By Dr. Ken Broda-Bahm:
The peremptory challenge right now shares one problem with the two leading presidential contenders: high negatives. In the recent Foster v. Chatman case, the United States Supreme Court overturned a murder conviction due to the prosecutor's use of peremptory strikes to eliminate African-Americans from the jury based on seemingly flimsy excuses such as a lack of eye contact when those race-based strikes were challenged. The simple solution, and the one proposed by Thurgood Marshall in his concurring opinion in the earlier Batson v. Kentucky case, is to eliminate the peremptory strike and put the full burden of checking bias on the cause challenge, accompanied by reasons and decided by judges. Marshall's call has been echoed by many other commentators. For example, at the Civil Jury Project conference in the fall of 2015, Yale University's well-known law professor Akhil Amar called the existence of peremptory strikes "a disgrace," and without constitutional basis. In February, 2016, lawyers and judges from across California met to discuss a proposal to reduce the number of peremptories allowed in state courts.
The most recent example of this call comes from the Editorial Board of the Connecticut Law Tribune, who make the case for eliminating the peremptory challenge in Connecticut. "We agree with Justice Marshall's concurring opinion," they write, "that the best way to eliminate inappropriate use of peremptory challenges is to eliminate peremptory challenges." By expanding the cause challenge, making the basis more liberal in including the perception or appearance of bias as a basis for removal, the Board feels that goals of the peremptory strike can be preserved while limiting the chances for discriminatory strikes based on questionable reasons. It sounds like a nice idea: finally a clean sweep to end the troubled legacy of Batson and its progeny. But I believe this recommendation proceeds from a fundamental misunderstanding of the role of the peremptory strike. In this post, I will make the argument that, as much as we should liberalize cause challenges, we shouldn't expect that to do the job of the peremptory challenge, as originally intended and as still needed today.