Holland v. Illinois

Justice Scalia

delivered the opinion of the Court.

The questions presented by this case are (1) whether a white defendant has standing to raise a Sixth Amendment *476 challenge to the prosecutor’s exercise of peremptory challenges to exclude all black potential jurors from his petit jury, and (2) whether such exclusion violates his Sixth Amendment right to trial by an impartial jury.

H

Petitioner Daniel Holland was charged in the Circuit Court of Cook County, Illinois, with aggravated kidnaping, rape, deviate sexual assault, armed robbery, and aggravated battery. According to his allegations, a venire of 30 potential jurors was assembled, 2 of whom were black. Petitioner’s counsel objected to those of the State’s peremptory challenges that struck the two black venire members from the petit jury, on the ground that petitioner had a Sixth Amendment right to “be tried by a representative cross section of the community.” App. 7-8. The trial judge overruled the objection, and petitioner was subsequently convicted of all except the aggravated battery charge. The convictions were reversed by the Illinois Appellate Court, First District, 147 Ill. App. 3d 323, 497 N. E. 2d 1230 (1986), on grounds that are irrelevant here, but on further appeal by the State were reinstated by the Illinois Supreme Court, which rejected petitioner’s Equal Protection Clause and Sixth Amendment challenges to the exclusion of the black jurors. 121 Ill. 2d 136, 520 N. E. 2d 270 (1987). We granted Holland’s petition for certiorari asserting that the Sixth Amendment holding was error. 489 U. S. 1051 (1989).

rH h-i

The threshold question is whether petitioner, who is white, has standing to raise a Sixth Amendment challenge to the exclusion of blacks from his jury. We hold that he does.

In Batson v. Kentucky, 476 U. S. 79, 96 (1986), we said that to establish a prima facie Equal Protection Clause violation in the discriminatory exclusion of petit jurors, the defendant “must show that he is a member of a cognizable racial *477 group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race.” (Emphasis added.) We have never suggested, however, that such a requirement of correlation between the group identification of the defendant and the group identification of excluded venire members is necessary for Sixth Amendment standing. To the contrary, our cases hold that the Sixth Amendment entitles every defendant to object to a venire that is not designed to represent a fair cross section of the community, whether or not the systematically excluded groups are groups to which he himself belongs. See, e. g., Duren v. Missouri, 439 U. S. 357 (1979); Taylor v. Louisiana, 419 U. S. 522 (1975). Thus, in Taylor, we found standing in circumstances analogous to petitioner’s:

“The State first insists that Taylor, a male, has no standing to object to the exclusion of women from his jury. But Taylor’s claim is that he was constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury by reason of the exclusion of women. Taylor was not a member of the excluded class; but there is no rule that claims such as Taylor presents may be made only by those defendants who are members of the group excluded from jury service. ” Id., at 526.

Of course, in this case petitioner seeks an extension of the fair-cross-section requirement from the venire to the petit jury—but that variation calls into question the scope of the Sixth Amendment guarantee, not his standing to assert it. We proceed, then, to the merits of the claim.

III

Petitioner asserts that the prosecutor intentionally used his peremptory challenges to strike all black prospective jurors solely on the basis of their race, thereby preventing a distinctive group in the community from being represented *478 on his jury. This, he contends, violated the Sixth Amendment by denying him a “fair possibility” of a petit jury representing a cross section of the community. Petitioner invites us to remedy the perceived violation by incorporating into the Sixth Amendment the test we devised in Batson to permit black defendants to establish a prima facie violation of the Equal Protection Clause. Under petitioner’s approach, a defendant of any race could establish a prima facie violation of the Sixth Amendment by objecting to the use of peremptory challenges to exclude all blacks from the jury. The burden would then shift to the prosecutor to show that the exercise of his peremptory challenges was not based on intentional discrimination against the black potential jurors solely because of their race. Only if the prosecutor could then show nonracial grounds for the strikes would no Sixth Amendment violation be found.

