U.S. Supreme Court Edmonson v. Leesville Concrete Co.,
Inc., 500
U.S. 614 (1991) cg: 500
U.S. 614 *jury selection*parties*racial
discrimination*standing*state action* ct:Edmonson v. Leesville Concrete Co.,
Inc., 500 U. S. 614 (1991) �Edmonson v. Leesville Concrete Co., Inc.,

															�No. 89-7743

															�Argued Jan. 15, 1991

															�Decided June 3, 1991

															� 500
U.S. 614 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Petitioner Edmonson sued respondent Leesville Concrete Co. in
the District Court, alleging that Leesville's negligence had caused
him personal injury. During voir dire, Leesville used two
of its three peremptory challenges authorized by statute to remove
black persons from the prospective jury. Citing Batson v.
Kentucky, 476 U. S. 79 ,
Edmonson, who is black, requested that the court require Leesville
to articulate a race-neutral explanation for the peremptory
strikes. The court refused on the ground that Batson does
not apply in civil proceedings, and the impaneled jury, which
consisted of 11 white persons and 1 black, rendered a verdict
unfavorable to Edmonson. The Court of Appeals affirmed, holding
that a private litigant in a civil case can exercise peremptory
challenges without accountability for alleged racial
classifications. Held: A private litigant in a civil case may not use
peremptory challenges to exclude jurors on account of race. Pp. 500 U. S.
618 -631.

															(a) Race-based exclusion of potential jurors in a civil case
violates the excluded persons' equal protection rights. Cf.,
e.g., Powers v. Ohio, 499 U. S. 400 , 499 U. S. 402 .
Although the conduct of private parties lies beyond the
Constitution's scope in most instances, Leesville's exercise of
peremptory challenges was pursuant to a course of state action, and
is therefore subject to constitutional requirements under the
analytical framework set forth in Lugar v. Edmondson Oil
Co., 457 U. S. 922 , 457 U. S.
939 -942. First, the claimed constitutional deprivation
results from the exercise of a right or privilege having its source
in state authority, since Leesville would not have been able to
engage in the alleged discriminatory acts without 28 U.S.C. § 1870,
which authorizes the use of peremptory challenges in civil cases.
Second, Leesville must in all fairness be deemed a government actor
in its use of peremptory challenges. Leesville has made extensive
use of government procedures with the overt, significant assistance
of the government, see, e.g., Tulsa Professional Collection
Services, Inc. v. Pope, 485 U. S. 478 , 485 U. S. 486 ,
in that peremptory challenges have no utility outside the jury
trial system, which is created and governed by an elaborate set of
statutory provisions and administered solely by government
officials, including the trial judge, himself a state actor, who
exercises substantial control over voir dire and
effects Page 500 U. S. 615 the final and practical denial of the excluded individual's
opportunity to serve on the petit jury by discharging him or her.
Moreover, the action in question involves the performance of a
traditional governmental function, see, e.g., Terry v.
Adams, 345 U. S. 461 ,
since the peremptory challenge is used in selecting the jury, an
entity that is a quintessential governmental body having no
attributes of a private actor. Furthermore, the injury allegedly
caused by Leesville's use of peremptory challenges is aggravated in
a unique way by the incidents of governmental authority, see
Shelley v. Kramer, 334 U. S. 1 , since
the courtroom is a real expression of the government's
constitutional authority, and racial exclusion within its confines
compounds the racial insult inherent in judging a citizen by the
color of his or her skin. Pp. 500 U. S.
618 -628.

															(b) A private civil litigant may raise the equal protection
claim of a person whom the opposing party has excluded from jury
service on account of race. Just as in the criminal context, see Powers, supra, all three of the requirements for
third-party standing are satisfied in the civil context. First,
there is no reason to believe that the daunting barriers to suit by
an excluded criminal juror, see id. at 499 U. S. 414 ,
would be any less imposing simply because the person was excluded
from civil jury service. Second, the relation between the excluded
venireperson and the litigant challenging the exclusion is just as
close in the civil as it is in the criminal context. See
id. at 499 U. S. 413 .
Third, a civil litigant can demonstrate that he or she has suffered
a concrete, redressable injury from the exclusion of jurors on
account of race, in that racial discrimination in jury selection
casts doubt on the integrity of the judicial process and places the
fairness of the proceeding in doubt. See id. at 499 U. S. 411 .
Pp. 500 U. S.
628 -631.

															(c) The case is remanded for a determination whether Edmonson
has established a prima facie case of racial
discrimination under the approach set forth in Batson,
supra, 476 U.S. at 476 U. S. 96 -97,
such that Leesville would be required to offer race-neutral
explanations for its peremptory challenges. P. 500 U. S.
631 .

															895 F.2d 218 (CA5 1990), reversed and remanded.

															KENNEDY, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, STEVENS, and SOUTER, JJ., joined. O'CONNOR, J.,
filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA,
J., joined, post, p. 500 U. S. 631 .
SCALIA, J., filed a dissenting opinion, post, 500 U.
S. 644. Page 500 U. S. 616 JUSTICE KENNEDY delivered the opinion of the Court.

															We must decide in the case before us whether a private litigant
in a civil case may use peremptory challenges to exclude jurors on
account of their race. Recognizing the impropriety of racial bias
in the courtroom, we hold the race-based exclusion violates the
equal protection rights of the challenged jurors. This civil case
originated in a United States District Court, and we apply the
equal protection component of the Fifth Amendment's Due Process
Clause. See Bolling v. Sharpe, 347 U.
S. 497 (1954). I Thaddeus Donald Edmonson, a construction worker, was injured in
a job-site accident at Fort Polk, Louisiana, a federal enclave.
Edmonson sued Leesville Concrete Company for negligence in the
United States District Court for the Western District of Louisiana,
claiming that a Leesville employee permitted one of the company's
trucks to roll backward and pin him against some construction
equipment. Edmonson invoked his Seventh Amendment right to a trial
by jury.

															During voir dire, Leesville used two of its three
peremptory challenges authorized by statute to remove black persons
from the prospective jury. Citing our decision in Batson v.
Kentucky, 476 U. S. 79 (1986), Edmonson, who is Page 500 U. S. 617 himself black, requested that the District Court require
Leesville to articulate a race-neutral explanation for striking the
two jurors. The District Court denied the request on the ground
that Batson does not apply in civil proceedings. As
impaneled, the jury included 11 white persons and 1 black person.
The jury rendered a verdict for Edmonson, assessing his total
damages at $90,000. It also attributed 80 of the fault to
Edmonson's contributory negligence, however, and awarded him the
sum of $18,000.

