Nancy S. Marder

Document Type



In 2016, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way to eliminate discriminatory peremptory challenges is to eliminate the peremptory challenge. The Court in Foster undertook a close reading of the prosecutors' reasons and found race to be the basis for the prosecutors' peremptory challenges. This Article identifies the strengths and weaknesses of the Court's opinion in Foster. However, Foster's case was unusual because the prosecutors' notes, with their explicit references to African-American prospective jurors' race, were in effect a "smoking gun." Without such notes, the prosecutors' seemingly race-neutral explanations would have sufficed under Batson. The Court needs to recognize the ineffectiveness of Batson. It could tweak the Batson test in different ways, such as by giving more weight to discriminatory effects or practices or by devising a stronger remedy. In the end, however, the only remedy that is adequate to the task is the one that Justice Marshall proposed in his Batson concurrence thirty years ago: elimination of the peremptory challenge.