Opinion

JUSTICE O'CONNOR, concurring.

I concur in the Court's opinion and judgment, but also agree with the views of THE CHIEF JUSTICE and JUSTICE WHITE that today's decision does not apply retroactively.

CHIEF JUSTICE BURGER, joined by JUSTICE REHNQUIST, dissenting.

We granted certiorari to decide whether petitioner was tried

in violation of constitutional provisions guaranteeing the defendant an impartial jury and a jury composed of persons representing a fair cross-section of the community.

Pet. for Cert. i.

I

Today the Court sets aside the peremptory challenge, a procedure which has been part of the common law for many centuries and part of our jury system for nearly 200 years. It does so on the basis of a constitutional argument that was rejected, without a single dissent, in Swain Alabama, 380 U. S. 202 (1965). Reversal of such settled principles would be unusual enough on its own terms, for only three years ago we said that " stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law." Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 420 (1983). What makes today's holding truly extraordinary is that it is based on a constitutional argument that the petitioner has expressly declined to raise, both in this Court and in the Supreme Court of Kentucky.

In the Kentucky Supreme Court, petitioner disclaimed specifically any reliance on the Equal Protection Clause of the Fourteenth Amendment, pressing instead only a claim based on the Sixth Amendment. See Brief for Appellant 14 and Reply Brief for Appellant 1 in No. 84-SC-733-MR (Ky.). As petitioner explained at oral argument here:

We have not made an equal protection claim.... We have not made a specific argument in the briefs that have been filed either in the Supreme Court of Kentucky or in this Court saying that we are attacking Swain as such.

Tr. of Oral Arg. 6-7. Petitioner has not suggested any barrier prevented raising an equal protection claim in the Kentucky courts. In such circumstances, review of an equal protection argument is improper in this Court: " The Court has consistently refused to decide federal constitutional issues raised here for the first time on review of state court decisions....'" Illinois v. Gates, 459 U. S. 1028, 1029, n. 2 (1982) (STEVENS, J., dissenting) (quoting Cardinale v. Louisiana, 394 U. S. 437, 394 U. S. 438 (1969)). Neither the Court nor JUSTICE STEVENS offers any justification for departing from this time-honored principle, which dates to Owings v. Norwood's Lessee, 5 Cranch 344 (1809), and Crowell v. Randell, 10 Pet. 368 (1836).

Even if the equal protection issue had been pressed in the Kentucky Supreme Court, it has surely not been pressed here. This provides an additional and completely separate procedural novelty to today's decision. Petitioner's "question presented" involved only the

constitutional provisions guaranteeing the defendant an impartial jury and a jury composed of persons representing a fair cross-section of the community.

Pet. for Cert. i. These provisions are found in the Sixth Amendment, not the Equal Protection Clause of the Fourteenth Amendment relied upon by the Court. In his brief on the merits, under a heading distinguishing equal protection cases, petitioner noted "the irrelevance of the Swain analysis to the present case," Brief for Petitioner 11; instead, petitioner relied solely on Sixth Amendment analysis found in cases such as Taylor v. Louisiana, 419 U. S. 522 (1975). During oral argument, counsel for petitioner was pointedly asked:

QUESTION: Mr. Niehaus, Swain was an equal protection challenge, was it not?

MR. NIEHAUS: Yes.

QUESTION: Your claim here is based solely on the Sixth Amendment?

MR. NIEHAUS: Yes.

QUESTION: Is that correct?

"MR. NIEHAUS: That is what we are arguing, yes. " "QUESTION: You are not asking for a reconsideration of Swain, and you are making no equal protection claim here. Is that correct?"

MR. NIEHAUS: We have not made an equal protection claim. I think that Swainwill have to be reconsidered to a certain extent, if only to consider the arguments that are made on behalf of affirmance by the respondent and the solicitor general. * * * *

MR. NIEHAUS: We have not made a specific argument in the briefs that have been filed either in the Supreme Court of Kentucky or in this Court saying that we are attacking Swain as such....

Tr. of Oral Arg. 5-7. A short time later, after discussing the difficulties attendant with a Sixth Amendment claim, the following colloquy occurred:

QUESTION: So I come back again to my question why you didn't attack Swain head on, but I take it, if the Court were to overrule Swain, you wouldn't like that result.

MR. NIEHAUS: Simply overrule Swain without adopting the remedy?

QUESTION: Yes.

MR. NIEHAUS: I do not think that would give us much comfort, Your Honor, no.

QUESTION: That is a concession.

Id. at 10. Later, petitioner's counsel refused to answer the Court's questions concerning the implications of a holding based on equal protection concerns:

"MR. NIEHAUS:... [T]here is no state action involved where the defendant is exercising his peremptory challenge. " "QUESTION: But there might be under an equal protection challenge if it is the state system that allows that kind of a strike."

MR. NIEHAUS: I believe that is possible. I am really not prepared to answer that specific question....

Id. at 20.

