When Blawgletter did a stint in law school as a student-prosecutor in Brookline and Dedham, Massachusetts during the 1980s, district attorneys could use “peremptory challenges” to strike anyone from panels of potential jurors for any reason at all, including racial, religious, and gender bias. Many juries as a result did not come close to reflecting the make-up of the communities they served. The problem vexed the lower South, where I grew up, especially.

The U.S. Supreme Court for a long time took a hands-off approach, ruling in Swain v. Alabama, 380 U.S. 202 (1965), that a criminal defendant couldn’t complain about exclusion of racial minorities from the jury that heard his case unless he proved systematic exclusion of racial minorities over multiple cases and across time. Few, if any, could satisfy the test. And so the problem persisted.

Finally, in Batson v. Kentucky, 476 U.S. 79 (1986), the Court limited the ability of prosecutors to use peremptory challenges as a means to achieve frequently all-white juries. The Court ruled by a 7-2 vote that a prosecutor must provide non-racial reasons for striking a minority panel member once the defendant presents “facts and any other relevant circumstances [that] raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race.”

Batson helped a lot. So did Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), which extended the Batson rule to civil trials.

Has the problem vanished? Of course not.

In Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc. No. 10-35137 (9th Cir. Mar. 6, 2013), the court upheld a $16 million jury award against Avis for breaking its promise, in a settlement agreement, not to compete in specific ways with certain Avis franchisees. Avis’s lawyer asked members of the jury venire whether they would award damages simply because Avis breached the settlement agreement. Some, including two Alaska Natives, suggested they might. The Avis lawyer tried to strike the Alaska Natives but not the others who had given similar answers. The district court refused to accept one of the strikes, although the court also found that the Avis lawyer did not harbor any actual racial bias.

The Ninth Circuit observed:

Objective analysis is also more reliable than subjective analysis. A judge, like any person, is ill-equipped to see into peoples’ hearts.18 Trial judges are generally very reluctant to call a lawyer a liar, by finding that the justification for a peremptory challenge is not credible. But a trial judge is in a very good position to evaluate objectively and impartially what the record would establish, from the point of view of a reasonable observer. In this case, the trial judge found the absence of subjective racial bias, but the presence of an appearance of purposeful discrimination. That suffices to justify denial of a peremptory challenge, at least in a civil case.