wheeler, 22 Cal. 3d
258 , 294, 583 P.2d 748, 773 (1978) (Richardson, J.,
dissenting). Even after a "record" on this issue has been created, disputes
will inevitably arise. In one case, for instance, a conviction was
reversed based on the assumption that no blacks were on the jury
that convicted a defendant. See People v. Motton, supra. However, after the court's decision was announced, Carolyn
Pritchett, who had served on the jury, called the press to state
that the court was in error, and that she was black. 71 A.B.A.J. 22
(Nov.1985). The California court nonetheless denied a rehearing
petition. [ Footnote 4/11 ]

															The Court does not tarry long over any of these difficult,
sensitive problems, preferring instead to gloss over them as
swiftly as it slides over centuries of history: "[W]e make no
attempt to instruct [trial] courts how best to implement Page 476 U. S. 131 our holding today." Ante at 476 U. S.
99 -100, n. 24. That leaves roughly 7,000 general
jurisdiction state trial judges and approximately 500 federal trial
judges at large to find their way through the morass the Court
creates today. The Court essentially wishes these judges well as
they begin the difficult enterprise of sorting out the implications
of the Court's newly created "right." I join my colleagues in
wishing the Nation's judges well as they struggle to grasp how to
implement today's holding. To my mind, however, attention to these
"implementation" questions leads quickly to the conclusion that
there is no "good" way to implement the holding, let alone a "best"
way. As one apparently frustrated judge explained after reviewing a
case under a rule like that promulgated by the Court today,
judicial inquiry into peremptory challenges

															"from case to case will take the courts into the quagmire of
quotas for groups that are difficult to define and even more
difficult to quantify in the courtroom. The pursuit of judicial
perfection will require both trial and appellate courts to provide
speculative and impractical answers to artificial questions." Holley v. J & S Sweeping Co., 143 Cal. App.
3d 588 , 595-596, 192 Cal. Rptr.
74 , 79 (1983) (Holmdahl, J., concurring) (footnote omitted).
The Court's effort to "furthe[r] the ends of justice," ante at 476 U. S. 99 ,
and achieve hoped-for utopian bliss may be admired, but it is far
more likely to enlarge the evil "sporting contest" theory of
criminal justice roundly condemned by Roscoe Pound almost 80 years
ago to the day. See Pound, Causes of Popular
Dissatisfaction with the Administration of Justice, August 29,
1906, reprinted in The Pound Conference: Perspectives on Justice in
the Future 337 (A. Levin & R. Wheeler eds.1979). Pound warned
then that "too much of the current dissatisfaction has a just
origin in our judicial organization and procedure." Id. at
352. I am afraid that today's newly created constitutional right
will justly give rise to similar disapproval. Page 476 U. S. 132 III I also add my assent to JUSTICE WHITE's conclusion that today's
decision does not apply retroactively. Ante at 476 U. S. 102 (concurring); see also ante at 476 U. S. 111 (O'CONNOR, J., concurring). We held in Solem v. Stumes, 465 U. S. 638 , 465 U. S. 643 (1984), that

															"'[t]he criteria guiding resolution of the [retroactivity]
question implicate (a) the purpose to be served by the new
standards, (b) the extent of the reliance by law enforcement
authorities on the old standards, and (c) the effect on the
administration of justice of a retroactive application of the new
standards.' Stovall v. Denno, 388 U. S.
293 , 388 U. S. 297 (1967)."