We reject petitioner’s fundamental thesis that a prosecutor’s use of peremptory challenges to eliminate a distinctive group in the community deprives the defendant of a Sixth Amendment right to the “fair possibility” of a representative jury. While statements in our prior cases have alluded to such a “fair possibility” requirement, satisfying it has not been held to require anything beyond the inclusion of all cognizable groups in the venire, see Lockhart v. McCree, 476 U. S. 162 (1986); Duren, supra; Taylor, supra, and the use of a jury numbering at least six persons, see Ballew v. Georgia, 435 U. S. 223 (1978); Williams v. Florida, 399 U. S. 78 (1970). A prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury.

It has long been established that racial groups cannot be excluded from the venire from which a jury is selected. That constitutional principle was first set forth not under the Sixth Amendment but under the Equal Protection Clause. *479 Strauder v. West Virginia, 100 U. S. 303 (1880). In that context, the object of the principle and the reach of its logic are not established by our common-law traditions of jury trial, but by the Fourteenth Amendment’s prohibition of unequal treatment in general and racial discrimination in particular. That prohibition therefore has equal application at the petit jury and the venire stages, as our cases have long recognized. Thus, in a decision rendered only 12 years after the Fourteenth Amendment was enacted, striking down a West Virginia law that excluded blacks from jury service, we said:

“[I]t is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offence against the State. It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?” Strauder, supra, at 309.

Four Terms ago, in Batson, we squarely held that race-based exclusion is no more permissible at the individual petit jury stage than at the venire stage — not because the two stages are inseparably linked, but because the intransigent prohibition of racial discrimination contained in the Fourteenth Amendment applies to both of them.

*480 Our relatively recent cases, beginning with Taylor v. Louisiana, hold that a fair-cross-section venire requirement is imposed by the Sixth Amendment, which provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . The fair-cross-section venire requirement is obviously not explicit in this text, but is derived from the traditional understanding of how an “impartial jury” is assembled. That traditional understanding includes a representative ve-nire, so that the jury will be, as we have said, “drawn from a fair cross section of the community,” Taylor, 419 U. S., at 527 (emphasis added). But it has never included the notion that, in the process of drawing the jury, that initial representativeness cannot be diminished by allowing both the accused and the State to eliminate persons thought to be inclined against their interests — which is precisely how the traditional peremptory-challenge system operates. As we described that system in Swain v. Alabama. 380 U. S. 202 (1965):

“[The peremptory challenge] is often exercised ... on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be.” Id., at 220-221 (citation and footnote omitted).

The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does). Without that requirement, the State could draw up jury lists in such manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes of defendants, and thus more likely to yield *481 petit juries with similar disposition. The State would have, in effect, unlimited peremptory challenges to compose the pool in its favor. The fair-cross-section venire requirement assures, in other words, that in the process of selecting the petit jury the prosecution and defense will compete on an equal basis.

But to say that the Sixth Amendment deprives the State of the ability to “stack the deck” in its favor is not to say that each side may not, once a fair hand is dealt, use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side. Any theory of the Sixth Amendment leading to that result is implausible. The tradition of peremptory challenges for both the prosecution and the accused was already venerable at the time of Blackstone, see 4 W. Blackstone, Commentaries 346-348 (1769), was reflected in a federal statute enacted by the same Congress that proposed the Bill of Rights, see Act of Apr. 30, 1790, ch. 9, §30, 1 Stat. 119, was recognized in an opinion by Justice Story to be part of the common law of the United States, see United States v. Marchant, 12 Wheat. 480, 483-484 (1827), and has endured through two centuries in all the States, see Swain, supra, at 215-217. The constitutional phrase “impartial jury” must surely take its content from this unbroken tradition.1 One could plausibly *482 argue (though we have said the contrary, see Stilson v. United States, 250 U. S. 583, 586 (1919)) that the requirement of an “impartial jury” impliedly compels peremptory challenges, but in no way could it be interpreted directly or indirectly to prohibit them. We have gone out of our way to make this clear in our opinions. In Lockhart, we said: “We have never invoked the fair-cross-section principle to invali *483 date the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large.” 476 U. S., at 173. In Taylor, we “emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition.” 419 U. S., at 538. Accord, Duren v. Missouri, 439 U. S., at 363-364, and n. 20.

