“I don’t think it was unfair,” James K. Batson told the Louisville Courier-Journal in 2005. “It was unfair.”

Batson was remembering his 1982 state-court trial for burglary and receiving stolen property. The prosecution used “peremptory strikes” to remove four names from the list of possible jurors. These were the only four who, like Batson, were African American. The resulting all-white jury convicted Batson; he received a 20-year sentence. The U.S. Supreme Court, in 1986, decided that Batson deserved a new trial—and proclaimed a new rule of criminal procedure designed to prevent parties in a trial from using race-based “strikes” (or “peremptory challenges”) in jury selection.

Since 1986, the Court has extended that rule to peremptory challenges by defendants as well as prosecutors; to peremptory challenges of potential jurors even if they are of a different race as the defendant; to peremptory challenges based on sex as well as race; and to peremptory challenges in civil, as well as criminal, cases. Batson, thus, is a landmark—though at best a confusing one. That confusion may be on display next week, when the Supreme Court takes up a jury-selection case that is literally a matter of life and death. Foster v. Chatman tests how strong the evidence of racial motive must be in a jury selection case before a defendant can prevail on the issue.

In 1986, Tyrone Foster, an African American, killed Queen Madge White, a white 79-year-old, as part of a burglary in Rome, Georgia. He was arrested and quickly confessed. His lawyers argued that his limited mental ability meant he could not form the requisite intent to commit capital murder, meaning that he could not be sentenced to death. An all-white jury, however, disagreed.

Before the Supreme Court, Foster argues that the jury was unfairly stacked against him because the prosecution used “peremptories” to remove all African American jurors from the panel. His counsel at the time raised an objection under Batson; but the prosecution gave “race-neutral” explanations. It said, for example, that one black juror was “a social worker”—she wasn’t. The judge accepted them. In his closing argument, the prosecutor asked the jury to vote for death in order to “deter other people out there in the projects from doing the same again.”

Nearly two decades later, Foster’s lawyers obtained the prosecution’s notes for jury selection. The state’s lawyers had marked each black juror’s name with a “B,” and a state investigator had specifically ranked each “B” juror in order of preference if “it comes down to having to pick one of the black jurors.”

Lawyers can block potential jurors in one of two ways. The first is “for cause,” meaning, for example, that a juror is related to a witness or a party, or has some other genuine conflict of interest. The other is the “strike,” which means only that there’s something—maybe even something not clear—about that juror the lawyer just doesn’t like.

Peremptory strikes have been part of common-law trials since at least the Assize of Clarendon in 1166. They have stirred unease almost as long; in 1305, the English Parliament banned the Crown from using them. Common-law judges, however, immediately reinvented the “strike” as a motion to “stand aside” a juror, and they persisted another half-millennium, until they were finally abolished in England by the Criminal Justice Act of 1988.

In the U.S., they live on in both federal and state systems. The prosecution and defense alike use them to game the jury, picking jurors they think will be favorable to their cause. The challenges may be based on a hunch; but they may also be based on demographics factors like age, education, income, neighborhood—and race, an overwhelming fact of American society. Ignoring these factors would be bad lawyering.

Batson, however, tried to put race off-limits as a motivating factor. Race-based peremptories, the Court said, violate the equal-protection rights both of the defendant and of the potential juror.

So was created the “Batson hearing.” When one party notices the other making a suspicious series of challenges, he or she can ask the court to order the other party to explain themselves. The other party then must give “race-neutral” reasons why the juror didn’t suit. If those explanations are accepted, the trial goes on; if the court finds “purposeful discrimination,” however, then the court must order a remedy, usually a halt in the trial until a new jury panel can be assembled. If a trial court rejects a Batson motion, an appellate court may reverse that decision—but only if the judge’s ruling was “clear error.” If that happens, the defendant gets a new trial.

That’s what Foster is seeking—a chance to plead for his life before a jury that has not been intentionally purged of all African Americans. The state of Georgia denies that the seemingly damning notes are evidence of “purposeful discrimination.”* Instead, it argues, prudent prosecutors—already on notice that Foster would challenge any strikes of black jurors—kept careful records of race because they knew they would have to defend the strikes to the court.

That argument has some force—it’s hard to discuss the racial makeup of a jury if you don’t record the race of potential jurors. But it doesn’t explain the notes that compare the black jurors with each other, concluding that one of them might be okay “it comes down to having to pick one of the black jurors.” That sounds less like careful record-keeping than sorting by race. “If this Court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless,” argues an amicus brief filed on behalf of a group of former prosecutors including former Los Angeles County District Attorney Gil Garcetti and best-selling author Scott Turow.

The ugly truth about Batson is that it usually doesn’t make much difference to the makeup of a jury. Both trial judges and appellate courts often eagerly accept any proffered explanation as “race neutral.” According to a 2010 report by the Equal Justice Initiative, trial judges in Southern “death belt” states have accepted excuses like “he looked like a drug dealer,” or speculation that a black potential juror might know the black participants in a crime. The report also documented training materials from some state prosecutors’ offices that instructed lawyers to strike black jurors and then proffer spurious excuses.

The Supreme Court has given mixed signals on the level of Batson scrutiny. In a case called Hernandez v. New York, the majority accepted the removal of Latinos from a jury because they spoke Spanish; since much of the evidence would be in Spanish, the state argued, these jurors might actually listen to the witnesses instead of the official interpreter. In Rice v. Collins, the Court accepted as “race neutral” a prosecutor’s claim that a black potential juror was “young” and might be “tolerant” of drug crime. In Purkett v. Elem, the majority stated that a prosecutor’s “race neutral” reason need not be “persuasive, or even plausible.” Read that way, Batson amounts only to a kind of semi-serious finger-wagging: “Now y’all don’t be racist, you hear me?”

In two recent cases, however, the Court has seemingly attempted to give the test more bite, holding that statistical evidence, not simply a prosecutor’s subjective explanations, can establish a violation, and that “race neutral” explanations should be rejected if they apply equally well to white jurors who are accepted.

At the time Batson was decided, Justice Thurgood Marshall warned that it did not go far enough. “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process,” he wrote in a concurrence. “That goal can be accomplished only by eliminating peremptory challenges entirely.”

So far the Court has shown little appetite for that, and it’s unlikely that Foster will move that needle. “It feels like an easy case,” Tania Tetlow of Tulane Law School, who has written on the shortcomings of Batson, said in an interview. “If you were going to put more teeth in the test you’d need a harder case than this.”


* This article originally stated that the state of Louisiana is the defendant in the case. We regret the error.