J.E.B. is the petitioner, the state of Alabama, (representing T.B. – an un-wed mother of a minor child), is the respondent. The petitioner’s claim is that, by striking men from his jury, Alabama violated his constitutional rights. According to the text, J.E.B. appealed to the U.S Supreme court since the Alabama State Supreme court denied, certiorari (which involves an order of a lower court to send the record of case to the Supreme Court). The case moves to the U.S. Supreme court where we read about Justice Blackmun and his thoughts on gender- based peremptory challenges and how they violate the Equal Protection Clause.( cite text- p 56) peremptory challenges- “ in most states, attorneys are allowed to reject a minimum number of potential jurors without giving a reason.” This is a concept that takes into consideration a lawyers, gut reaction to whether a juror says anything, yeah or nay, that would indicate some sort of bias. He speaks of the fact that women were excluded from jury service in many states, despite the fact that they attained suffrage, with the ratification, of the 19th amendment in 1920.
He further explains that, “although the racial discriminations have not been identical to gender discriminations, they both share a history of exclusion.” And the community is harmed with both of these issues. He then cites the Batson vs. Kentucky (1986), where the Supreme Court decided that lawyers are not allowed to use peremptory challenges to strike jurors just because of their race. So now the issue becomes, can that be extended to include gender as well as race? Blackmun’s argument is that, with race, “the core guarantee of equal protection, ensuring citizens that their state will not discriminate…” His point is that, the aforementioned would be “meaningless, were we to approve the exclusion on gender”. He reversed the decision and remanded in favor of the defendant. (J.E.B.) Then we have the dissenting view from, Judge Scalia. He states Blackmun’s statements are irrelevant, since the case involves state action that allegedly discriminates against men. According to Scalia, “Of course the relationship of sex to partiality would have been relevant if the Court had demanded in this case what it ordinarily demands: that the complaining parties have suffered some injury.
Leaving aside for the moment the reality that the defendant himself had the opportunity to strike women from the jury, the defendant would have some cause to complain about the prosecutor’s striking male jurors if male jurors tend to be more favorable towards defendants in paternity suits. But if men and women jurors are (as the Court thinks) “fungible”, then the only arguable injury from the prosecutor’s “impermissible” use of male sex as the basis for his peremptoriness’ is injury to the stricken juror, not to the defendant. Indeed, far from having suffered harm, and also speaks of Voir dire. (Text- voir dire- the judge or the attorneys’, or both, question potential jurors to determine whether they could render an unbiased opinion.) He mentions how this already burdens the trial courts. 1. What facts in our society have become more visible such that Justice Blackmun feels it appropriate to expand the application of Batson? Batson was about striking possible jurors because of race bias; Blackmun felt that Batson should be extended to include gender based challenges as well.
Our society has become extremely aware of discrimination with equal rights on any level, whether it is against racial, gender based, age, disabilities, or even sexual preference (gay rights). If we look back to the 1950’s and 1960’s, we can see movements that have evolved that have helped bring many changes for Equal Rights. The civil rights movement, the women’s right movement is just two examples in my lifetime that has made a huge impact in our society today and has opened the door to our society to truly recognize each individual’s right to be treated fairly, no matter how different we are. Blackmun specifically pointed to the example of women and how historically they have been discriminated against; he based much of his decision on that point as he related it to Batson. 2. Justice Blackmun disagrees with the respondent concerning the comparative “level of discrimination” experienced by nonwhites and women. Legal reasoning frequently contains phrases like level of discrimination that require some numerical determination- but recognize that clear number measuring such a level are hard to come by.
As critical thinkers you can often see soft spots in reasoning by asking, “Now how are they measuring that concept?” Could you help Justice Blackmun measure “level of discrimination” by suggesting what data might be useful in this determination? The respondent could have quantified the phrase “level of discrimination”, by researching and referencing a qty or the number count on court cases regarding racial discrimination against African-Americans versus discrimination against women (or men), gender based cases. This type of numbers data, may have affected the decision. However, I found it very interesting, when Blackmun stated, “While the prejudicial attitudes toward women in this country have not been identical to those held toward racial minorities, the similarities between the experiences of racial minorities and women, in some contexts, “overpower those differences.” This shows how an interpretation of the concept can be “legally reasoned”. 3. Justice Scalia does not categorically disagree with extension of Batson.
What facts would have had to be different for Scalia to have concurred with the majority? Scalia’s first statement in his dissenting paper, “Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors”, pretty much sums up his disagreement with the courts decision. He felt the opinion was irrelevant to the case. He may have thought differently if there had been some statistical facts to show how discrimination against African Americans (race) was at least equal to women’s discrimination (gender/sex), in regards to the Equal Protection Clause. He was adamantly against extending the Batson case to include gender bias, because he believed it would cause additional and further scrutiny to peremptory challenges that would lead to the breakdown and elimination of this procedure.
He also comments that the gender (sex) issue would have been relevant if there was some type of injury suffered by the complaining party as there normally is. Again, perhaps if the respondent had addressed the complaint from this angle, Scalia may not have dissented. In addition, I have learned about jurisprudence, and now have insight into the different “schools of law”. Reading this case made me wonder if the two judges mentioned in the case, Blackmun and Scalia, must be from two very different schools of law. My research shows that Scalia could be from the Positivist school of thinking. According to, Annalise Manz’s article from The Daily Trojan, he has a philosophy of Constitutional originalism, which means that he interprets the constitution the way our founding fathers wrote it and does not believe in reading new meaning into it. This can help explain his objection to Blackmun’s reasoning to extend Batson to include gender Blackmun, as I researched further, was a deciding Supreme Court judge for the infamous case, Roe vs. Wade in 1973.
This case involves a woman (Roe) who claims that Texas abortion law violates her and other women’s constitutional rights. The defendant was, Henry B. Wade, the Dallas County district attorney. The court ruled in favor of Roe and set a precedent that virtually made abortion legal in the U.S. So, now I have insight into Blackmun and think that his thoughts relate to the American Realists School of thought. Additional information proves that his jurisprudence is consistent. According to Tinsley Yarbrough, “Arguably, they also provide additional support for the thesis that he was largely consistent in his jurisprudence throughout his career” (p.85). For example, in MARION v. GARDNER (1966) Blackmun wrote a unanimous decision overturning a denial of social security benefits to a gay man who had been committed to a mental institution. In the 1966 case he wrote about the topic in respectful tones, “History and common knowledge teach us . . . that many persons with homosexual tendencies have been economically productive and, indeed, have achieved marked success in many fields” (p.85). In this same article, there is a statement for a N.Y.Times reporter Linda Green, “he became a feminist icon”, tying to him to Roe vs. Wade and other cases, really was very interesting to me since I was researching the J.E.B case.
Kubasek, N., Brennan, B. A., & Brown, M. N. (2012). The legal environment of business: a critical thinking approach (6th Ed.). Upper Saddle River, N.J.: Pearson.