															Edmonson appealed, and a divided panel of the Court of Appeals
for the Fifth Circuit reversed, holding that our opinion in Batson applies to a private attorney representing a
private litigant, and that peremptory challenges may not be used in
a civil trial for the purpose of excluding jurors on the basis of
race. 860 F.2d 1308 (1989). The Court of Appeals panel held that
private parties become state actors when they exercise peremptory
challenges, and that to limit Batson to criminal cases

															"would betray Batson's fundamental principle [that] the
state's use, toleration, and approval of peremptory challenges
based on race violates the equal protection clause." Id. at 1314. The panel remanded to the trial court to
consider whether Edmonson had established a prima facie case of racial discrimination under Batson. The full court then ordered rehearing en banc. A divided en banc
panel affirmed the judgment of the District Court, holding that a
private litigant in a civil case can exercise peremptory challenges
without accountability for alleged racial classifications. 895 F.2d
218 (CA5 1990). The court concluded that the use of peremptories by
private litigants does not constitute state action and, as a
result, does not implicate constitutional guarantees. The dissent
reiterated the arguments of the vacated panel opinion. The courts
of appeals have divided on the issue. See Dunham v. Frank's
Nursery & Crafts, Inc., 919 F.2d 1281 (CA7 1990) (private
litigant may not use peremptory challenges to exclude venirepersons
on account of race); Fludd v. Dykes, 863 Page 500 U. S. 618 F.2d 822 (CA11 1989) (same). Cf. Dias v. Sky Chefs,
Inc., 919 F.2d 1870 (CA9 1990) (corporation may not raise a Batson -type objection in a civil trial); United States
v. De Gross, 913 F.2d 1417 (CA9 1990) (government may raise a Batson -type objection in a criminal case), reh'g en
banc ordered, 930 F.2d 695 (1991); Reynolds v. Little
Rock, 893 F.2d 1004 (CA8 1990) (when government is involved in
civil litigation, it may not use its peremptory challenges in a
racially discriminatory manner). We granted certiorari, 498 U. S. 497 (1990), and now reverse the Court of Appeals. II A In Powers v. Ohio, 499 U. S. 400 (1991), we held that a criminal defendant, regardless of his or her
race, may object to a prosecutor's race-based exclusion of persons
from the petit jury. Our conclusion rested on a two-part analysis.
First, following our opinions in Batson and in Carter
v. Jury Commission of Greene County, 396 U.
S. 320 (1970), we made clear that a prosecutor's
race-based peremptory challenge violates the equal protection
rights of those excluded from jury service. 499 U.S. at 499 U. S.
407 -409. Second, we relied on well-established rules of
third-party standing to hold that a defendant may raise the
excluded jurors' equal protection rights. Id. at 499 U. S. 410 U.S. 415. Powers relied upon over a century of jurisprudence
dedicated to the elimination of race prejudice within the jury
selection process. See, e.g., Batson, supra, 476 U.S. at 476 U. S. 84 ; Swain v. Alabama, 380 U. S. 202 ,
203-204 (1965); Carter, supra, 396 U.S. at 396 U. S.
329 -330; Neal v. Delaware, 103 U.
S. 370 , 386 (1881); Strauder v. West Virginia, 100 U. S. 303 (1880). While these decisions were, for the most part, directed at
discrimination by a prosecutor or other government officials in the
context of criminal proceedings, we have not intimated that race
discrimination is permissible in civil proceedings. See Thiel
v. Southern Pacific Co., 328 U. S. 217 , 328 U. S.
220 -221 (1946). Indeed, Page 500 U. S. 619 discrimination on the basis of race in selecting a jury in a
civil proceeding harms the excluded juror no less than
discrimination in a criminal trial. See id. at 328 U. S. 220 .
In either case, race is the sole reason for denying the excluded
venireperson the honor and privilege of participating in our system
of justice.

															That an act violates the Constitution when committed by a
government official, however, does not answer the question whether
the same act offends constitutional guarantees if committed by a
private litigant or his attorney. The Constitution's protections of
individual liberty and equal protection apply in general only to
action by the government. National Collegiate Athletic Assn. v.
Tarkanian, 488 U. S. 179 , 488 U. S. 191 (1988). Racial discrimination, though invidious in all contexts,
violates the Constitution only when it may be attributed to state
action. Moose Lodge No. 107 v. Irvis, 407 U.
S. 163 , 407 U. S. 172 (1972). Thus, the legality of the exclusion at issue here turns on
the extent to which a litigant in a civil case may be subject to
the Constitution's restrictions.

															The Constitution structures the National Government, confines
its actions, and, in regard to certain individual liberties and
other specified matters, confines the actions of the States. With a
few exceptions, such as the provisions of the Thirteenth Amendment,
constitutional guarantees of individual liberty and equal
protection do not apply to the actions of private entities. Tarkanian, supra, 488 U.S. at 488 U. S. 191 ; Flagg Bros, Inc. v. Brooks, 436 U.
S. 149 , 436 U. S. 156 (1978). This fundamental limitation on the scope of constitutional
guarantees "preserves an area of individual freedom by limiting the
reach of federal law" and "avoids imposing on the State, its
agencies or officials, responsibility for conduct for which they
cannot fairly be blamed." Lugar v. Edmondson Oil Co., 457 U. S. 922 , 457 U. S.
936 -937 (1982). One great object of the Constitution is
to permit citizens to structure their private relations as they
choose subject only to the constraints of statutory or decisional
law. Page 500 U. S. 620 To implement these principles, courts must consider from time to
time where the governmental sphere ends and the private sphere
begins. Although the conduct of private parties lies beyond the
Constitution's scope in most instances, governmental authority may
dominate an activity to such an extent that its participants must
be deemed to act with the authority of the government and, as a
result, be subject to constitutional constraints. This is the
jurisprudence of state action, which explores the "essential
dichotomy" between the private sphere and the public sphere, with
all its attendant constitutional obligations. Moose Lodge,
supra, 407 U.S. at 407 U. S.
172 .

															We begin our discussion within the framework for state action
analysis set forth in Lugar, supra, 457 U.S. at 457 U. S. 937 .
There we considered the state action question in the context of a
due process challenge to a State's procedure allowing private
parties to obtain prejudgment attachments. We asked first whether
the claimed constitutional deprivation resulted from the exercise
of a right or privilege having its source in state authority, 457
U.S. at 457 U. S.
939 -941; and second, whether the private party charged
with the deprivation could be described in all fairness as a state
actor, id. at 457 U. S.
941 -942.

															There can be no question that the first part of the Lugar
inquiry is satisfied here. By their very nature, peremptory
challenges have no significance outside a court of law. Their sole
purpose is to permit litigants to assist the government in the
selection of an impartial trier of fact. While we have recognized
the value of peremptory challenges in this regard, particularly in
the criminal context, see Batson, 476 U.S. at 476 U. S. 98 -99,
there is no constitutional obligation to allow them. Ross v.
Oklahoma, 487 U. S. 81 , 487 U. S. 88 (1988); Stilson v. United States, 250 U.
S. 583 , 250 U. S. 586 (1919). Peremptory challenges are permitted only when the
government, by statute or decisional law, deems it appropriate to
allow parties to exclude a given number of persons who otherwise
would satisfy the requirements for service on the petit jury. Page 500 U. S. 621 Legislative authorizations, as well as limitations, for the use
of peremptory challenges date as far back as the founding of the
Republic; and the common law origins of peremptories predate that. See Holland v. Illinois, 493 U. S. 474 , 493 U. S. 481 (1990); Swain, 380 U.S. at 380 U. S.
212 -217. Today, in most jurisdictions, statutes or rules
make a limited number of peremptory challenges available to parties
in both civil and criminal proceedings. In the case before us, the
challenges were exercised under a federal statute that provides, inter alia: "In civil cases, each party shall be entitled to three
peremptory challenges. Several defendants or several plaintiffs may
be considered as a single party for the purposes of making
challenges, or the court may allow additional peremptory challenges
and permit them to be exercised separately or jointly."