In reaching the equal protection issue despite petitioner's clear refusal to present it, the Court departs dramatically from its normal procedure without any explanation. When we granted certiorari, we could have -as we sometimes do -directed the parties to brief the equal protection question in addition to the Sixth Amendment question. See, e.g., Paris Adult Theatre I v. Slaton, 408 U.S. 921 (1972); Colorado v. Connelly, 474 U. S. 1050 (1986). [ Footnote 4/1 ] Even following oral argument, we could have -as we sometimes do -directed reargument on this particular question. See, e.g., Brown v. Board of Education, 345 U.S. 972 (1953); Illinois v. Gates, supra; New Jersey v. T.L.O., 468 U. S. 1214 (1984). [ Footnote 4/2 ] This step is particularly appropriate where reexamination of a prior decision is under consideration. See, e.g., Garcia v. San Antonio Metropolitan Transit Authority, 468 U.S. 1213 (1984) (directing reargument and briefing on issue of whether National League of Cities v. Usery, 426 U. S. 833 (1976), should be reconsidered); Alfred Dunhill of London, Inc. v. Republic of Cuba, 422 U.S. 1005 (1975) (directing reargument and briefing on issue of whether the holding in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964), should be reconsidered). Alternatively, we could have simply dismissed this petition as improvidently granted.

The Court today rejects these accepted courses of action, choosing instead to reverse a 21-year-old unanimous constitutional holding of this Court on the basis of constitutional arguments expressly disclaimed by petitioner. The only explanation for this action is found in JUSTICE STEVENS' concurrence. JUSTICE STEVENS apparently believes that this issue is properly before the Court because "the party defending the judgment has explicitly rested on the issue in question as a controlling basis for affirmance." Ante at 476 U. S. 109. Cf. Illinois v. Gates, 459 U.S. at 1029, n. 1 (STEVENS, J., dissenting) ("[T]here is no impediment to presenting a new argument as an alternative basis for affirming the decision below") (emphasis in original). To be sure, respondent and supporting amici did cite Swain and the Equal Protection Clause. But their arguments were largely limited to explaining that Swain placed a negative gloss on the Sixth Amendment claim actually raised by petitioner. In any event, it is a strange jurisprudence that looks to the arguments made by respondent to determine the breadth of the questions presented for our review by petitioner. Of course, such a view is directly at odds with our Rule 21.1(a), which provides that "[o]nly the questions set forth in the petition or fairly included therein will be considered by the Court." JUSTICE STEVENS does not cite, and I am not aware of, any case in this Court's nearly 200-year history where the alternative grounds urged by respondent to affirm a judgment were then seized upon to permit petitioner to obtain relief from that very judgment despite petitioner's failure to urge that ground.

JUSTICE STEVENS also observes that several amici curiae address the equal protection argument. Ante at 476 U. S. 109 -110, and n. 3. But I thought it well settled that, even if a "point is made in an amicus curiae brief," if the claim "has never been advanced by petitioners,... we have no reason to pass upon it." Knetsch v. United States, 364 U. S. 361, 364 U. S. 370 (1960).

When objections to peremptory challenges were brought to this Court three years ago, JUSTICE STEVENS agreed with JUSTICE MARSHALL that the challenge involved "a significant and recurring question of constitutional law." McCray v. New York, 461 U.S. 961, 963 (1983) (MARSHALL, J., dissenting from denial of certiorari), referred to with approval, id. at 961 (opinion of STEVENS, J., respecting denial of certiorari). Nonetheless, JUSTICE STEVENS wrote that the issue could be dealt with "more wisely at a later date." Id. at 962. The same conditions exist here today. JUSTICE STEVENS concedes that reargument of this case "might enable some of us to have a better informed view of a problem that has been percolating in the courts for several years." Ante at 476 U. S. 110. Thus, at bottom, his position is that we should overrule an extremely important prior constitutional decision of this Court on a claim not advanced here, even though briefing and oral argument on this claim might convince us to do otherwise. [ Footnote 4/3 ] I believe that "[d]ecisions made in this manner are unlikely to withstand the test of time." United States v. Leon, 468 U. S. 897, 468 U. S. 962 (1984) (STEVENS, J., dissenting). Before contemplating such a holding, I would at least direct reargument and briefing on the issue of whether the equal protection holding in Swain should be reconsidered.

II

Because the Court nonetheless chooses to decide this case on the equal protection grounds not presented, it may be useful to discuss this issue as well. The Court acknowledges, albeit in a footnote, the " very old credentials'" of the peremptory challenge and the "`widely held belief that peremptory challenge is a necessary part of trial by jury.'" Ante at 476 U. S. 91, n. 15 (quoting Swain, 380 U.S. at 380 U. S. 219 ). But proper resolution of this case requires more than a nodding reference to the purpose of the challenge. Long ago, it was recognized that "[t]he right of challenge is almost essential for the purpose of securing perfect fairness and impartiality in a trial." W. Forsyth, History of Trial by Jury 175 (1852). The peremptory challenge has been in use without scrutiny into its basis for nearly as long as juries have existed.