															If we are to ignore Justice Harlan's admonition that making
constitutional changes prospective only "cuts this Court loose from
the force of precedent," Mackey v. United States, 401 U. S. 667 , 401 U. S. 680 (1971) (concurring in judgment), then all three of these factors
point conclusively to a nonretroactive holding. With respect to the
first factor, the new rule the Court announces today is not
designed to avert "the clear danger of convicting the innocent." Tehan v. United States ex rel. Shott, 382 U.
S. 406 , 382 U. S. 416 (1966). Second, it is readily apparent that "law enforcement
authorities and state courts have justifiably relied on a prior
rule of law. . . ." Solem, 465 U.S. at 465 U. S.
645 -646. Today's holding clearly "overrule[s] [a] prior
decision" and drastically "transform[s] standard practice." Id. at 465 U. S. 647 .
This fact alone "virtually compel[s]" the conclusion of
nonretroactivity. United States v. Johnson, 457 U.
S. 537 , 457 U. S.
549 -550 (1982). Third, applying today's decision
retroactively obviously would lead to a whole host of problems, if
not utter chaos. Determining whether a defendant has made a
" prima facie showing" of invidious intent, ante at 476 U. S. 97 ,
and, if so, whether the state has a sufficient "neutral
explanation" for its actions, ibid., essentially requires
reconstructing Page 476 U. S. 133 the entire voir dire, something that will be extremely
difficult even if undertaken soon after the close of the trial.
[ Footnote 4/12 ] In most cases,
therefore, retroactive application of today's decision will be "a
virtual impossibility." State v. Neil, 457 So. 2d
481 , 488 (Fla.1984).

															In sum, under our prior holdings, it is impossible to construct
even a colorable argument for retroactive application. The few
States that have adopted judicially created rules similar to that
announced by the Court today have all refused full retroactive
application. See People v. Wheeler, 22 Cal. 3d at 283, n.
31, 583 P.2d at 766, n. 31; State v. Neil, supra, at 488; Commonwealth v. Soares, 377 Mass. 461, 493, n. 38, 387
N.E.2d 499 , 518, n. 38, cert. denied, 444 U.S. 881
(1979). [ Footnote 4/13 ] I
therefore am persuaded by JUSTICE WHITE's position, ante at 476 U. S. 102 (concurring), that today's novel decision is not to be given
retroactive effect. IV An institution like the peremptory challenge that is part of the
fabric of our jury system should not be casually cast aside,
especially on a basis not raised or argued by the petitioner. As
one commentator aptly observed:

															"The real question is whether to tinker with a system, be it of
jury selection or anything else, that has done the job for
centuries. We stand on the shoulders of our ancestors, as Burke
said. It is not so much that the past is always worth preserving,
he argued, but rather that"

															"it is with infinite caution that any man ought to venture upon
pulling down an edifice, which has answered in any tolerable degree
for ages the common purposes Page 476 U. S. 134 of society. . . ."

															Younger, Unlawful Peremptory Challenges, 7 Litigation 23, 56
(Fall 1980). At the very least, this important case reversing
centuries of history and experience ought to be set for reargument
next Term.

															[ Footnote 4/1 ]

															In Colorado v. Connelly, JUSTICE BRENNAN, joined by
JUSTICE STEVENS, filed a memorandum objecting to this briefing of
an additional question, explaining that

															"it is hardly for this Court to 'second chair' the prosecutor to
alter his strategy or guard him from mistakes. Under this Court's
Rule 21.1(a), '[o]nly the questions set forth in the petition or
fairly included therein will be considered by the Court.' Given
petitioner's express disclaimer that [this] issue is presented,
that question obviously is not 'fairly included' in the question
submitted. The Court's direction that the parties address it anyway
makes meaningless in this case the provisions of this Rule and is
plainly cause for concern, particularly since it is clear that a
similar dispensation would not be granted a criminal defendant,
however strong his claim."

															474 U.S. at 1052. If the Court's limited step of directing
briefing on an additional point at the time certiorari was granted
was "cause for concern," I would think a fortiori that the
far more expansive action the Court takes today would warrant
similar concern.

															[ Footnote 4/2 ]

															JUSTICE STEVENS, joined by JUSTICE BRENNAN and JUSTICE MARSHALL,
dissented from the order directing reargument in New Jersey v.
T.L.O. They explained:

															"The single question presented to the Court has now been briefed
and argued. Evidently unable or unwilling to decide the question
presented by the parties, the Court, instead of dismissing the writ
of certiorari as improvidently granted, orders reargument directed
to the questions that [petitioner] decided not to bring here. . . .
Volunteering unwanted advice is rarely a wise course of
action."