															28 U.S.C. § 1870. Without this authorization, granted by an Act
of Congress itself, Leesville would not have been able to engage in
the alleged discriminatory acts.

															Given that the statutory authorization for the challenges
exercised in this case is clear, the remainder of our state action
analysis centers around the second part of the Lugar test,
whether a private litigant, in all fairness, must be deemed a
government actor in the use of peremptory challenges. Although we
have recognized that this aspect of the analysis is often a
fact-bound inquiry, see Lugar, supra, 457 U.S. at 457 U. S. 939 ,
our cases disclose certain principles of general application. Our
precedents establish that, in determining whether a particular
action or course of conduct is governmental in character, it is
relevant to examine the following: the extent to which the actor
relies on governmental assistance and benefits, see Tulsa
Professional Collection Services, Inc. v. Pope, 485 U.
S. 478 (1988); Burton v. Wilmington Parking
Authority, 365 U. S. 715 (1961); whether the the actor is performing a traditional
governmental function, see Terry v. Adams, 345 U.
S. 461 (1953); Marsh v. Alabama, 326 U.
S. 501 (1946); cf. 483 U. S. Inc. v.
United States Olympic Page 500 U. S. 622 Committee, 483 U. S. 522 , 483 U. S.
544 -545 (1987); and whether the injury caused is
aggravated in a unique way by the incidents of governmental
authority, see Shelley v. Kraemer, 334 U. S.
1 (1948). Based on our application of these three
principles to the circumstances here, we hold that the exercise of
peremptory challenges by the defendant in the District Court was
pursuant to a course of state action.

															Although private use of state-sanctioned private remedies or
procedures does not rise, by itself, to the level of state action, Tulsa Professional, supra, 485 U.S. at 485 U. S. 485 ,
our cases have found state action when private parties make
extensive use of state procedures with "the overt, significant
assistance of state officials." 485 U.S. at 485 U. S. 486 ; see Lugar v. Edmondson Oil Co., 457 U.
S. 922 (1982); Sniadach v. Family Finance
Corp., 395 U. S. 337 (1969). It cannot be disputed that, without the overt, significant
participation of the government, the peremptory challenge system,
as well as the jury trial system of which it is a part, simply
could not exist. As discussed above, peremptory challenges have no
utility outside the jury system, a system which the government
alone administers. In the federal system, Congress has established
the qualifications for jury service, see 28 U.S.C. § 1865, and has
outlined the procedures by which jurors are selected. To this end,
each district court in the federal system must adopt a plan for
locating and summoning to the court eligible prospective jurors. 28
U.S.C. § 1863; see, e.g., Jury Plan for the United States
District Court for the Western District of Louisiana (on file with
Administrative Office of United States Courts). This plan, as with
all other trial court procedures, must implement statutory policies
of random juror selection from a fair cross-section of the
community, 28 U.S.C. § 1861, and nonexclusion on account of race,
color, religion, sex, national origin, or economic status, 18
U.S.C. § 243; 28 U.S.C. § 1862. Statutes prescribe many of the
details of the jury plan, 28 U.S.C. § 1863, defining the jury
wheel, § 1863(b)(4), voter lists, §§ 1863(b)(2), Page 500 U. S. 623 1869(c), and jury commissions, § 1863(b)(1). A statute also
authorizes the establishment of procedures for assignment to grand
and petit juries, § 1863(b)(8), and for lawful excuse from jury
service, §§ 1863(b)(5), (6).

															At the outset of the selection process, prospective jurors must
complete jury qualification forms as prescribed by the
Administrative Office of the United States Courts. See 28
U.S.C. § 1864. Failure to do so may result in fines and
imprisonment, as might a willful misrepresentation of a material
fact in answering a question on the form. Ibid. In a typical case,
counsel receive these forms and rely on them when exercising their
peremptory strikes. See G. Bermant, Jury Selection
Procedures in United States District Courts 7-8, (Federal Judicial
Center 1982). The Clerk of the United States District Court, a
federal official, summons potential jurors from their employment or
other pursuits. They are required to travel to a United States
courthouse, where they must report to juror lounges, assembly
rooms, and courtrooms at the direction of the court and its
officers. Whether or not they are selected for a jury panel,
summoned jurors receive a per diem fixed by statute for
their service. 28 U.S.C. § 1871.

															The trial judge exercises substantial control over voir
dire in the federal system. See Fed.Rule Civ.Proc.
47. The judge determines the range of information that may be
discovered about a prospective juror, and so affects the exercise
of both challenges for cause and peremptory challenges. In some
cases, judges may even conduct the entire voir dire by
themselves, a common practice in the District Court where the
instant case was tried. See Louisiana Rules of Court,
Local Rule W.D.La. 13.02 (1990). The judge oversees the exclusion
of jurors for cause, in this way determining which jurors remain
eligible for the exercise of peremptory strikes. In cases involving
multiple parties, the trial judge decides how peremptory challenges
shall be allocated among them. 28 U.S.C. § 1870. When a lawyer
exercises a peremptory Page 500 U. S. 624 challenge, the judge advises the juror he or she has been
excused.

															As we have outlined here, a private party could not exercise its
peremptory challenges absent the overt, significant assistance of
the court. The government summons jurors, constrains their freedom
of movement, and subjects them to public scrutiny and examination.
The party who exercises a challenge invokes the formal authority of
the court, which must discharge the prospective juror, thus
effecting the "final and practical denial" of the excluded
individual's opportunity to serve on the petit jury. Virginia
v. Rives, 100 U. S. 313 , 100 U. S. 322 (1880). Without the direct and indispensable participation of the
judge, who beyond all question is a state actor, the peremptory
challenge system would serve no purpose. By enforcing a
discriminatory peremptory challenge, the court "has not only made
itself a party to the [biased act], but has elected to place its
power, property and prestige behind the [alleged] discrimination." Burton v. Wilmington Parking Authority, 365 U.S. at 365 U. S. 725 .
In so doing, the government has "create[d] the legal framework
governing the [challenged] conduct," National Collegiate
Athletic Assn., 488 U.S. at 488 U. S. 192 ,
and in a significant way has involved itself with invidious
discrimination.

															In determining Leesville's state actor status, we next consider
whether the action in question involves the performance of a
traditional function of the government. A traditional function of
government is evident here. The peremptory challenge is used in
selecting an entity that is a quintessential governmental body,
having no attributes of a private actor. The jury exercises the
power of the court and of the government that confers the court's
jurisdiction. As we noted in Powers, the jury system performs the
critical governmental functions of guarding the rights of litigants
and "insur[ing] continued acceptance of the laws by all of the
people." 499 U.S. at 499 U. S. 407 .
In the federal system, the Constitution itself commits the trial of
facts in a civil cause to the Page 500 U. S. 625 jury. Should either party to a cause invoke its Seventh
Amendment right, the jury becomes the principal factfinder, charged
with weighing the evidence, judging the credibility of witnesses,
and reaching a verdict. The jury's factual determinations as a
general rule are final. Basham v. Pennsylvania R. Co., 372 U. S. 699 (1963). In some civil cases, as we noted earlier this Term, the
jury can weigh the gravity of a wrong and determine the degree of
the government's interest in punishing and deterring willful
misconduct. See Pacific Mutual Life Ins. Co. v. Haslip, 499 U. S. 1 (1991).
A judgment based upon a civil verdict may be preclusive of issues
in a later case, even where some of the parties differ. See
Allen v. McCurry, 449 U. S. 90 (1980). And in all jurisdictions, a true verdict will be
incorporated in a judgment enforceable by the court. These are
traditional functions of government, not of a select, private group
beyond the reach of the Constitution.