It was in use amongst the Romans in criminal cases, and the Lex Servilia (B.C. 104) enacted that the accuser and the accused should severally propose one hundred judices, and that each might reject fifty from the list of the other, so that one hundred would remain to try the alleged crime.

Ibid.; see also J. Pettingal, An Enquiry into the Use and Practice of Juries Among the Greeks and Romans 115, 135 (1769).

In Swain, JUSTICE WHITE traced the development of the peremptory challenge from the early days of the jury trial in England:

In all trials for felonies at common law, the defendant was allowed to challenge peremptorily 35 jurors, and the prosecutor originally had a right to challenge any number of jurors without cause, a right which was said to tend to 'infinite delayes and danger.' Coke on Littleton 156 (14th ed. 1791). Thus The Ordinance for Inquests, 33 Edw. 1, Stat. 4 (1305), provided that, if 'they that sue for the King will challenge any... Jurors, they shall assign... a Cause certain.' So persistent was the view that a proper jury trial required peremptories on both sides, however, that the statute was construed to allow the prosecution to direct any juror after examination to 'stand aside' until the entire panel was gone over and the defendant had exercised his challenges; only if there was a deficiency of jurors in the box at that point did the Crown have to show cause in respect to jurors recalled to make up the required number. Peremptories on both sides became the settled law of England, continuing in the above form until after the separation of the Colonies.

380 U.S. at 380 U. S. 212 -213 (footnotes omitted). Peremptory challenges have a venerable tradition in this country as well:

In the federal system, Congress early took a part of the subject in hand in establishing that the defendant was entitled to 35 peremptories in trials for treason and 20 in trials for other felonies specified in the 1790 Act as punishable by death, 1 Stat. 119 (1790). In regard to trials for other offenses without the 1790 statute, both the defendant and the Government were thought to have a right of peremptory challenge, although the source of this right was not wholly clear.... The course in the States apparently paralleled that in the federal system. The defendant's right of challenge was early conferred by statute, the number often corresponding to the English practice, the prosecution was thought to have retained the Crown's common law right to stand aside, and by 1870, most, if not all, States had enacted statutes conferring on the prosecution a substantial number of peremptory challenges, the number generally being at least half, but often equal to, the number had by the defendant.

Id. at 380 U. S. 214 -216 (footnotes omitted).

The Court's opinion, in addition to ignoring the teachings of history, also contrasts with Swain in its failure to even discuss the rationale of the peremptory challenge. Swain observed:

"The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed for them, and not otherwise. In this way, the peremptory satisfies the rule that, "to perform its high function in the best way, justice must satisfy the appearance of justice.'""

Id. at 380 U. S. 219 (quoting In re Murchison, 349 U. S. 133, 349 U. S. 136 (1955)). Permitting unexplained peremptories has long been regarded as a means to strengthen our jury system in other ways as well. One commentator has recognized:

The peremptory, made without giving any reason, avoids trafficking in the core of truth in most common stereotypes.... Common human experience, common sense, psychosociological studies, and public opinion polls tell us that it is likely that certain classes of people statistically have predispositions that would make them inappropriate jurors for particular kinds of cases. But to allow this knowledge to be expressed in the evaluative terms necessary for challenges for cause would undercut our desire for a society in which all people are judged as individuals, and in which each is held reasonable and open to compromise.... [For example,] [a]lthough experience reveals that black males as a class can be biased against young alienated blacks who have not tried to join the middle class, to enunciate this in the concrete expression required of a challenge for cause is societally divisive. Instead we have evolved in the peremptory challenge a system that allows the covert expression of what we dare not say, but know is true more often than not.

Babcock, Voir Dire: Preserving "Its Wonderful Power," 27 Stan.L.Rev. 545, 553-554 (1975). For reasons such as these, this Court concluded in Swain that "the [peremptory] challenge is one of the most important of the rights'" in our justice system. Swain, 380 U.S. at 380 U. S. 219 (quoting Pointer v. United States, 151 U. S. 396, 151 U. S. 408 (1894)). For close to a century, then, it has been settled that "[t]he denial or impairment of the right is reversible error without a showing of prejudice." Swain, supra, at 380 U. S. 219 (citing Lewis v. United States, 146 U. S. 370 (1892)).

Instead of even considering the history or function of the peremptory challenge, the bulk of the Court's opinion is spent recounting the well-established principle that intentional exclusion of racial groups from jury venires is a violation of the Equal Protection Clause. I too reaffirm that principle, which has been a part of our constitutional tradition since at least Strauder West Virginia, 100 U. S. 303 (1880). But if today's decision is nothing more than mere "application" of the "principles announced in Strauder, " as the Court maintains, ante at 476 U. S. 89 -90, some will consider it curious that the application went unrecognized for over a century. The Court in Swain had no difficulty in unanimously concluding that cases such as Strauder did not require inquiry into the basis for a peremptory challenge. See post at 476 U. S. 135 -137 (REHNQUIST, J., dissenting). More recently we held that "[d]efendants are not entitled to a jury of any particular composition...." Taylor v. Louisiana, 419 U.S. at 419 U. S. 538.