															" * * * *" "I believe that the adversary process functions most effectively
when we rely on the initiative of lawyers, rather than the activism
of judges, to fashion the questions for review."

															468 U.S. at 1215-1216.

															JUSTICE STEVENS' proffered explanation notwithstanding, see
ante at 476 U. S. 109 (concurring opinion), I am at a loss to discern how one can
consistently hold these views and still reach the question the
Court reaches today.

															[ Footnote 4/3 ]

															This fact alone distinguishes the cases cited by JUSTICE STEVENS
as support for today's unprecedented action. See ante at 476 U. S. 111 ,
n. 5. In Bender v. Williamsport Area School Dist., 475 U. S. 534 , 475 U. S. 551 (1986) (BURGER, C.J., dissenting), Colorado v. Nunez, 465 U. S. 324 (1984) (WHITE, J., concurring), and Florida v. Casal, 462 U. S. 637 , 462 U. S. 639 (1983) (BURGER, C.J., concurring), the issues discussed were all
the primary issues advanced, briefed, and argued by the petitioners
in this Court or related directly to the Court's basis for deciding
the case. To be sure, some of the discussion in these separate
statements might be parsimoniously viewed as "[un]necessary to the
disposition of the case or petition." Ante at 476 U. S. 111 ,
n. 5. But under this approach, many dissenting opinions and
dissents from the denial of certiorari would have to be condemned
as well. More important, in none of these separate statements was
it even suggested that it would be proper to overturn a state court
judgment on issues that had not been briefed and argued by
petitioner in this Court, as the Court does today. Finally, in Colorado v. Connelly, 474 U. S. 1050 (1986), and New Jersey v. T.L.O., 468 U.
S. 1214 (1984), we directed briefing and argument on
particular questions before deciding them. Such a procedure serves
the desirable end of ensuring that the issues which the Court
wishes to consider will be fully briefed and argued. My suggestion
that the Court hear reargument of this case serves the same
end.

															[ Footnote 4/4 ]

															While all these distinctions might support a claim under
conventional equal protection principles, a defendant would also
have to establish standing to raise them before obtaining any
relief. See Alexander v. Louisiana, 405 U.
S. 625 , 405 U. S. 633 (1972).

															[ Footnote 4/5 ]

															The Court is also silent on whether a State may demonstrate that
its use of peremptories rests not merely on "assumptions," ante at 476 U. S. 97 ,
but on sociological studies or other similar foundations. See Saltzburg & Powers, Peremptory Challenges and the
Clash Between Impartiality and Group Representation, 41 Md.L.Rev.
337, 365, and n. 124 (1982). For "[i]f the assessment of a juror's
prejudices based on group affiliation is accurate, . . . then
counsel has exercised the challenge as it was intended -- to remove
the most partial jurors." Id. at 365.

															[ Footnote 4/6 ]

															"[E]very jurisdiction which has spoken to the matter, and
prohibited prosecution case-specific peremptory challenges on the
basis of cognizable group affiliation, has held that the defense
must likewise be so prohibited." United States v. Leslie, 783 F.2d 541, 565 (CA5 1986)
(en banc).

															[ Footnote 4/7 ]

															One court has warned that overturning Swain has "[t]he
potential for stretching out criminal trials that are already too
long, by making the voir dire a Title VII proceeding in
miniature." United States v. Clark, 737 F.2d 679, 682 (CA7
1984). That "potential" is clearly about to be realized.

															[ Footnote 4/8 ]

															It is worth observing that Congress has been unable to locate
the constitutional deficiencies in the peremptory challenge system
that the Court discerns today. As the Solicitor General explains in
urging a rejection of the Sixth Amendment issue presented by this
petition and an affirmance of the decision below,

															"[i]n reconciling the traditional peremptory challenge system
with the requirements of the Sixth Amendment, it is instructive to
consider the accommodation made by Congress in the Jury Selection
and Service Act of 1968, 28 U.S.C. 1861 et seq. . . .
[T]he House Report makes clear that . . ."

															"the bill leaves undisturbed the right of a litigant to exercise
his peremptory challenges to eliminate jurors for purely subjective
reasons."