															If a government confers on a private body the power to choose
the government's employees or officials, the private body will be
bound by the constitutional mandate of race-neutrality. Cf.
Tarkanian, 488 U.S. at 488 U. S.
192 -193; Rendell-Baker v. Kohn, 457 U.
S. 830 (1982). At least a plurality of the Court
recognized this principle in Terry v. Adams, 345 U.
S. 461 (1953). There we found state action in a scheme
in which a private organization known as the Jaybird Democratic
Association conducted whites-only elections to select candidates to
run in the Democratic primary elections in Ford Bend County, Texas.
The Jaybird candidate was certain to win the Democratic primary,
and the Democratic candidate was certain to win the general
election. Justice Clark's concurring opinion drew from Smith v.
Allwright, 321 U. S. 649 , 321 U. S. 664 (1944), the principle that "any part of the machinery for
choosing officials' becomes subject to the Constitution's
constraints." Terry, supra, 345 U.S. at 345 U. S. 481 .
The concurring opinion concluded: Page 500 U. S. 626 "[W]hen a state structures its electoral apparatus in a form
which devolves upon a political organization the uncontested choice
of public officials, that organization itself, in whatever
disguise, takes on those attributes of government which draw the
Constitution's safeguards into play."

															345 U.S. at 345 U. S.
484 .

															The principle that the selection of state officials, other than
through election by all qualified voters, may constitute state
action applies with even greater force in the context of jury
selection through the use of peremptory challenges. Though the
motive of a peremptory challenge may be to protect a private
interest, the objective of jury selection proceedings is to
determine representation on a governmental body. Were it not for
peremptory challenges, there would be no question that the entire
process of determining who will serve on the jury constitutes state
action. The fact that the government delegates some portion of this
power to private litigants does not change the governmental
character of the power exercised. The delegation of authority that
in Terry occurred without the aid of legislation occurs here
through explicit statutory authorization.

															We find respondent's reliance on Polk County v. Dodson, 454 U. S. 312 (1981), unavailing. In that case, we held that a public defender is
not a state actor in his general representation of a criminal
defendant, even though he may be in his performance of other
official duties. See id. at 454 U. S. 325 ; Branti v. Finkel, 445 U. S. 507 , 445 U. S. 519 (1980). While recognizing the employment relation between the
public defender and the government, we noted that the relation is
otherwise adversarial in nature. 454 U.S. at 454 U. S. 323 ,
n. 13.

															"[A] defense lawyer is not, and by the nature of his function
cannot be, the servant of an administrative superior. Held to the
same standards of competence and integrity as a private lawyer, . .
. a public defender works under canons of professional
responsibility that mandate his exercise of independent judgment on
behalf of the client." Id. at 454 U. S.
321 . Page 500 U. S. 627 In the ordinary context of civil litigation in which the
government is not a party, an adversarial relation does not exist
between the government and a private litigant. In the jury
selection process, the government and private litigants work for
the same end. Just as a government employee was deemed a private
actor because of his purpose and functions in Dodson, so here a
private entity becomes a government actor for the limited purpose
of using peremptories during jury selection. The selection of
jurors represents a unique governmental function delegated to
private litigants by the government and attributable to the
government for purposes of invoking constitutional protections
against discrimination by reason of race.

															Our decision in West v. Atkins, 487 U. S.
42 (1988), provides a further illustration. We held
there that a private physician who contracted with a state prison
to attend to the inmates' medical needs was a state actor. He was
not on a regular state payroll, but we held his

															"function[s] within the state system, not the precise terms of
his employment, [determined] whether his actions can fairly be
attributed to the State." Id. at 487 U. S. 55 -56.
We noted that:

															"Under state law, the only medical care West could receive for
his injury was that provided by the State. If Doctor Atkins misused
his power by demonstrating deliberate indifference to West's
serious medical needs, the resultant deprivation was caused, in a
sense relevant for state action inquiry, by the State's exercise of
its right to punish West by incarceration and to deny him a venue
independent of the State to obtain needed medical care." Id. at 487 U. S.
55 .

															In the case before us, the parties do not act pursuant to any
contractual relation with the government. Here, as in most civil
cases, the initial decision whether to sue at all, the selection of
counsel, and any number of ensuing tactical choices in the course
of discovery and trial may be without the requisite governmental
character to be deemed state Page 500 U. S. 628 action. That cannot be said of the exercise of peremptory
challenges, however; when private litigants participate in the
selection of jurors, they serve an important function within the
government, and act with its substantial assistance. If peremptory
challenges based on race were permitted, persons could be required
by summons to be put at risk of open and public discrimination as a
condition of their participation in the justice system. The injury
to excluded jurors would be the direct result of governmental
delegation and participation.

															Finally, we note that the injury caused by the discrimination is
made more severe because the government permits it to occur within
the courthouse itself. Few places are a more real expression of the
constitutional authority of the government than a courtroom, where
the law itself unfolds. Within the courtroom, the government
invokes its laws to determine the rights of those who stand before
it. In full view of the public, litigants press their cases,
witnesses give testimony, juries render verdicts, and judges act
with the utmost care to ensure that justice is done.

															Race discrimination within the courtroom raises serious
questions as to the fairness of the proceedings conducted there.
Racial bias mars the integrity of the judicial system, and prevents
the idea of democratic government from becoming a reality. Rose
v. Mitchell, 443 U. S. 545 , 443 U. S. 556 (1979); Smith v. Texas, 311 U. S. 128 , 311 U. S. 130 (1940). In the many times we have addressed the problem of racial
bias in our system of justice, we have not

															"questioned the premise that racial discrimination in the
qualification or selection of jurors offends the dignity of persons
and the integrity of the courts." Powers, 499 U.S. at 499 U. S. 402 .
To permit racial exclusion in this official forum compounds the
racial insult inherent in judging a citizen by the color of his or
her skin. B Having held that in a civil trial exclusion on account of race
violates a prospective juror's equal protection rights, we
consider Page 500 U. S. 629 whether an opposing litigant may raise the excluded person's
rights on his or her behalf. As we noted in Powers: "[I]n the ordinary course, a litigant must assert his or her own
legal rights and interests, and cannot rest a claim to relief on
the legal rights or interests of third parties." Id. at 499 U. S. 410 .
We also noted, however, that this fundamental restriction on
judicial authority admits of "certain, limited exceptions," ibid., and that a litigant may raise a claim on behalf of
a third party if the litigant can demonstrate that he or she has
suffered a concrete, redressable injury, that he or she has a close
relation with the third party, and that there exists some hindrance
to the third party's ability to protect his or her own interests.
All three of these requirements for third-party standing were held
satisfied in the criminal context, and they are satisfied in the
civil context as well.

