Why Courts Should Control the Peremptory Challenge Process
Core Thesis
The peremptory challenge has long been defended as an ordinary tool of trial practice, a discretionary device that allows lawyers to remove prospective jurors without establishing legal disqualification. That description is technically accurate, but it conceals the more serious point. Jury selection is not an ordinary tactical contest. It is the process by which the state constitutes the body that will decide guilt, liability, liberty, property, credibility, and, at times, life itself. A legal system that claims to value equal protection, neutral adjudication, and public legitimacy should not permit that body to be shaped by exclusions for which, at the critical moment, no reason need be given. New York still preserves that structure. In criminal cases, CPL § 270.25 defines a peremptory challenge as an objection to a prospective juror “for which no reason need be assigned,” and directs that the court exclude the challenged person from service. In civil cases, CPLR § 4109 likewise allocates peremptory challenges to the parties. The state system thus continues to authorize party-controlled exclusion at the threshold of adjudication.
The same defect exists in federal court. Federal Rule of Civil Procedure 47 provides that the court may itself examine prospective jurors or allow counsel to do so, but Rule 47(b) then requires the court to allow the number of peremptory challenges provided by 28 U.S.C. § 1870. Section 1870, in turn, gives each party three peremptory challenges in civil cases, while reserving challenges for cause to the court. The division is telling. Federal procedure formally places the court at the center of voir dire, yet still preserves a sphere of discretionary party exclusion that does not depend on a judicial finding of disqualification. That is not a minor procedural detail. It is a transfer of constitutive power over the jury from the court to the litigants themselves.
Federal criminal procedure is no different in principle. Rule 24 of the Federal Rules of Criminal Procedure allows the court to examine prospective jurors or permit the attorneys to do so, but Rule 24(b) expressly allocates peremptory challenges by offense category: twenty per side in capital cases, six for the government and ten for the defendant or defendants jointly in other felony cases, and three per side in misdemeanor cases. Rule 24(c) also provides additional peremptory challenges for alternate jurors. In other words, even in the federal criminal system—where liberty is directly at stake and where the public interest in legitimacy is at its highest—the rules still assume that the parties are entitled to a quota of discretionary removals untethered to any judicial finding that a juror cannot serve fairly. The court supervises the process, but it does not monopolize the decisive act of exclusion.
That architecture would be easier to defend if history had shown that discretionary striking could be trusted. It has shown the opposite. Modern peremptory-challenge doctrine is defined by the judiciary’s repeated attempt to contain the discriminatory consequences of a mechanism it has never fully relinquished. In Batson v. Kentucky, the Supreme Court held that the Equal Protection Clause forbids the prosecutor from using peremptory challenges to exclude jurors on account of race. Batson mattered because it dismantled the near-impossible evidentiary burden imposed by the prior regime and allowed courts to confront discriminatory striking within an individual case. But Batson also revealed the deeper contradiction that still remains. The Court condemned discriminatory use of peremptories while preserving the peremptory challenge itself as a discretionary instrument of exclusion. The doctrine forbade one use of the device without eliminating the device that made the abuse predictable in the first place.
That contradiction is the core of the argument here. The problem is not merely that some lawyers act in bad faith, although some plainly do. The problem is structural. Once the law gives parties a procedural instrument that operates through intuition, impression, coded assumptions, and post hoc rationalization, the resulting process cannot honestly be described as neutral. It becomes a constitutional design problem. A courtroom may be solemn, robed, and heavily regulated, but if the body that will render judgment can still be materially shaped by discretionary party preference, then the state has delegated part of adjudicative legitimacy to a private sorting mechanism. That is too much constitutional weight to place on adversarial instinct.
The persistence of the issue proves the point. This is not a historical embarrassment that the law has already outgrown. On March 31, 2026, the Supreme Court heard argument in Pitchford v. Cain, a capital case presenting, among other questions, whether the Mississippi courts short-circuited the third step of the Batson analysis after the prosecutor struck four Black prospective jurors. Whatever the Court ultimately decides, the fact that the issue is still before the Supreme Court four decades after Batson is itself an indictment of the existing framework. A doctrine that repeatedly returns to the question whether courts meaningfully completed the required anti-discrimination inquiry is not a doctrine that has solved the underlying problem. It is a doctrine managing the visible failures of a structure it still refuses to abandon.