															Brief for United States as Amicus Curiae 20, n. 11
(quoting H.R.Rep. No. 1076, 90th Cong., 2d Sess., 5-6 (1968)).

															[ Footnote 4/9 ]

															This question, required by Turner in certain capital
cases, demonstrates the inapplicability of traditional equal
protection analysis to a jury voir dire seeking an
impartial jury. Surely the question rests on generalized,
stereotypic racial notions that would be condemned on equal
protection grounds in other contexts.

															[ Footnote 4/10 ]

															The California Supreme Court has attempted to finesse this
problem by asserting that

															"discrimination is more often based on appearances than verified
racial descent, and a showing that the prosecution was
systematically excusing persons who appear to be Black would
establish a prima facie case"

															of racial discrimination. People v. Motton, 39 Cal. 3d
at 604, 704 P.2d at 180. This suggests, however, that proper
inquiry here concerns not the actual race of the jurors who are
excluded, but rather counsel's subjective impressions as to what
race they spring from. It is unclear just how a "record" of such
impressions is to be made.

															[ Footnote 4/11 ]

															Similar difficulties may lurk in this case on remand. The Court
states as fact that "a jury composed only of white persons was
selected." Ante at 476 U. S. 83 .
The only basis for the Court's finding is the prosecutor's
statement, in response to a question from defense counsel, that,
"[i]n looking at them, yes; it's an all-white jury." App. 3.

															It should also be underscored that the Court today does not hold that petitioner has established a " prima
facie case" entitling him to any form of relief. Ante at 476 U. S.
100 .

															[ Footnote 4/12 ]

															Petitioner concedes that it would be virtually impossible for
the prosecutor in this case to recall why he used his peremptory
challenges in the fashion he did. Brief for Petitioner 35.

															[ Footnote 4/13 ]

															Although Delaware has suggested that it might follow a rule like
that adopted by the Court today, see Riley v.
State, 496 A.2d
997 (1985), the issue of retroactive application of the rule
does not appear to have been litigated in a published decision.

															JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,
dissenting.

															The Court states, in the opening line of its opinion, that this
case involves only a reexamination of that portion of Swain v.
Alabama, 380 U. S. 202 (1965), concerning

															"the evidentiary burden placed on a criminal defendant who
claims that he has been denied equal protection through the State's
use of peremptory challenges to exclude members of his race from
the petit jury." Ante at 476 U. S. 82 (footnote omitted). But in reality the majority opinion deals with
much more than "evidentiary burden[s]." With little discussion and
less analysis, the Court also overrules one of the fundamental
substantive holdings of Swain, namely, that the State may
use its peremptory challenges to remove from the jury, on a
case-specific basis, prospective jurors of the same race as the
defendant. Because I find the Court's rejection of this holding
both ill-considered and unjustifiable under established principles
of equal protection, I dissent.

															In Swain, this Court carefully distinguished two
possible scenarios involving the State's use of its peremptory
challenges to exclude blacks from juries in criminal cases. In Part
III of the majority opinion, the Swain Court concluded
that the first of these scenarios, namely, the exclusion of
blacks

															"for reasons wholly unrelated to the outcome of the particular
case on trial . . . to deny the Negro the same right and
opportunity to participate in the administration of justice enjoyed
by the white population,"

															380 U.S. at 380 U. S. 224 ,
might violate the guarantees of equal protection. See id. at 380 U. S.
222 -228. The Court felt that the important and historic
purposes of the peremptory challenge were not furthered by the Page 476 U. S. 135 exclusion of blacks "in case after case, whatever the
circumstances, whatever the crime and whoever the defendant or
the victim may be. " Id. at 380 U. S. 223 (emphasis added). Nevertheless, the Court ultimately held that

															"the record in this case is not sufficient to demonstrate that
th[is] rule has been violated. . . . Petitioner has the burden of
proof, and he has failed to carry it." Id. at 380 U. S. 224 , 380 U. S. 226 .
Three Justices dissented, arguing that the petitioner's evidentiary
burden was satisfied by testimony that no black had ever served on
a petit jury in the relevant county. See id. at 380 U. S.
228 -247 (Goldberg, J., joined by Warren, C.J., and
Douglas, J., dissenting).