															Our conclusion in Powers that persons excluded from jury service
will be unable to protect their own rights applies with equal force
in a civil trial. While individual jurors subjected to peremptory
racial exclusion have the right to bring suit on their own behalf,
"[t]he barriers to a suit by an excluded juror are daunting." Id. at 499 U. S. 414 .
We have no reason to believe these barriers would be any less
imposing simply because a person was excluded from jury service in
a civil proceeding. Likewise, we find the relation between the
excluded venireperson and the litigant challenging the exclusion to
be just as close in the civil context as in a criminal trial.
Whether in a civil or criminal proceeding, " voir dire permits a party to establish a relation, if not a bond of trust,
with the jurors," a relation that "continues throughout the entire
trial." Id. at 499 U. S. 413 .
Exclusion of a juror on the basis of race severs that relation in
an invidious way.

															We believe the only issue that warrants further consideration in
this case is whether a civil litigant can demonstrate a sufficient
interest in challenging the exclusion of jurors on account of race.
In Powers, we held:

															"The discriminatory use of peremptory challenges by the
prosecution causes a criminal defendant cognizable Page 500 U. S. 630 injury, and the defendant has a concrete interest in challenging
the practice. See Allen v. Hardy , 478 U.S.
[255], at 478 U. S. 259 (1986)
(recognizing a defendant's interest in 'neutral jury selection
procedures'). This is not because the individual jurors dismissed
by the prosecution may have been predisposed to favor the
defendant; if that were true, the jurors might have been excused
for cause. Rather, it is because racial discrimination in the
selection of jurors 'casts doubt on the integrity of the judicial
process,' Rose v. Mitchell, [ supra at 443 U. S. 556 ], and places
the fairness of a criminal proceeding in doubt." Id. at 499 U. S.
411 .

															The harms we recognized in Powers are not limited to
the criminal sphere. A civil proceeding often implicates
significant rights and interests. Civil juries, no less than their
criminal counterparts, must follow the law and act as impartial
factfinders. And, as we have observed, their verdicts, no less than
those of their criminal counterparts, become binding judgments of
the court. Racial discrimination has no place in the courtroom,
whether the proceeding is civil or criminal. See Thiel v.
Southern Pacific Co., 328 U.S. at 328 U. S. 220 .
Congress has so mandated by prohibiting various discriminatory acts
in the context of both civil and criminal trials. See 18
U.S.C. § 243; 28 U.S.C. §§ 1861, 1862. The Constitution demands
nothing less. We conclude that courts must entertain a challenge to
a private litigant's racially discriminatory use of peremptory
challenges in a civil trial.

															It may be true that the role of litigants in determining the
jury's composition provides one reason for wide acceptance of the
jury system and of its verdicts. But if race stereotypes are the
price for acceptance of a jury panel as fair, the price is too high
to meet the standard of the Constitution. Other means exist for
litigants to satisfy themselves of a jury's impartiality without
using skin color as a test. If our society is to continue to
progress as a multiracial democracy, it must recognize that the
automatic invocation of race stereotypes Page 500 U. S. 631 retards that progress, and causes continued hurt and injury. By
the dispassionate analysis which is its special distinction, the
law dispels fears and preconceptions respecting racial attitudes.
The quiet rationality of the courtroom makes it an appropriate
place to confront race-based fears or hostility by means other than
the use of offensive stereotypes. Whether the race generality
employed by litigants to challenge a potential juror derives from
open hostility or from some hidden and unarticulated fear, neither
motive entitles the litigant to cause injury to the excused juror.
And if a litigant believes that the prospective juror harbors the
same biases or instincts, the issue can be explored in a rational
way that consists with respect for the dignity of persons, without
the use of classifications based on ancestry or skin color. III It remains to consider whether a prima facie case of
racial discrimination has been established in the case before us,
requiring Leesville to offer race-neutral explanations for its
peremptory challenges. In Batson, we held that determining
whether a prima facie case has been established requires
consideration of all relevant circumstances, including whether
there has been a pattern of strikes against members of a particular
race. 476 U.S. at 476 U. S. 96 -97.
The same approach applies in the civil context, and we leave it to
the trial courts in the first instance to develop evidentiary rules
for implementing our decision.

															The judgment is reversed, and the case is remanded for further
proceedings consistent with our opinion. It is so ordered. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, dissenting.

															The Court concludes that the action of a private attorney
exercising a peremptory challenge is attributable to the
government, and therefore may compose a constitutional
violation. Page 500 U. S. 632 This conclusion is based on little more than that the challenge
occurs in the course of a trial. Not everything that happens in a
courtroom is state action. A trial, particularly a civil trial, is,
by design, largely a stage on which private parties may act; it is
a forum through which they can resolve their disputes in a peaceful
and ordered manner. The government erects the platform; it does not
thereby become responsible for all that occurs upon it. As much as
we would like to eliminate completely from the courtroom the
specter of racial discrimination, the Constitution does not sweep
that broadly. Because I believe that a peremptory strike by a
private litigant is fundamentally a matter of private choice, and
not state action, I dissent. I In order to establish a constitutional violation, Edmonson must
first demonstrate that Leesville's use of a peremptory challenge
can fairly be attributed to the government. Unfortunately, our
cases deciding when private action might be deemed that of the
state have not been a model of consistency. Perhaps this is because
the state action determination is so closely tied to the "framework
of the peculiar facts or circumstances present." See Burton v.
Wilmington Parking Authority, 365 U.
S. 715 , 365 U. S. 726 (1961). Whatever the reason, and despite the confusion, a coherent
principle has emerged. We have stated the rule in various ways, but
at base,

															"constitutional standards are invoked only when it can be said
that the [government] is responsible for the specific
conduct of which the plaintiff complains." Blum v. Yaretsky, 457 U. S. 991 , 457 U. S.
1004 (1982). Constitutional "liability attaches only to
those wrongdoers who carry a badge of authority of [the
government] and represent it in some capacity.'" National
Collegiate Athletic Assn. v. Tarkanian, 488 U.
S. 179 , 488 U. S. 191 (1988), quoting Monroe v. Pape, 365 U.
S. 167 , 365 U. S. 172 (1961). Page 500 U. S. 633 The Court concludes that this standard is met in the present
case. It rests this conclusion primarily on two empirical
assertions. First, that private parties use peremptory challenges
with the "overt, significant participation of the government." Ante at 500 U. S. 620 .
Second, that the use of a peremptory challenge by a private party
"involves the performance of a traditional function of the
government." Ante at 500 U. S. . Neither of these assertions is correct. A The Court begins with a perfectly accurate definition of the
peremptory challenge. Peremptory challenges "allow parties to
exclude a given number of persons who otherwise would satisfy the
requirements for service on the petit jury." Ante at 500 U. S. . This description is worth more careful analysis, for it belies the
Court's later conclusions about the peremptory.

															The peremptory challenge "allow[s] parties," in this case
private parties, to exclude potential jurors. It is the nature of a
peremptory that its exercise is left wholly within the discretion
of the litigant. The purpose of this longstanding practice is to
establish for each party an " arbitrary and capricious species
of challenge'" whereby the "`sudden impressions and unaccountable
prejudices we are apt to conceive upon the bare looks and gestures
of another'" may be acted upon. Lewis v. United States, 146 U. S. 370 , 146 U. S. 376 (1892), quoting 4 W. Blackstone, Commentaries *353. By allowing the
litigant to strike jurors for even the most subtle of discerned
biases, the peremptory challenge fosters both the perception and
reality of an impartial jury. Ibid.; Hayes v. Missouri, 120 U. S. 68 , 120 U. S. 70 (1887); Swain v. Alabama, 380 U.
S. 202 , 380 U. S. 219 (1965); Holland v. Illinois, 493 U.
S. 474 , 493 U. S.
481 -482 (1990). In both criminal and civil trials, the
peremptory challenge is a mechanism for the exercise of private
choice in the pursuit of fairness. The peremptory is, by
design, Page 500 U. S. 634 an enclave of private action in a government-managed
proceeding.