The conventional defense of peremptories does not answer that point. The standard claim is that they are needed to remove latent bias that cannot be proven for cause. But that rationale collapses under examination. If a juror is genuinely incapable of fairness, the court should be able to determine that through questioning, record development, and an articulated ruling. If the supposed bias cannot be identified, tested, and judicially evaluated, then what the system is protecting is not impartiality. It is discretionary exclusion based on unreviewable suspicion. That may serve the preferences of lawyers. It does not serve the legitimacy of the court. And legitimacy—not partisan comfort—is the constitutional interest that should control the composition of a jury.
I. The Constitutional Myth of Neutral Jury Selection
Americans are taught to think of jury selection as a neutral judicial process. The image is familiar and reassuring. Citizens are summoned by law, screened in open court, instructed by a judge, and seated only after the legal system determines who can fairly decide the case. That is the civics-book version. It is not entirely false, but it is incomplete in the one place that matters most. Between the court’s formal supervision and the jury’s final oath lies a zone of discretionary exclusion that still belongs not to the judge, but to the litigants. In both federal and New York practice, the court may examine prospective jurors or permit counsel to do so, yet the rules continue to reserve a set number of peremptory challenges to the parties. Federal Rule of Civil Procedure 47 requires the court to allow the number of peremptory challenges provided by 28 U.S.C. § 1870. Federal Rule of Criminal Procedure 24 does the same in criminal cases, allocating peremptory strikes by offense category. New York preserves the same structure in both criminal and civil practice. CPL § 270.25 still defines a peremptory challenge as an objection for which “no reason need be assigned,” while CPLR § 4109 allocates each side a fixed number of peremptories in civil cases. The public sees a court selecting a jury. The rules still permit counsel to shape it through discretionary rejection.
That procedural detail is often treated as ordinary trial mechanics. It is not. The jury is not a private advisory body chosen for the convenience of the lawyers. It is the constitutional decision-maker in the room. In criminal court, it decides whether the state will deprive a person of liberty, and sometimes life. In civil court, it resolves claims involving property, bodily injury, employment, contracts, reputation, and official wrongdoing. The Supreme Court has been explicit on this point. In Edmonson v. Leesville Concrete Co., the Court described the jury as a “quintessential governmental body” and explained that the jury exercises the power of the court and of the government that confers the court’s jurisdiction. That observation should end the fiction that jury composition is merely another field for partisan maneuver. If the jury is the tribunal through which the state speaks, then the process by which that tribunal is constituted is a public function, not a private entitlement.
The law itself confirms the tension. Challenges for cause are judicial in substance. They require an identifiable basis for disqualification and a ruling by the court. Peremptory challenges are different. They authorize the removal of otherwise qualified jurors without any showing that those jurors cannot be fair. In the federal civil system, all challenges for cause are determined by the court, but each party still receives three peremptory challenges under § 1870. In federal criminal practice, the court conducts or supervises voir dire, but Rule 24 still allocates peremptory strikes to the government and the accused. New York’s criminal statute is even more direct: once a peremptory challenge is made, the court “must exclude” the person challenged from service. The judge remains physically central to the process while legally obligated, at least in the first instance, to enforce a party’s unexplained act of exclusion. That is not judicial control in any serious sense. It is judicial administration of privately exercised removal power.
The constitutional difficulty is not limited to the defendant’s interest in a fair trial. The Supreme Court has repeatedly described discriminatory jury selection as an injury to the excluded juror and to the community at large. Batson v. Kentucky held that exclusion from jury service on account of race unconstitutionally discriminates against the excluded citizen and undermines public confidence in the fairness of the justice system. Powers v. Ohio recognized that racial discrimination in jury selection casts doubt on the integrity of the judicial process itself. Miller-El v. Dretke later returned to the same point, warning that racially tainted jury selection jeopardizes “the very integrity of the courts.” These are not ornamental statements. They identify the real constitutional interest at stake. Jury selection is not merely about accuracy in one case. It is about whether the state can credibly claim that the tribunal through which it administers justice was formed in a manner consistent with equal citizenship and public trust.