A moment's reflection quickly reveals the vast differences between the racial exclusions involved in Strauder and the allegations before us today:

Exclusion from the venire summons process implies that the government (usually the legislative or judicial branch)... has made the general determination that those excluded are unfit to try any case. Exercise of the peremptory challenge, by contrast, represents the discrete decision, made by one of two or more opposed litigants in the trial phase of our adversary system of justice, that the challenged venireperson will likely be more unfavorable to that litigant in that particular casethan others on the same venire. Thus, excluding a particular cognizable group from an venire pools is stigmatizing and discriminatory in several interrelated ways that the peremptory challenge is not. The former singles out the excluded group, while individuals of all groups are equally subject to peremptory challenge on any basis, including their group affiliation. Further, venire-pool exclusion bespeaksa priori across-the-board total unfitness, while peremptory-strike exclusion merely suggests potential partiality in a particular isolated case. Exclusion from venires focuses on the inherent attributes of the excluded group and infers its inferiority, but the peremptory does not. To suggest that a particular race is unfit to judge in any case necessarily is racially insulting. To suggest that each race may have its own special concerns, or even may tend to favor its own, is not.

United States v. Leslie, 783 F.2d 541, 554 (CA5 1986) (en banc).

Unwilling to rest solely on jury venire cases such as Strauder, the Court also invokes general equal protection principles in support of its holding. But peremptory challenges are often lodged, of necessity, for reasons

normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty.

Swain, supra, at 380 U. S. 220. Moreover, in making peremptory challenges, both the prosecutor and defense attorney necessarily act on only limited information or hunch. The process cannot be indicted on the sole basis that such decisions are made on the basis of "assumption" or "intuitive judgment." Ante at 476 U. S. 97. As a result, unadulterated equal protection analysis is simply inapplicable to peremptory challenges exercised in any particular case. A clause that requires a minimum "rationality" in government actions has no application to " an arbitrary and capricious right,'" Swain, supra, at 380 U. S. 219 (quoting Lewis v. United States, supra, at 146 U. S. 378 ); a constitutional principle that may invalidate state action on the basis of "stereotypic notions," Mississippi University for Women v. Hogan, 458 U. S. 718, 458 U. S. 725 (1982), does not explain the breadth of a procedure exercised on the "`sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.'" Lewis, supra, at 146 U. S. 376 (quoting 4 W. Blackstone, Commentaries *353).

That the Court is not applying conventional equal protection analysis is shown by its limitation of its new rule to allegations of impermissible challenge on the basis of race; the Court's opinion clearly contains such a limitation. See ante at 476 U. S. 96 (to establish a prima facie case, "the defendant first must show that he is a member of a cognizable racial group ") (emphasis added); ibid. ("[F]inally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race ") (emphasis added). But if conventional equal protection principles apply, then presumably defendants could object to exclusions on the basis of not only race, but also sex, Craig v. Boren, 429 U. S. 190 (1976); age, Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976); religious or political affiliation, Karcher v. Daggett, 462 U. S. 725, 748 (1983) (STEVENS, J., concurring); mental capacity, Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985); number of children, Dandridge v. Williams, 397 U. S. 471 (1970); living arrangements, Department of Agriculture v. Moreno, 413 U. S. 528 (1973); and employment in a particular industry, Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 (1981), or profession, Williamson v. Lee Optical Co., 348 U. S. 483 (1955). [ Footnote 4/4 ]

In short, it is quite probable that every peremptory challenge could be objected to on the basis that, because it excluded a venireman who had some characteristic not shared by the remaining members of the venire, it constituted a "classification" subject to equal protection scrutiny. See McCray v. Abrams, 750 F.2d 1113, 1139 (CA2 1984) (Meskill, J., dissenting), cert. pending, No. 84-1426. Compounding the difficulties, under conventional equal protection principles some uses of peremptories would be reviewed under "strict scrutiny and... sustained only if... suitably tailored to serve a compelling state interest," Cleburne, 473 U.S. at 473 U. S. 440 ; others would be reviewed to determine if they were "substantially related to a sufficiently important government interest," id. at 473 U. S. 441 ; and still others would be reviewed to determine whether they were "a rational means to serve a legitimate end." Id. at 473 U. S. 442.