The fundamental principle underlying today’s decision is the same principle that underlay Lockhart, which rejected the claim that allowing challenge for cause, in the guilt phase of a capital trial, to jurors unalterably opposed to the death penalty (so-called “Wii/ierspoow-excludables”) violates the fair-cross-section requirement. It does not violate that requirement, we said, to disqualify a group for a reason that is related “to the ability of members of the group to serve as jurors in a particular case.” 476 U. S., at 175 (emphasis added). The “representativeness” constitutionally required at the venire stage can be disrupted at the jury-panel stage to serve a State’s “legitimate interest.” Ibid. In Lockhart the legitimate interest was “obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.” Id., at 175-176. Here the legitimate interest is the assurance of impartiality that the system of peremptory challenges has traditionally provided.

The rule we announce today is not only the only plausible reading of the text of the Sixth Amendment, but we think it best furthers the Amendment’s central purpose as well. Although the constitutional guarantee runs only to the individual and not to the State, the goal it expresses is jury impartiality with respect to both contestants: neither the defendant nor the State should be favored. This goal, it seems to us, *484 would positively be obstructed by a petit jury cross-section requirement which, as we have described, would cripple the device of peremptory challenge. We have acknowledged that that device occupies “an important position in our trial procedures,” Batson, 476 U. S., at 98, and has indeed been considered “a necessary part of trial by jury,” Swain v. Alabama, 880 U. S., at 219. Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of “eliminat[ing] extremes of partiality on both sides,” ibid., thereby “assuring the selection of a qualified and unbiased jury,” Batson, supra, at 91 (emphasis added).2

Petitioner seeks to minimize the harm that recognition of his claim would cause to the peremptory challenge system by assuring us that the striking of identifiable community groups other than blacks need not be accorded similar treatment. That is a comforting assurance, but the theory of petitioner’s case is not compatible with it. If the goal of the Sixth Amendment is representation of a fair cross section of the community on the petit jury, then intentionally using peremptory challenges to exclude any identifiable group should be impermissible — which would, as we said in Lockhart, “likely require the elimination of peremptory challenges.” 476 U. S., at 178.

Justice Marshall argues that prohibiting purposeful peremptory challenge of members of distinctive groups “would leave the peremptory challenge system almost entirely untouched” because the Court is unlikely to recognize many groups as “distinctive.” Post, at 502. Misplaced optimism on this subject is cost free to those who in any event “would *485 . . . eliminat[e] peremptory challenges entirely in criminal cases,” Batson, supra at 107 (Marshall, J., concurring), but we see no justification for indulging it. To support his prediction, Justice Marshall states that the only groups the Court has recognized as distinctive thus far have been women and certain racial groups, post, at 502 (citing Lock-hart, 476 U. S., at 175). That is true enough, but inasmuch as those groups happen to constitute all the groups we have considered in the venire context, what it demonstrates is not how difficult it is to meet our standards for distinctiveness, but how few groups are systematically excluded from the venire. As we have discussed, however, many groups are regularly excluded from the petit jury through peremptory challenge. Lockhart itself suggests, quite rightly, that even so exotic a group as “Witherspoon-ex.clu&shles” would be a distinctive group whose rejection at the venire stage would violate the Sixth Amendment. 476 U. S., at 176. If, as Justice Marshall would have it, rejection at the venire stage and rejection at the panel stage are one and the same, there is every reason to believe that many commonly exercised bases for peremptory challenge would be rendered unavailable.