Once the problem is framed that way, the conventional defense of the current regime begins to collapse. It is often said that the judge remains in charge because voir dire occurs in court, under court rules, with court supervision. But form is not the same as control. A court that must honor a litigant’s discretionary strike without an articulated finding of partiality is not fully controlling the composition of the tribunal. It is supervising a process whose decisive feature remains private rejection. The same Supreme Court cases that condemned discrimination in jury selection also exposed how closely the exercise of a peremptory challenge is bound up with state authority. In Georgia v. McCollum, the Court explained that a peremptory challenge involves wielding power over a quintessential governmental body. That is precisely the point. The private actor is not choosing a dinner guest or a business partner. The private actor is participating in the construction of the state’s adjudicative body. If that function is constitutional in its consequences, it cannot be treated as private in its justification.
The mythology of neutral jury selection survives because the courtroom aesthetic is powerful. Robes, oaths, summonses, bench rulings, and formal voir dire create the appearance that the process is wholly legal and wholly judicial. But the mere presence of a judge does not make every mechanism in the room constitutionally sound. A system can be ceremonially public and functionally private at the same time. The peremptory challenge is the clearest example. It is an official act because it determines who may participate in the exercise of judicial power, yet it has historically operated as a domain of discretionary exclusion insulated from ordinary requirements of reason-giving. That contradiction is not cured by tradition. It is made worse by it. The longer the practice has existed, the more normal it appears, and the easier it becomes to mistake endurance for legitimacy.
The persistence of modern litigation over discriminatory striking shows that the issue is not historical residue. It remains active, current, and unresolved. On March 31, 2026, the Supreme Court heard argument in Pitchford v. Cain, a Mississippi capital case involving a Batson challenge to the prosecutor’s strikes of four Black prospective jurors. The fact that the Supreme Court is still hearing argument, four decades after Batson, on whether lower courts properly handled a claim of race-based jury exclusion is not evidence that the doctrine has matured into stability. It is evidence that the underlying design remains unstable. A system that repeatedly returns to the same constitutional wound has not cured it. It has normalized periodic litigation over its symptoms.
What follows from that premise is straightforward. Jury selection should be understood as a judicial function in the fullest sense, not merely a courtroom event. The composition of the tribunal should turn on legally reviewable criteria administered by the court, not on the unarticulated comfort level of partisan actors. The central question is not whether some lawyers use peremptory challenges honorably. Many do. The question is whether public justice should continue to tolerate a mechanism that allows the constitutional body charged with rendering judgment to be partially engineered through discretionary rejection. Once framed honestly, the answer becomes hard to avoid. A jury is too central to the legitimacy of adjudication to remain vulnerable to a process that permits exclusion first and justification later, if justification comes at all.
II. What the Peremptory Challenge Really Is
The peremptory challenge is often described in benign terms, as though it were simply a practical supplement to challenges for cause. That description softens what the device actually does. A challenge for cause excludes a juror who cannot lawfully sit. A peremptory challenge excludes a juror who can. That distinction is everything. The peremptory challenge is not the legal determination that a prospective juror is biased, incompetent, related to a party, or otherwise disqualified. It is the discretionary power to remove an otherwise qualified citizen from participation in the state’s adjudicative process. Federal law makes the distinction explicit. In civil cases, 28 U.S.C. § 1870 gives each party three peremptory challenges, but all challenges for cause are determined by the court. The federal criminal rules do the same by granting each side a prescribed number of peremptories while leaving for-cause questions to judicial control. New York follows the same pattern. In civil practice, each side receives peremptory strikes under CPLR § 4109. In criminal practice, CPL § 270.25 directs the court to exclude a juror once the party exercises a peremptory challenge, even though no reason need be assigned. The device does not identify legal disqualification. It authorizes rejection without it.