															The Court amasses much ostensible evidence of the Federal
Government's "overt, significant participation" in the peremptory
process. See ante at 500 U. S. 624 .
Most of this evidence is irrelevant to the issue at hand. The bulk
of the practices the Court describes -- the establishment of
qualifications for jury service, the location and summoning of
perspective jurors, the jury wheel, the voter lists, the jury
qualification forms, the per diem for jury service -- are
independent of the statutory entitlement to peremptory strikes, or
of their use. All of this government action is in furtherance of
the Government's distinct obligation to provide a qualified jury;
the Government would do these things even if there were no
peremptory challenges. All of this activity, as well as the trial
judge's control over voir dire, see ante at 500 U. S.
623 -624, are merely prerequisites to the use of a
peremptory challenge; they do not constitute participation in the
challenge. That these actions may be necessary to a peremptory
challenge -- in the sense that there could be no such challenge
without a venire from which to select -- no more makes the
challenge state action than the building of roads and provision of
public transportation makes state action of riding on a bus.

															The entirety of the Government's actual participation in the
peremptory process boils down to a single fact: "When a lawyer
exercises a peremptory challenge, the judge advises the juror he or
she has been excused." Ibid. This is not significant
participation. The judge's action in "advising" a juror that he or
she has been excused is state action, to be sure. It is, however,
if not de minimis, far from what our cases have required in order
to hold the government "responsible" for private action or to find
that private actors "represent" the government. See Blum,
supra, 457 U.S. at 457 U. S.
1004 ; Tarkanian, supra, 488 U.S. at 488 U. S. 191 .
The government

															"normally can be held responsible for a private decision only
when it has exercised coercive power or has provided such
significant encouragement, Page 500 U. S. 635 either overt or covert, that the choice must in law be deemed to
be that of the State." Blum, supra, 457 U.S. at 457 U. S.
1004 .

															As an initial matter, the judge does not "encourage" the use of
a peremptory challenge at all. The decision to strike a juror is
entirely up to the litigant, and the reasons for doing so are of no
consequence to the judge. It is the attorney who strikes. The judge
does little more than acquiesce in this decision by excusing the
juror. In point of fact, the government has virtually no role in
the use of peremptory challenges. Indeed, there are jurisdictions
in which, with the consent of the parties, voir dire and
jury selection may take place in the absence of any court
personnel. See Haith v. United States, 231 F.
Supp. 495 (ED Pa.1964), aff'd, 342 F.2d 158 (CA3 1965)
(per curiam); State v. Eberhardt, 32 Ohio Misc. 39, 282
N.E.2d 62 (1972).

															The alleged state action here is a far cry from that the Court
found, for example, in Shelley v. Kraemer, 334 U. S.
1 (1948). In that case, state courts were called upon to
enforce racially restrictive covenants against sellers of real
property who did not wish to discriminate. The coercive power of
the State was necessary in order to enforce the private choice of
those who had created the covenants:

															[B]ut for the active intervention of the state courts, supported
by the full panoply of state power, petitioners would have been
free to occupy the properties in question without restraint. Id. at 334 U. S. 19 .
Moreover, the courts in Shelley were asked to enforce a
facially discriminatory contract. In contrast, peremptory
challenges are "exercised without a reason stated [and] without
inquiry." Swain, supra, 380 U.S. at 380 U. S. 220 .
A judge does not "significantly encourage" discrimination by the
mere act of excusing a juror in response to an unexplained
request.

															There is another important distinction between Shelley and this
case. The state courts in Shelley used coercive force to impose
conformance on parties who did not wish to discriminate.
"Enforcement" of peremptory challenges, on Page 500 U. S. 636 the other hand, does not compel anyone to discriminate; the
discrimination is wholly a matter of private choice. See Goldwasser, Limiting a Criminal Defendant's Use of Peremptory
Challenges: On Symmetry and the Jury in a Criminal Trial, 102
Harv.L.Rev. 808, 819 (1989). Judicial acquiescence does not convert
private choice into that of the state. See Blum, 457 U.S.
at 457 U. S.
1004 -1005.

															Nor is this the kind of significant involvement found in Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478 (1988). There, we concluded that the actions of the executrix of an
estate in providing notice to creditors that they might file claims
could fairly be attributed to the State. The State's involvement in
the notice process, we said, was "pervasive and substantial." Id. at 485 U. S. 487 .
In particular, a state statute directed the executrix to publish
notice. In addition, the District Court in that case had
"reinforced the statutory command with an order expressly requiring
[the executrix] to immediately give notice to creditors.'" Ibid. Notice was not only encouraged by the State, but
positively required. There is no comparable state involvement here.
No one is compelled by government action to use a peremptory
challenge, let alone to use it in a racially discriminatory
way. The Court relies also on Burton v. Wilmington Parking
Authority, 365 U. S. 715 (1961). See ante at 500 U. S. 621 , 500 U. S. 624 .
But the decision in that case depended on the perceived symbiotic
relationship between a restaurant and the state parking authority
from whom it leased space in a public building. The State had "so
far insinuated itself into a position of interdependence with" the
restaurant that it had to be "recognized as a joint participant in
the challenged activity." Burton, supra, at 365 U. S. 725 .
Among the "peculiar facts [and] circumstances" leading to that
conclusion was that the State stood to profit from the restaurant's
discrimination. 365 U.S. at 365 U. S. 726 , 365 U. S. 724 .
As I have shown, the government's involvement in the use of
peremptory challenges falls far short of "interdependence" Page 500 U. S. 637 or "joint participation." Whatever the continuing vitality of Burton beyond its facts, see Jackson v. Metropolitan
Edison Co., 419 U. S. 345 , 419 U. S. 358 (1974), it does not support the Court's conclusion here. Jackson is a more appropriate analogy to this case.
Metropolitan Edison terminated Jackson's electrical service under
authority granted it by the State, pursuant to a procedure approved
by the state utility commission. Nonetheless, we held that Jackson
could not challenge the termination procedure on due process
grounds. The termination was not state action, because the State
had done nothing to encourage the particular termination
practice:

															"Approval by a state utility commission of such a request from a
regulated utility, where the commission has not put its own weight
on the side of the proposed practice by ordering it, does not
transmute a practice initiated by the utility and approved by the
commission into 'state action.' . . . Respondent's exercise of
the choice allowed by state law where the initiative comes from it,
and not from the State, does not make its action in doing so 'state
action' for purposes of the Fourteenth Amendment. " Id. at 419 U. S. 357 (emphasis added; footnote omitted). The similarity to this case is
obvious. The Court's "overt, significant" government participation
amounts to the fact that the government provides the mechanism
whereby a litigant can choose to exercise a peremptory challenge.
That the government allows this choice and that the judge approves
it does not turn this private decision into state action.