The Court never applies this conventional equal protection framework to the claims at hand, perhaps to avoid acknowledging that the state interest involved here has historically been regarded by this Court as substantial, if not compelling. Peremptory challenges have long been viewed as a means to achieve an impartial jury that will be sympathetic toward neither an accused nor witnesses for the State on the basis of some shared factor of race, religion, occupation, or other characteristic. Nearly a century ago, the Court stated that the peremptory challenge is "essential to the fairness of trial by jury." Lewis v. United States, 146 U.S. at 146 U. S. 376. Under conventional equal protection principles, a state interest of this magnitude and ancient lineage might well overcome an equal protection objection to the application of peremptory challenges. However, the Court is silent on the strength of the State's interest, apparently leaving this issue, among many others, to the further "litigation [that] will be required to spell out the contours of the Court's equal protection holding today...." Ante at 476 U. S. 102 (WHITE, J., concurring). [ Footnote 4/5 ]

The Court also purports to express "no views on whether the Constitution imposes any limit on the exercise of peremptory challenges by defense counsel." Ante at 476 U. S. 89, n. 12 (emphasis added). But the clear and inescapable import of this novel holding will inevitably be to limit the use of this valuable tool to both prosecutors and defense attorneys alike. Once the Court has held that prosecutors are limited in their use of peremptory challenges, could we rationally hold that defendants are not? [ Footnote 4/6 ]

Our criminal justice system 'requires not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state, the scales are to be evenly held.'

Ante at 476 U. S. 107 (MARSHALL, J., concurring) (quoting Hayes v. Missouri, 120 U. S. 68, 120 U. S. 70 (1887)).

Rather than applying straightforward equal protection analysis, the Court substitutes for the holding in Swain a curious hybrid. The defendant must first establish a " prima facie case," ante at 476 U. S. 93 -94, of invidious discrimination, then the "burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Ante at 476 U. S. 97. The Court explains that "the operation of prima facie burden of proof rules" is established in "[o]ur decisions concerning disparate treatment'...." Ante at 476 U. S. 94, n. 18. The Court then adds, borrowing again from a Title VII case, that "the prosecutor must give a `clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges." Ante at 476 U. S. 98, n. 20 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 450 U. S. 258 (1981)). [ Footnote 4/7 ]

While undoubtedly these rules are well suited to other contexts, particularly where (as with Title VII) they are required by an Act of Congress, [ Footnote 4/8 ] they seem curiously out of place when applied to peremptory challenges in criminal cases. Our system permits two types of challenges: challenges for cause and peremptory challenges. Challenges for cause obviously have to be explained; by definition, peremptory challenges do not.

It is called a peremptory challenge because the prisoner may challenge peremptorily, on his own dislike, without showing of any cause.

H. Joy, On Peremptory Challenge of Jurors 1 (1844) (emphasis added). Analytically, there is no middle ground: a challenge either has to be explained or it does not. It is readily apparent, then, that to permit inquiry into the basis for a peremptory challenge would force "the peremptory challenge [to] collapse into the challenge for cause." United States v. Clark, 737 F.2d 679, 682 (CA7 1984). Indeed, the Court recognized without dissent in Swain that, if scrutiny were permitted,

[t]he challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards.

Swain, 380 U.S. at 380 U. S. 222.

Confronted with the dilemma it created, the Court today attempts to decree a middle ground. To rebut a prima facie case, the Court requires a "neutral explanation" for the challenge, but is at pains to "emphasize" that the "explanation need not rise to the level justifying exercise of a challenge for cause." Ante at 476 U. S. 97. I am at a loss to discern the governing principles here. A "clear and reasonably specific" explanation of "legitimate reasons" for exercising the challenge will be difficult to distinguish from a challenge for cause. Anything short of a challenge for cause may well be seen as an "arbitrary and capricious" challenge, to use Blackstone's characterization of the peremptory. See 4 W. Blackstone, Commentaries *353. Apparently the Court envisions permissible challenges short of a challenge for cause that are just a little bit arbitrary -but not too much. While our trial judges are "experienced in supervising voir dire, " ante at 476 U. S. 97, they have no experience in administering rules like this.

An example will quickly demonstrate how today's holding, while purporting to "further the ends of justice," ante at 476 U. S. 99, will not have that effect. Assume an Asian defendant, on trial for the capital murder of a white victim, asks prospective jury members, most of whom are white, whether they harbor racial prejudice against Asians. See Turner v. Murray, ante at 476 U. S. 36 -37. The basis for such a question is to flush out any "juror who believes that [Asians] are violence-prone or morally inferior...." Ante at 476 U. S. 35. [ Footnote 4/9 ] Assume further that all white jurors deny harboring racial prejudice, but that the defendant, on trial for his life, remains unconvinced by these protestations. Instead, he continues to harbor a hunch, an "assumption," or "intuitive judgment," ante at 476 U. S. 97, that these white jurors will be prejudiced against him, presumably based in part on race. The time-honored rule before today was that peremptory challenges could be exercised on such a basis. The Court explained in Lewis v. United States:

[H]ow necessary it is that a prisoner (when put to defend his life) should have good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice even without being able to assign a reason for such his dislike.