															Significantly, the Swain Court reached a very different
conclusion with respect to the second kind of peremptory challenge
scenario. In Part II of its opinion, the Court held that the
State's use of peremptory challenges to exclude blacks from a
particular jury based on the assumption or belief that they would
be more likely to favor a black defendant does not violate equal
protection. Id. at 380 U. S.
209 -222. JUSTICE WHITE, writing for the Court,
explained:

															"While challenges for cause permit rejection of jurors on a
narrowly specified, provable and legally cognizable basis of
partiality, the peremptory permits rejection for a real or
imagined partiality that is less easily designated or
demonstrable. Hayes v. Missouri, 120 U. S.
68 , 120 U. S. 70 [1887]. It is
often exercised upon the 'sudden impressions and unaccountable
prejudices we are apt to conceive upon the bare looks and gestures
of another,' Lewis \[v. United States , 146 U. S.
370 ,] 146 U. S. 376 [1892], upon a
juror's 'habits and associations,' Hayes v. Missouri,
supra, at 120 U. S. 70 , or upon the
feeling that 'the bare questioning [a juror's] indifference may
sometimes provoke a resentment,' Lewis, supra, at 146 U. S. 376 . It is no less
frequently exercised on grounds normally thought irrelevant to
legal proceedings or official action, namely, the race, religion,
nationality, occupation or affiliations of people Page 476 U. S. 136 summoned for jury duty. For the question a prosecutor or defense
counsel must decide is not whether a juror of a particular race or
nationality is in fact partial, but whether one from a different
group is less likely to be. . . . Hence veniremen are not always
judged solely as individuals for the purpose of exercising
peremptory challenges. Rather, they are challenged in light of the
limited knowledge counsel has of them, which may include their
group affiliations, in the context of the case to be tried.
With these considerations in mind, we cannot hold that the striking
of Negroes in a particular case is a denial of equal protection of
the laws. In the quest for an impartial and qualified jury, Negro
and white, Protestant and Catholic, are alike subject to being
challenged without cause. To subject the prosecutor's challenge in
any particular case to the demands and traditional standards of the
Equal Protection Clause would entail a radical change in the nature
and operation of the challenge. The challenge, pro tanto, would no longer be peremptory. . . ." Id. at 380 U. S.
220 -222 (emphasis added; footnotes omitted). At the
beginning of Part III of the opinion, the Swain Court
reiterated:

															"We have decided that it is permissible to insulate from inquiry
the removal of Negroes from a particular jury on the assumption
that the prosecutor is acting on acceptable considerations related
to the case he is trying, the particular defendant
involved, and the particular crime charged." Id. at 380 U. S. 223 (emphasis added).

															Even the Swain dissenters did not take issue with the
majority's position that the Equal Protection Clause does not
prohibit the State from using its peremptory challenges to exclude
blacks based on the assumption or belief that they would be partial
to a black defendant. The dissenters emphasized that their view
concerning the evidentiary burden facing a defendant who alleges an
equal protection claim based on the State's use of peremptory
challenges

															"would Page 476 U. S. 137 [not] mean that where systematic exclusion of Negroes from jury
service has not been shown, a prosecutor's motives are subject to
question or judicial inquiry when he excludes Negroes or any other
group from sitting on a jury in a particular case. " Id. at 380 U. S. 245 (Goldberg, J., dissenting) (emphasis added).