															To the same effect is Flagg Bros., Inc. v. Brooks, 436 U. S. 149 (1978). In that case, a warehouseman's proposed sale of goods
entrusted to it for storage pursuant to the New York Uniform
Commercial Code was not fairly attributable to the State. We held
that

															"the State of New York is in no way responsible for Flagg
Brothers' decision, a decision which the State in § 7-210 permits
but does not compel, to threaten to sell these respondents'
belongings." Id. at 436 U. S.
165 . Page 500 U. S. 638 Similarly, in the absence of compulsion, or at least
encouragement, from the government in the use of peremptory
challenges, the government is not responsible.

															"The essential nature of the peremptory challenge is that it is
one exercised without a reason stated, without inquiry and without
being subject to the court's control." Swain, 380 U.S. at 380 U. S. 220 .
The government neither encourages nor approves such challenges.
Accordingly, there is no "overt, significant participation" by the
government. B The Court errs also when it concludes that the exercise of a
peremptory challenge is a traditional government function. In its
definition of the peremptory challenge, the Court asserts,
correctly, that jurors struck via peremptories "otherwise . . .
satisfy the requirements for service on the petit jury." Ante at 500 U. S. 620 .
Whatever reason a private litigant may have for using a peremptory
challenge, it is not the government's reason. The government
otherwise establishes its requirements for jury service, leaving to
the private litigant the unfettered discretion to use the strike
for any reason. This is not part of the government's function in
establishing the requirements for jury service.

															Peremptory challenges are exercised by a party, not in selection
of jurors, but in rejection. It is not aimed at disqualification,
but is exercised upon qualified jurors as matter of favor to the
challenger.

															C. Lincoln, Abbott's Civil Jury Trials 92 (3d ed.1912), quoting O'Neil v. Lake Superior Iron Co., 67 Mich. 560, 35 N.W.
162 (1887). For this reason, the Court is incorrect, and
inconsistent with its own definition of the peremptory challenge,
when it says that "[i]n the jury selection process [in a civil
trial], the government and private litigants work for the same
end." See ante at 500 U. S. 627 . The Court is also incorrect when it says
that a litigant exercising a peremptory challenge is performing "a
traditional function of the government." See ante at 500 U. S.
624 . Page 500 U. S. 639 The peremptory challenge is a practice of ancient origin, part
of our common law heritage in criminal trials. See Swain,
supra, at 380 U. S.
212 -218 (tracing history); Holland, 493 U.S. at 493 U. S. 481 (same). Congress imported this tradition into federal civil trials
in 1872. See ch. 333, 17 Stat. 282; Swain, 380
U.S. at 380 U. S. 215 ,
n. 14. The practice of unrestrained private choice in the selection
of civil juries is even older than that, however. While there were
no peremptory challenges in civil trials at common law, the struck
jury system allowed each side in both criminal and civil trials to
strike alternately, and without explanation, a fixed number of
jurors. See id. at 380 U. S.
217 -218, and n. 21, citing J. Proffatt, Trial by Jury §
72 (1877), and F. Busch, Law and Tactics in Jury Trials § 62
(1949). Peremptory challenges are not a traditional government
function; the "tradition" is one of unguided private choice. The
Court may be correct that, "[w]ere it not for peremptory
challenges, . . . the entire process of determining who will serve
on the jury [would] constitut[e] state action." Ante at 500 U. S. 626 .
But there are peremptory challenges, and always have been. The
peremptory challenge forms no part of the government's
responsibility in selecting a jury.

															A peremptory challenge by a private litigant does not meet the
Court's standard; it is not a traditional government function.
Beyond this, the Court has misstated the law. The Court cites Terry v. Adams, 345 U. S. 461 (1953), and Marsh v. Alabama, 326 U.
S. 501 (1946), for the proposition that state action may
be imputed to one who carries out a "traditional governmental
function." Ante at 500 U. S. 621 .
In those cases, the Court held that private control over certain
core government activities rendered the private action attributable
to the State. In Terry, the activity was a private primary
election that effectively determined the outcome of county general
elections. In Marsh, a company that owned a town had
attempted to prohibit on its sidewalks certain protected speech Page 500 U. S. 640 In Flagg Bros., supra, the Court reviewed these and
other cases that found state action in the exercise of certain
public functions by private parties. See 436 U.S. at 436 U. S.
157 -160, reviewing Terry, Marsh, Smith v.
Allwright, 321 U. S. 649 (1944), and Nixon v. Condon, 286 U. S.
73 (1932). We explained that the government functions in
these cases had one thing in common: exclusivity. The public
function doctrine requires that the private actor exercise "a power traditionally exclusively reserved to the State.'" 436 U.S. at 436 U. S. 157 ,
quoting Jackson, 419 U.S. at 419 U. S. 352 .
In order to constitute state action under this doctrine, private
conduct must not only comprise something that the government
traditionally does, but something that only the government
traditionally does. Even if one could fairly characterize the use
of a peremptory strike as the performance of the traditional
government function of jury selection, it has never been
exclusively the function of the government to select juries;
peremptory strikes are older than the Republic. West v. Atkins, 487 U. S. 42 (1988), is not to the contrary. The Court seeks to derive from that
case a rule that one who "serve[s] an important function within the
government," even if not a government employee, is thereby a state
actor. See ante at 500 U. S. 628 .
Even if this were the law, it would not help the Court's position.
The exercise of a peremptory challenge is not an important
government function; it is not a government function at all. In any
event, West does not stand for such a broad proposition. The doctor
in that case was under contract with the State to provide services
for the State. More important, the State hired the doctor in order
to fulfill the State's constitutional obligation to attend to the
necessary medical care of prison inmates. 487 U.S. at 487 U. S. 53 , n.
10. The doctor's relation to the State, and the State's
responsibility, went beyond mere performance of an important
job.

															The present case is closer to Jackson, supra, and Rendell-Baker v. Kohn, 457 U. S. 830 (1982), than to Terry, Marsh, Page 500 U. S. 641 or West. In the former cases, the alleged state
activities were those of state-regulated private actors performing
what might be considered traditional public functions. See
Jackson (electrical utility); Rendell-Baker (school).
In each case, the Court held that the performance of such a
function, even if state regulated or state funded, was not state
action unless the function had been one exclusively the prerogative
of the State, or the State had provided such significant
encouragement to the challenged action that the State could be held
responsible for it. See Jackson, 419 U.S. at 419 U. S.
352 -353, 419 U. S. 357 ; Rendell-Baker, supra, 457 U.S. at 457 U. S. 842 , 457 U. S. 840 .
The use of a peremptory challenge by a private litigant meets
neither criterion. C None of this should be news, as this case is fairly well
controlled by Polk County v. Dodson, 454 U.
S. 312 (1981). We there held that a public defender,
employed by the State, does not act under color of state law when
representing a defendant in a criminal trial. * In such a
circumstance, government employment is not sufficient to create
state action. More important for present purposes, neither is the
performance of a lawyer's duties in a courtroom. This is because a
lawyer, when representing a private client, cannot at the same time
represent the government.

															Trials in this country are adversarial proceedings. Attorneys
for private litigants do not act on behalf of the government, or
even the public as a whole; attorneys represent their clients. An
attorney's job is to

															"advanc[e] the 'undivided interests of his client.' This is
essentially a private function . . . for which state office and
authority are not Page 500 U. S. 642 needed."