Dispassionate analysis does not bear out Justice Marshall’s contentions that we have “ignor[ed] precedent after precedent,” post, at 503, “rejected]. . . the principles underlying a whole line of cases,” ibid., and suffer from “selective amnesia with respect to our cases in this area,” post, at 500. His dissent acknowledges that the fair-cross-section decisions it discusses — Taylor, Duren, and Lockhart — “Yeierr[ed] to exclusion of prospective jurors from venires, not their exclusion from petit juries by means of peremptory challenges,” post, at 496. It nonetheless counts those cases as “well-grounded precedents,” post, at 490, because “the particular context does not affect the analysis,” post, at 496. That may be the dissent’s view, but it was assuredly not the view expressed in the cases themselves. As noted earlier, all three *486 of those opinions specifically disclaimed application of their analysis to the petit jury. See supra, at 482-483. Last Term, in Teague v. Lane, 489 U. S. 288 (1989), we were asked to decide the very same question we decide today— “whether,” as Justice O’Connor’s plurality opinion put it, “the Sixth Amendment’s fair cross section requirement should now be extended to the petit jury.” Id., at 292. We did not reach that question because the four-Justice plurality, with Justice White agreeing as to the result, held that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced,” id., at 310, and found that in asserting a fair-cross-section requirement at the petit jury stage petitioner was urging adoption of such a “new rule,” id., at 301 — that is, a rule producing a result “not dictated by [prior] precedent,” ibid, (emphasis in original). Though there were four Justices in dissent, only two of them expressed the view that a petit jury fair-cross-section requirement was compelled by prior precedent. See id., at 340-344 (Brennan, J., dissenting). In short, there is no substance to the contention that what we hold today “ignor[es] precedent after precedent.”

Justice Marshall’s dissent rolls out the ultimate weapon, the accusation of insensitivity to racial discrimination — which will lose its intimidating effect if it continues to be fired so randomly. It is not remotely true that our opinion today “lightly . . . set[s] aside” the constitutional goal of “eliminat[ing] racial discrimination in our system of criminal justice.” Post, at 503-504. The defendant in this case is not a black man, but a convicted white rapist who seeks to use the striking of blacks from his jury to overturn his conviction. His Sixth Amendment claim would be just as strong if the object of the exclusion had been, not blacks, but postmen, or lawyers, or clergymen, or any number of other identifiable groups. Race as such has nothing to do with the legal issue in this case. We do not hold that the systematic exclusion of *487 blacks from the jury system through peremptory challenges is lawful; it obviously is not, see Batson, supra. . We do not even hold that the exclusion of blacks through peremptory challenges in this particular trial was lawful. Nor do we even hold that this particular (white) defendant does not have a valid constitutional challenge to such racial exclusion.3 All we hold is that he does not have a valid constitutional challenge based on the Sixth Amendment — which no more forbids the prosecutor to strike jurors on the basis of race than it forbids him to strike them on the basis of innumerable other generalized characteristics.

To be sure, as Justice Marshall says, the Sixth Amendment sometimes operates “as a weapon to combat racial discrimination,” post, at 504, n. 2 — just as statutes against murder sometimes operate that way. But it is no more reasonable to portray this as a civil rights case than it is to characterize a proposal for increased murder penalties as an antidiscrimination law. Since only the Sixth Amendment claim, and not the equal protection claim, is at issue, the question before us is not whether the defendant has been unlawfully discriminated against because he was white, or whether the excluded jurors have been unlawfully discrimi *488 nated against because they were black, but whether the defendant has been denied the right to “trial ... by an impartial jury.” The earnestness of this Court’s commitment to racial justice is not to be measured by its willingness to expand constitutional provisions designed for other purposes beyond their proper bounds.

The judgment of the Illinois Supreme Court is

Affirmed.