146 U.S. at 146 U. S. 376. The effect of the Court's decision, however, will be to force the defendant to come forward and "articulate a neutral explanation," ante at 476 U. S. 98, for his peremptory challenge, a burden he probably cannot meet. This example demonstrates that today's holding will produce juries that the parties do not believe are truly impartial. This will surely do more than "disconcert" litigants; it will diminish confidence in the jury system.

A further painful paradox of the Court's holding is that it is likely to interject racial matters back into the jury selection process, contrary to the general thrust of a long line of Court decisions and the notion of our country as a "melting pot." In Avery v. Georgia, 345 U. S. 559 (1953), for instance, the Court confronted a situation where the selection of the venire was done through the selection of tickets from a box; the names of whites were printed on tickets of one color and the names of blacks were printed on different color tickets. The Court had no difficulty in striking down such a scheme. Justice Frankfurter observed that

opportunity for working of a discriminatory system exists whenever the mechanism for jury selection has a component part, such as the slips here, that differentiates between white and colored....

Id. at 345 U. S. 564 (concurring) (emphasis added).

Today we mark the return of racial differentiation as the Court accepts a positive evil for a perceived one. Prosecutors and defense attorneys alike will build records in support of their claims that peremptory challenges have been exercised in a racially discriminatory fashion by asking jurors to state their racial background and national origin for the record, despite the fact that "such questions may be offensive to some jurors, and thus are not ordinarily asked on voir dire. " People v. Motton, 39 Cal.3d 596, 604, 704 P.2d 176, 180, modified, 40 Cal.3d 4b (1985) (advance sheet). [ Footnote 4/10 ] This process is sure to tax even the most capable counsel and judges, since determining whether a prima facie case has been established will "require a continued monitoring and recording of the group' composition of the panel present and prospective...." People v. Wheeler, 22 Cal.3d 258, 294, 583 P.2d 748, 773 (1978) (Richardson, J., dissenting).

Even after a "record" on this issue has been created, disputes will inevitably arise. In one case, for instance, a conviction was reversed based on the assumption that no blacks were on the jury that convicted a defendant. See People v. Motton, supra. However, after the court's decision was announced, Carolyn Pritchett, who had served on the jury, called the press to state that the court was in error, and that she was black. 71 A.B.A.J. 22 (Nov.1985). The California court nonetheless denied a rehearing petition. [ Footnote 4/11 ]

The Court does not tarry long over any of these difficult, sensitive problems, preferring instead to gloss over them as swiftly as it slides over centuries of history: "[W]e make no attempt to instruct [trial] courts how best to implement our holding today." Ante at 476 U. S. 99 -100, n. 24. That leaves roughly 7,000 general jurisdiction state trial judges and approximately 500 federal trial judges at large to find their way through the morass the Court creates today. The Court essentially wishes these judges well as they begin the difficult enterprise of sorting out the implications of the Court's newly created "right." I join my colleagues in wishing the Nation's judges well as they struggle to grasp how to implement today's holding. To my mind, however, attention to these "implementation" questions leads quickly to the conclusion that there is no "good" way to implement the holding, let alone a "best" way. As one apparently frustrated judge explained after reviewing a case under a rule like that promulgated by the Court today, judicial inquiry into peremptory challenges

from case to case will take the courts into the quagmire of quotas for groups that are difficult to define and even more difficult to quantify in the courtroom. The pursuit of judicial perfection will require both trial and appellate courts to provide speculative and impractical answers to artificial questions.

Holley v. J & S Sweeping Co., 143 Cal.App.3d 588, 595-596, 192 Cal.Rptr. 74, 79 (1983) (Holmdahl, J., concurring) (footnote omitted). The Court's effort to "furthe[r] the ends of justice," ante at 476 U. S. 99, and achieve hoped-for utopian bliss may be admired, but it is far more likely to enlarge the evil "sporting contest" theory of criminal justice roundly condemned by Roscoe Pound almost 80 years ago to the day. See Pound, Causes of Popular Dissatisfaction with the Administration of Justice, August 29, 1906, reprinted in The Pound Conference: Perspectives on Justice in the Future 337 (A. Levin & R. Wheeler eds.1979). Pound warned then that "too much of the current dissatisfaction has a just origin in our judicial organization and procedure." Id. at 352. I am afraid that today's newly created constitutional right will justly give rise to similar disapproval.

III

I also add my assent to JUSTICE WHITE's conclusion that today's decision does not apply retroactively. Ante at 476 U. S. 102 (concurring); see also ante at 476 U. S. 111 (O'CONNOR, J., concurring). We held in Solem v. Stumes, 465 U. S. 638, 465 U. S. 643 (1984), that

'[t]he criteria guiding resolution of the [retroactivity] question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.' Stovall v. Denno, 388 U. S. 293, 388 U. S. 297 (1967).