															The Court today asserts, however, that

															"the Equal Protection Clause forbids the prosecutor to challenge
potential jurors solely . . . on the assumption that black jurors
as a group will be unable impartially to consider the State's case
against a black defendant." Ante at 476 U. S. 89 .
Later, in discussing the State's need to establish a
nondiscriminatory basis for striking blacks from the jury, the
Court states that

															"the prosecutor may not rebut the defendant's prima
facie case of discrimination by stating merely that he
challenged jurors of the defendant's race on the assumption -- or
his intuitive judgment -- that they would be partial to the
defendant because of their shared race." Ante at 476 U. S. 97 .
Neither of these statements has anything to do with the
"evidentiary burden" necessary to establish an equal protection
claim in this context, and both statements are directly contrary to
the view of the Equal Protection Clause shared by the majority and
the dissenters in Swain. Yet the Court in the instant case
offers absolutely no analysis in support of its decision to
overrule Swain in this regard, and in fact does not
discuss Part II of the Swain opinion at all.

															I cannot subscribe to the Court's unprecedented use of the Equal
Protection Clause to restrict the historic scope of the peremptory
challenge, which has been described as "a necessary part of trial
by jury." Swain, 380 U.S. at 380 U. S. 219 .
In my view, there is simply nothing "unequal" about the State's
using its peremptory challenges to strike blacks from the jury in
cases involving black defendants, so long as such challenges are
also used to exclude whites in cases involving white defendants,
Hispanics in cases involving Hispanic defendants, Asians in cases
involving Asian defendants, and so Page 476 U. S. 138 on. This case-specific use of peremptory challenges by the State
does not single out blacks, or members of any other race for that
matter, for discriminatory treatment. [ Footnote 5/1 ] Such use of peremptories is, at best,
based upon seat-of-the-pants instincts, which are undoubtedly
crudely stereotypical and may in many cases be hopelessly mistaken.
But as long as they are applied across-the-board to jurors of all
races and nationalities, I do not see -- and the Court most
certainly has not explained -- how their use violates the Equal
Protection Clause.

															Nor does such use of peremptory challenges by the State infringe
upon any other constitutional interests. The Court does not suggest
that exclusion of blacks from the jury through the State's use of
peremptory challenges results in a violation of either the
fair-cross-section or impartiality component of the Sixth
Amendment. See ante at 476 U. S. 84 -85,
n. 4. And because the case-specific use of peremptory challenges by
the State does not deny blacks the right to serve as jurors in
cases involving nonblack defendants, it harms neither the excluded
jurors nor the remainder of the community. See ante at 476 U. S.
87 -88.

															The use of group affiliations, such as age, race, or occupation,
as a "proxy" for potential juror partiality, based on the
assumption or belief that members of one group are more likely to
favor defendants who belong to the same group, has long been
accepted as a legitimate basis for the State's exercise of
peremptory challenges. See Swain, supra; United States v.
Leslie, 783 F.2d 541 (CA5 1986) (en banc); United States
v. Carter, 528 F.2d 844 (CA8 1975), cert. denied, 425
U.S. 961 (1976). Indeed, given the need for reasonable Page 476 U. S. 139 limitations on the time devoted to voir dire, the use
of such "proxies" by both the State and the defendant [ Footnote 5/2 ] may be extremely useful in
eliminating from the jury persons who might be biased in one way or
another. The Court today holds that the State may not use its
peremptory challenges to strike black prospective jurors on this
basis without violating the Constitution. But I do not believe
there is anything in the Equal Protection Clause, or any other
constitutional provision, that justifies such a departure from the
substantive holding contained in Part II of Swain. Petitioner in the instant case failed to make a sufficient showing
to overcome the presumption announced in Swain that the
State's use of peremptory challenges was related to the context of
the case. I would therefore affirm the judgment of the court
below.

															[ Footnote 5/1 ]

															I note that the Court does not rely on the argument that,
because there are fewer "minorities" in a given population than
there are "majorities," the equal use of peremptory challenges
against members of "majority" and "minority" racial groups has an
unequal impact. The flaws in this argument are demonstrated in
Judge Garwood's thoughtful opinion for the en banc Fifth Circuit in United States v. Leslie, 783 F.2d 541, 558-561 (1986).

															[ Footnote 5/2 ] See, e.g., Commonwealth v. DiMatteo, 12 Mass.App. 547, 427 N.E.2d 754 (1981) (under State Constitution, trial judge
properly rejected white defendant's attempted peremptory challenge
of black prospective juror).