Excluding Blacks from Juries

April 07, 1991

It has been exasperating to watch a so-called conservative Supreme Court ignore previous rulings in arriving at their recent decisions. The absence of Lewis Powell from the court played a major role in this development. He was a strong believer in adherence to precedent. Thus it came as a pleasant -- and appropriate -- surprise when Justice Anthony Kennedy, writing for a 7-2 majority, relied on an important opinion by Justice Powell. Justice Kennedy has what we still think of as "the Powell seat." He replaced him in 1988.

This case involved a man challenging his murder conviction because the prosecutor excluded blacks from the jury. The exclusion of a juror based on race has been illegal since 1875 and unconstitutional since 1880. At least 30 times, the Supreme Court has re-affirmed that point. But prosecutors using "peremptory challenges" -- those for which no excuse has to be stated in court -- have been able to exclude blacks from juries.

In 1985 the Supreme Court finally said, in an opinion by Justice Powell, that even peremptory challenges are unacceptable if they are racially motivated. There is a presumption they are when numerous blacks are excluded. Then the defendant was black. In the recent case the defendant was white. But as Justice Kennedy noted, what Justice Powell said in 1985 was that the impermissible wrong inherent in this practice went beyond that done to the defendant. "[The opinion] recognized ++ that a prosecutor's discriminatory use of peremptory challenges harms the excluded jurors and the community at large," Justice Kennedy wrote.

Or as Justice Powell summed it up in his opinion, "Selection procedures that purposely exclude black persons from juries undermine public confidence in the fairness of our system."

In his opinion, Justice Kennedy quoted another conservative in a good reminder that there are (as there should be) non-legal precedents and principles that guide the thoughts and actions of judges. This is from Alexis De Tocqueville's "Democracy in America" (1835): "The institution of the jury raises the people itself. . . to the bench of judicial authority [and] invests the people. . . with the direction of society. I look upon it as one of the most efficacious means for the education of the people which society can employ."

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