If we are to ignore Justice Harlan's admonition that making constitutional changes prospective only "cuts this Court loose from the force of precedent," Mackey v. United States, 401 U. S. 667, 401 U. S. 680 (1971) (concurring in judgment), then all three of these factors point conclusively to a nonretroactive holding. With respect to the first factor, the new rule the Court announces today is not designed to avert "the clear danger of convicting the innocent." Tehan v. United States ex rel. Shott, 382 U. S. 406, 382 U. S. 416 (1966). Second, it is readily apparent that "law enforcement authorities and state courts have justifiably relied on a prior rule of law...." Solem, 465 U.S. at 465 U. S. 645 -646. Today's holding clearly "overrule[s] [a] prior decision" and drastically "transform[s] standard practice." Id. at 465 U. S. 647. This fact alone "virtually compel[s]" the conclusion of nonretroactivity. United States v. Johnson, 457 U. S. 537, 457 U. S. 549 -550 (1982). Third, applying today's decision retroactively obviously would lead to a whole host of problems, if not utter chaos. Determining whether a defendant has made a " prima facie showing" of invidious intent, ante at 476 U. S. 97, and, if so, whether the state has a sufficient "neutral explanation" for its actions, ibid., essentially requires reconstructing the entire voir dire, something that will be extremely difficult even if undertaken soon after the close of the trial. [ Footnote 4/12 ] In most cases, therefore, retroactive application of today's decision will be "a virtual impossibility." State v. Neil, 457 So.2d 481, 488 (Fla.1984).

In sum, under our prior holdings, it is impossible to construct even a colorable argument for retroactive application. The few States that have adopted judicially created rules similar to that announced by the Court today have all refused full retroactive application. See People v. Wheeler, 22 Cal.3d at 283, n. 31, 583 P.2d at 766, n. 31; State v. Neil, supra, at 488; Commonwealth v. Soares, 377 Mass. 461, 493, n. 38, 387 N.E.2d 499, 518, n. 38, cert. denied, 444 U.S. 881 (1979). [ Footnote 4/13 ] I therefore am persuaded by JUSTICE WHITE's position, ante at 476 U. S. 102 (concurring), that today's novel decision is not to be given retroactive effect.

IV

An institution like the peremptory challenge that is part of the fabric of our jury system should not be casually cast aside, especially on a basis not raised or argued by the petitioner. As one commentator aptly observed:

The real question is whether to tinker with a system, be it of jury selection or anything else, that has done the job for centuries. We stand on the shoulders of our ancestors, as Burke said. It is not so much that the past is always worth preserving, he argued, but rather that it is with infinite caution that any man ought to venture upon pulling down an edifice, which has answered in any tolerable degree for ages the common purposes of society....

Younger, Unlawful Peremptory Challenges, 7 Litigation 23, 56 (Fall 1980). At the very least, this important case reversing centuries of history and experience ought to be set for reargument next Term.

Notes

[ Footnote 4/1 ]

In Colorado v. Connelly, JUSTICE BRENNAN, joined by JUSTICE STEVENS, filed a memorandum objecting to this briefing of an additional question, explaining that

it is hardly for this Court to 'second chair' the prosecutor to alter his strategy or guard him from mistakes. Under this Court's Rule 21.1(a), '[o]nly the questions set forth in the petition or fairly included therein will be considered by the Court.' Given petitioner's express disclaimer that [this] issue is presented, that question obviously is not 'fairly included' in the question submitted. The Court's direction that the parties address it anyway makes meaningless in this case the provisions of this Rule and is plainly cause for concern, particularly since it is clear that a similar dispensation would not be granted a criminal defendant, however strong his claim.

474 U.S. at 1052. If the Court's limited step of directing briefing on an additional point at the time certiorari was granted was "cause for concern," I would think a fortiori that the far more expansive action the Court takes today would warrant similar concern.

[ Footnote 4/2 ]

JUSTICE STEVENS, joined by JUSTICE BRENNAN and JUSTICE MARSHALL, dissented from the order directing reargument in New Jersey v. T.L.O. They explained:

The single question presented to the Court has now been briefed and argued. Evidently unable or unwilling to decide the question presented by the parties, the Court, instead of dismissing the writ of certiorari as improvidently granted, orders reargument directed to the questions that [petitioner] decided not to bring here.... Volunteering unwanted advice is rarely a wise course of action. * * * *" I believe that the adversary process functions most effectively when we rely on the initiative of lawyers, rather than the activism of judges, to fashion the questions for review.

468 U.S. at 1215-1216.

JUSTICE STEVENS' proffered explanation notwithstanding, see ante at 476 U. S. 109 (concurring opinion), I am at a loss to discern how one can consistently hold these views and still reach the question the Court reaches today.

