A Famous Victory for Women

April 24, 1994|By GEORGE F. WILL

Writing for the Supreme Court majority, announcing the conclusion that lawyers may no longer base peremptory challenges to potential jurors on the basis of sex, Justice Harry Blackmun says the conclusion is ''axiomatic.'' By that he means, judging from his opinion, that the conclusion is so self-evident as to need no constitutional argument. But so flimsy is his opinion, ,, and so foolish is the ruling, that both are demolished by, of all things, a concurring opinion.

In an Alabama paternity trial a Tennessee salesman was found to be the father of a child and ordered to pay child support. The state, on behalf of the mother, used its peremptory ''strikes'' to produce from a pool of 36 jurors (12 male, 24 female) an all-female jury. The salesman appealed, arguing that the logic of a 1986 ruling, in which the court held that peremptory strikes solely on the basis of race violate the Constitution's equal-protection guarantee, should also proscribe strikes on the basis of sex.

In this Alabama case concerning the exclusion of men from a jury, Justice Blackmun waxes indignant about injustices to women, arriving at the thought that peremptory challenges arising from ''gender stereotypes'' reinforce retrograde thinking about ''the relative abilities of men and women.'' Actually, what is at issue is not abilities, but different inclinations in certain trial contexts. Never mind. The vote was 6-3, with Justices Stevens, Souter, Ginsburg, Kennedy and O'Connor siding with Mr. Blackmun.

Ms. O'Connor's strange concurring opinion shreds the decision it ostensibly is concurring in. After expressing perfunctory agreement with the majority concerning the equal-protection clause, she enumerates the costs and contradictions of this ruling. With this latest intrusion of new rules constitutionalizing the jury selection process, she says, the court ''increases the number of cases in which jury selection -- once a sideshow -- will become part of the main event.''

And the decision erodes the role of the peremptory challenge, which for centuries has been considered a contribution to fair trials.

She notes that the court has hitherto held that 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.'' By making peremptory challenges less discretionary and more challengeable, ''we also increase the possibility that biased jurors will be allowed onto the jury, because sometimes a lawyer will be unable to provide an acceptable gender-neutral explanation even though the lawyer is fact correct that the juror is unsympathetic.''

Furthermore, she says, in jurisdictions where lawyers must make peremptory challenges in open court, they may be deterred from using their quota of such challenges because if they are unable to justify them to the trial court's satisfaction, the court will sit a juror who knows the lawyer thought him or her unfit. The Supreme Court ''has now added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender-based assumptions about juror attitudes.''

For example, in rape cases female jurors are more apt to convict. But even where sex may be a predictor of juror behavior, it is now an unconstitutional basis for peremptory challenges by a lawyer trying to do his duty in an adversarial process.

Justice O'Connor notes that reasons for peremptory challenges

often ''cannot be stated, for a trial lawyer's judgments about a juror's sympathies are sometimes based on experienced hunches and educated guesses.'' She says we have cherished peremptory challenges for centuries precisely because we know good lawyers often will have intuitions they cannot explain. ''But, as we add, layer by layer, additional constitutional restraints on the use of the peremptory, we force lawyers to articulate what we know is often inarticulable.''

In dissent, Justice Scalia wonders: The majority must assume that the man in this case suffered some harm. But what can it have been, given the court's postulate that male and female jurors must be regarded as fungible?

In any case, the man now can have a new trial, where another jury will hear about the blood test that established his paternity with 99.92 percent accuracy. And in future trials concerning rape, spousal abuse, sex harassment and other matters, prosecutors and defense attorneys will be inhibited in working for the sort of juries they think best.

Still, 'twas a famous victory for women, the Constitution and justice. Mr. Blackmun says that conclusion is ''axiomatic.''

George F. Will is a syndicated columnist.

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