Justice Stevens asserts that our “historical claims are significantly overstated,” and that we “will have to do better than Blackstone and the 1790 Congress” for support. Post, at 518, n. 15. As to the former, he quotes “[w]hat Blackstone actually said” — namely, that the King had no peremptory challenges but only challenges for cause. Ibid. But Justice Stevens’ quotation should have continued to the next two sentences of what Blackstone actually said: “However it is held, that the king need not assign his cause of challenge, till all the panel is gone through, and unless there cannot be a full jury without the persons so challenged. And then, and not sooner, the king’s counsel must shew the cause: otherwise the juror shall be sworn.” 4 W. Blackstone, Commentaries 347 (1769).

íhe 1790 legislation provided that if, in a treason or capital prosecution, the defendant should refuse to plead, or should repeatedly exercise pe *482 remptory challenges past a certain number (35 for treason, 20 for other capital cases), “the court . . . shall notwithstanding proceed to . . . trial ... as if [the defendant] had pleaded not guilty.” 1 Stat. 119. The statute’s relevance to the present inquiry is that it constitutes acknowledgment of the common-law practice of peremptory challenge, a practice that unquestionably extended to defense and prosecution alike. The Supreme Court decision cited in text, United States v. Marchant, 12 Wheat. 480 (1827), specifically interpreted the Act to permit “[t]he acknowledged right of peremptory challenge existing in the crown before the statute of 33 Edw. I., and the uniform practice which has prevailed since that statute,” id., at 484 (emphasis added). Justice Stevens relies upon a later case, United States v. Shackleford, 18 How. 588, 590 (1856), which said that the 1790 Act does not demand that prosecutorial peremptory challenges remain available in all federal courts despite the Act of July 20, 1840, 5 Stat. 394, which required peremptory challenges to conform with state law. This entirely misses our point — which is not that the 1790 Act made the prosecutor’s peremptory challenge a part of federal statutory law, but merely that (as Marchant held) it acknowledged the prosecutor’s peremptory challenge to be part of the well-established common law that formed the background of the Sixth Amendment. Far from refuting this, Shackleford reinforces it, referring to the “qualified right [of peremptory challenge], existing at common law, by the government.” 18 How., at 590.

Justice Stevens contends that the historical record is in any event of not much importance to the question before us, since “[t]he Court has forsworn reliance on venerable history to give meaning to the Sixth Amendment’s numerosity and unanimity requirements,” and so should not rely upon it here either. Post, at 518. We have certainly held that a departure from historical practice regarding number and unanimity of jurors does not necessarily deny the right of jury trial. But that is quite different from saying that adherence to historical practice can deny the right of jury trial. Under a historically unencumbered Sixth Amendment of the sort Justice Stevens apparently envisions, it would be conceivable that a 12-person or a unanimous jury is unconstitutional.

Justice Stevens states that a prosecutor’s “assumption that a black juror may be presumed to be partial simply because he is black ... is impermissible since Batson.” Post, at 519. It is undoubtedly true that, since Batson, -such an assumption violates the Equal Protection Clause. That has nothing to do with whether it (and, necessarily, many other group-based assumptions) violates the Sixth Amendment.

As noted at the outset, petitioner did not seek review of the denial of his Equal Protection Clause claim. Our grant of certiorari was limited to the Sixth Amendment question, and the equal protection question has been neither briefed nor argued.

Justice Stevens’ contention that the equal protection question should nonetheless be decided, post, at 506-507, contradicts this Court’s Rule 14.1(a), which states: “Only the questions set forth in the petition, or fairly included therein, will be considered by the Court.” It is almost unprecedented to accept certiorari on a question involving one constitutional provision and then to decide the ease under a different constitutional provision neither presented, briefed, nor argued. The exception was Batson, where, as accurately described in Chief Justice Burger’s dissent, “the Court departed] dramatically from its normal procedure without any explanation.” 476 U. S., at 115. Justice Stevens asserts that Batson “makes it appropriate” to reach the equal protection claim here, post, at 507. We decline to convert Batson from an unexplained departure to an unexplained rule.