[ Footnote 4/3 ]

This fact alone distinguishes the cases cited by JUSTICE STEVENS as support for today's unprecedented action. See ante at 476 U. S. 111, n. 5. In Bender v. Williamsport Area School Dist., 475 U. S. 534, 475 U. S. 551 (1986) (BURGER, C.J., dissenting), Colorado v. Nunez, 465 U. S. 324 (1984) (WHITE, J., concurring), and Florida v. Casal, 462 U. S. 637, 462 U. S. 639 (1983) (BURGER, C.J., concurring), the issues discussed were all the primary issues advanced, briefed, and argued by the petitioners in this Court or related directly to the Court's basis for deciding the case. To be sure, some of the discussion in these separate statements might be parsimoniously viewed as "[un]necessary to the disposition of the case or petition." Ante at 476 U. S. 111, n. 5. But under this approach, many dissenting opinions and dissents from the denial of certiorari would have to be condemned as well. More important, in none of these separate statements was it even suggested that it would be proper to overturn a state court judgment on issues that had not been briefed and argued by petitioner in this Court, as the Court does today. Finally, in Colorado v. Connelly, 474 U. S. 1050 (1986), and New Jersey v. T.L.O., 468 U. S. 1214 (1984), we directed briefing and argument on particular questions before deciding them. Such a procedure serves the desirable end of ensuring that the issues which the Court wishes to consider will be fully briefed and argued. My suggestion that the Court hear reargument of this case serves the same end.

[ Footnote 4/4 ]

While all these distinctions might support a claim under conventional equal protection principles, a defendant would also have to establish standing to raise them before obtaining any relief. See Alexander v. Louisiana, 405 U. S. 625, 405 U. S. 633 (1972).

[ Footnote 4/5 ]

The Court is also silent on whether a State may demonstrate that its use of peremptories rests not merely on "assumptions," ante at 476 U. S. 97, but on sociological studies or other similar foundations. See Saltzburg & Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 Md.L.Rev. 337, 365, and n. 124 (1982). For "[i]f the assessment of a juror's prejudices based on group affiliation is accurate,... then counsel has exercised the challenge as it was intended -to remove the most partial jurors." Id. at 365.

[ Footnote 4/6 ]

[E]very jurisdiction which has spoken to the matter, and prohibited prosecution case-specific peremptory challenges on the basis of cognizable group affiliation, has held that the defense must likewise be so prohibited.

United States v. Leslie, 783 F.2d 541, 565 (CA5 1986) (en banc).

[ Footnote 4/7 ]

One court has warned that overturning Swain has "[t]he potential for stretching out criminal trials that are already too long, by making the voir dire a Title VII proceeding in miniature." United States v. Clark, 737 F.2d 679, 682 (CA7 1984). That "potential" is clearly about to be realized.

[ Footnote 4/8 ]

It is worth observing that Congress has been unable to locate the constitutional deficiencies in the peremptory challenge system that the Court discerns today. As the Solicitor General explains in urging a rejection of the Sixth Amendment issue presented by this petition and an affirmance of the decision below,

[i]n reconciling the traditional peremptory challenge system with the requirements of the Sixth Amendment, it is instructive to consider the accommodation made by Congress in the Jury Selection and Service Act of 1968, 28 U.S.C. 1861 et seq.... [T]he House Report makes clear that... the bill leaves undisturbed the right of a litigant to exercise his peremptory challenges to eliminate jurors for purely subjective reasons.

Brief for United States as Amicus Curiae 20, n. 11 (quoting H.R.Rep. No. 1076, 90th Cong., 2d Sess., 5-6 (1968)).

[ Footnote 4/9 ]

This question, required by Turner in certain capital cases, demonstrates the inapplicability of traditional equal protection analysis to a jury voir dire seeking an impartial jury. Surely the question rests on generalized, stereotypic racial notions that would be condemned on equal protection grounds in other contexts.

[ Footnote 4/10 ]

The California Supreme Court has attempted to finesse this problem by asserting that

discrimination is more often based on appearances than verified racial descent, and a showing that the prosecution was systematically excusing persons who appear to be Black would establish a prima facie case

of racial discrimination. People v. Motton, 39 Cal.3d at 604, 704 P.2d at 180. This suggests, however, that proper inquiry here concerns not the actual race of the jurors who are excluded, but rather counsel's subjective impressions as to what race they spring from. It is unclear just how a "record" of such impressions is to be made.

[ Footnote 4/11 ]

Similar difficulties may lurk in this case on remand. The Court states as fact that "a jury composed only of white persons was selected." Ante at 476 U. S. 83. The only basis for the Court's finding is the prosecutor's statement, in response to a question from defense counsel, that, "[i]n looking at them, yes; it's an all-white jury." App. 3.

It should also be underscored that the Court today does not hold that petitioner has established a " prima facie case" entitling him to any form of relief. Ante at 476 U. S. 100.

[ Footnote 4/12 ]

Petitioner concedes that it would be virtually impossible for the prosecutor in this case to recall why he used his peremptory challenges in the fashion he did. Brief for Petitioner 35.

[ Footnote 4/13 ]

Although Delaware has suggested that it might follow a rule like that adopted by the Court today, see Riley v. State, 496 A.2d 997 (1985), the issue of retroactive application of the rule does not appear to have been litigated in a published decision.