															Id. at 454 U. S.
318 -319 (footnotes omitted). When performing adversarial
functions during trial, an attorney for a private litigant acts
independently of the government:

															"[I]t is the function of the public defender to enter 'not
guilty' pleas, move to suppress State's evidence, object to
evidence at trial, cross-examine State's witnesses, and make
closing arguments in behalf of defendants. All of these are
adversarial functions. We find it peculiarly difficult to detect
any color of state law in such activities."

															454 U.S. at 454 U. S.
320 .

															Our conclusion in Dodson was that

															"a public defender does not act under color of state law when
performing a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding." Id. at 454 U. S. 325 .
It cannot be gainsaid that a peremptory strike is a traditional
adversarial act; parties use these strikes to further their own
perceived interests, not as an aid to the government's process of
jury selection. The Court does not challenge the rule of Dodson, yet concludes that private attorneys performing
this adversarial function are state actors. Where is the
distinction?

															The Court wishes to limit the scope of Dodson to the actions of
public defenders in an adversarial relationship with the
government. Ante at 500 U. S.
626 -627. At a minimum then, the Court must concede that
Dodson stands for the proposition that a criminal defense attorney
is not a state actor when using peremptory strikes on behalf of a
client, nor is an attorney representing a private litigant in a
civil suit against the government. Both of these propositions are
true, but the Court's distinction between this case and Dodson
turns state action doctrine on its head. Attorneys in an
adversarial relation to the state are not state actors, but that
does not mean that attorneys who are not in such a relation are
state actors.

															The Court is plainly wrong when it asserts that, "[i]n the
jury-selection process, the government and private litigants work
for the same end." See ante at 500 U. S. 627 .
In a civil trial, Page 500 U. S. 643 the attorneys for each side are in "an adversarial relation,"
ibid.; they use their peremptory strikes in direct opposition to
one another, and for precisely contrary ends. The government cannot
"work for the same end" as both parties. In fact, the government is
neutral as to private litigants' use of peremptory strikes. That's
the point. The government does not encourage or approve these
strikes, or direct that they be used in any particular way, or even
that they be used at all. The government is simply not
"responsible" for the use of peremptory strikes by private
litigants.

															Constitutional "liability attaches only to those wrongdoers who carry a badge of authority of [the government] and
represent it in some capacity.'" Tarkanian, 488 U.S. at 488 U. S. 191 .
A government attorney who uses a peremptory challenge on behalf of
the client is, by definition, representing the government. The
challenge thereby becomes state action. It is antithetical to the
nature of our adversarial process, however, to say that a private
attorney acting on behalf of a private client represents the
government for constitutional purposes. II Beyond "significant participation" and "traditional function,"
the Court's final argument is that the exercise of a peremptory
challenge by a private litigant is state action because it takes
place in a courtroom. Ante at 500 U. S. 628 .
In the end, this is all the Court is left with; peremptories do not
involve the "overt, significant participation of the government,"
nor do they constitute a "traditional function of the government."
The Court is also wrong in its ultimate claim. If Dodson stands for
anything, it is that the actions of a lawyer in a courtroom do not
become those of the government by virtue of their location. This is
true even if those actions are based on race.

															Racism is a terrible thing. It is irrational, destructive, and
mean. Arbitrary discrimination based on race is particularly
abhorrent when manifest in a courtroom, a forum Page 500 U. S. 644 established by the government for the resolution of disputes
through "quiet rationality." See ante at 500 U. S. 631 .
But not every opprobrious and inequitable act is a constitutional
violation. The Fifth Amendment's Due Process Clause prohibits only
actions for which the Government can be held responsible. The
Government is not responsible for everything that occurs in a
courtroom. The Government is not responsible for a peremptory
challenge by a private litigant. I respectfully dissent.

															* Dodson was a case brought under 42 U.S.C. § 1983, the
statutory mechanism for many constitutional claims. The issue in
that case, therefore, was whether the public defender had acted
"under color of state law." 454 U.S. at 314. In Lugar v. Edmondson
Oil Co., 457 U. S. 922 , 929
(1982), the Court held that the statutory requirement of action
"under color of state law" is identical to the "state action"
requirement for other constitutional claims.

															JUSTICE SCALIA, dissenting.

															I join JUSTICE O'CONNOR's dissent, which demonstrates that
today's opinion is wrong in principle. I write to observe that it
is also unfortunate in its consequences.

															The concrete benefits of the Court's newly discovered
constitutional rule are problematic. It will not necessarily be a
net help, rather than hindrance, to minority litigants in obtaining
racially diverse juries. In criminal cases, Batson v.
Kentucky, 476 U. S. 79 (1986), already prevents the prosecution from using race-based
strikes. The effect of today's decision (which logically must apply
to criminal prosecutions) will be to prevent the defendant from
doing so -- so that the minority defendant can no longer seek to
prevent an all-white jury, or to seat as many jurors of his own
race as possible. To be sure, it is ordinarily more difficult to
prove race-based strikes of white jurors, but defense counsel can
generally be relied upon to do what we say the Constitution
requires. So in criminal cases, today's decision represents a net
loss to the minority litigant. In civil cases, that is probably not
true -- but it does not represent an unqualified gain either. Both
sides have peremptory challenges, and they are sometimes used to
assure, rather than to prevent, a racially diverse jury.

															The concrete costs of today's decision, on the other hand, are
not at all doubtful; and they are enormous. We have now added to
the duties of already-submerged state and federal trial courts the
obligation to assure that race is not included among the other
factors (sex, age, religion, political Page 500 U. S. 645 views, economic status) used by private parties in exercising
their peremptory challenges. That responsibility would be burden
enough if it were not to be discharged through the adversary
process; but of course it is. When combined with our decision this
Term in Powers v. Ohio, 499 U. S. 400 (1991), which held that the party objecting to an allegedly
race-based peremptory challenge need not be of the same race as the
challenged juror, today's decision means that both sides, in all
civil jury cases, no matter what their race (and indeed, even if
they are artificial entities such as corporations), may lodge
racial-challenge objections and, after those objections have been
considered and denied, appeal the denials -- with the consequence,
if they are successful, of having the judgments against them
overturned. Thus, yet another complexity is added to an
increasingly Byzantine system of justice that devotes more and more
of its energy to sideshows, and less and less to the merits of the
case. Judging by the number of Batson claims that have
made their way even as far as this Court under the
pre- Powers regime, it is a certainty that the amount of
judges' and lawyers' time devoted to implementing today's newly
discovered Law of the Land will be enormous. That time will be
diverted from other matters, and the overall system of justice will
certainly suffer. Alternatively, of course, the States and Congress
may simply abolish peremptory challenges, which would cause justice
to suffer in a different fashion. See Holland v. Illinois, 493 U. S. 474 , 493 U. S. 484 (1990).

															Although today's decision neither follows the law nor produces
desirable concrete results, it certainly has great symbolic value.
To overhaul the doctrine of state action in this fashion -- what a
magnificent demonstration of this institution's uncompromising
hostility to race-based judgments, even by private actors! The
price of the demonstration is, alas, high, and much of it will be
paid by the minority litigants who use our courts. I dissent.