That feature is not an accidental byproduct of the doctrine. It is its essence. Swain v. Alabama, the case that long defined the law before Batson, described the “essential nature” of the peremptory challenge as one exercised without a reason stated, without inquiry, and without being subject to the court’s control. Swain further distinguished the peremptory from challenges for cause by explaining that cause challenges rest on a narrowly specified and legally cognizable basis of partiality, while the peremptory allows rejection for a real or imagined bias less easily demonstrated. Those passages remain invaluable because they strip the practice of euphemism. The peremptory challenge is not a precision instrument designed to identify proven unfairness. It is a discretionary veto exercised in the space where proof is absent, or at least unrequired.
The traditional defense of that veto is familiar. Swain presented it in classic form. The challenge, the Court said, serves not only to eliminate extremes of partiality but also to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence and not otherwise. The reasoning is easy to understand. Trial lawyers are expected to make difficult judgments under conditions of uncertainty. Voir dire is imperfect. Some forms of partiality are subtle. A party may sense hostility, sympathy, rigidity, or unspoken allegiance that cannot be cleanly translated into a challenge for cause. The peremptory challenge gives the party a mechanism to act on that perception without forcing an ugly and often futile contest over whether a juror’s self-description of impartiality is credible. In that sense, the defense of peremptories is not irrational. It rests on a practical intuition about human judgment and the limitations of formal proof.
But that defense contains the seeds of its own indictment. If the peremptory challenge exists precisely because the party need not identify a legally reviewable basis for exclusion, then the device necessarily authorizes action on intuition, association, demeanor, comfort, and prediction. Swain was strikingly candid on this point. It explained that peremptories are often exercised on “sudden impressions,” on a juror’s looks and gestures, on habits and associations, and, significantly, on grounds “normally thought irrelevant to legal proceedings or official action,” including race, religion, nationality, occupation, or affiliations. That language should not be treated as an embarrassing relic. It is the most revealing judicial description of what the challenge actually permits. The doctrine’s defenders often speak as though the peremptory challenge is merely a more flexible way to detect bias. Swain admitted something more troubling: the device has always operated through categorical judgment, impressionistic sorting, and the use of characteristics that legal decision-making is otherwise supposed to treat with caution or reject altogether.
That frankness is devastating because it reveals how far the peremptory challenge departs from ordinary ideas of public decision-making. A judge cannot deny a motion, admit evidence, impose a sanction, or instruct a jury on the basis of an unarticulated “sudden impression.” Administrative agencies cannot usually justify official action by reference to bare intuition about a person’s group affiliation. Yet the peremptory challenge has historically carved out precisely that zone of tolerated irrationality inside the selection of the very body that will adjudicate the dispute. The legal system thus presents itself as committed to reason-giving while preserving one of the most consequential acts of exclusion in trial practice as a domain where reasons may be withheld. That is not a minor inconsistency. It is a structural anomaly.
The anomaly is especially hard to defend once one remembers who is being excluded. A peremptory challenge does not remove an unqualified person from the process. It removes a citizen who has already survived the ordinary legal screening for service. The juror is not struck because the law has determined that he or she cannot be fair. The juror is struck because a litigant prefers someone else, or prefers that this particular person not sit. That is why the challenge is best understood not as a supplement to judicial selection, but as a private veto over membership in a public body. Edmonson recognized the constitutional seriousness of that point when it held that the jury is a quintessential governmental body and that the use of peremptories in civil cases occurs through the overt and significant participation of the government. Even when exercised by private litigants, the device has no life outside the judicial system the state creates and administers. The strike is formally private in initiation, but public in effect and constitutional consequence.
The federal and state rules confirm how deeply embedded that private veto remains. Rule 47 in civil cases places the court at the center of examining jurors, yet subsection (b) requires the court to allow the number of peremptories provided by statute. Rule 24 in criminal cases uses the same architecture, giving the court the option to conduct examination while still allocating a fixed number of discretionary strikes to each side. New York’s statutes are even more direct in their language of entitlement. This matters because it shows that the issue is not simply historical culture. It is live procedural design. The rules do not merely tolerate peremptories as a background custom. They affirmatively distribute them. The system chooses, in present tense, to preserve a zone of lawyer-controlled exclusion over qualified jurors.
That preservation has shaped the culture of jury selection in predictable ways. Lawyers are trained to think strategically about backgrounds, attitudes, occupations, neighborhoods, educations, mannerisms, and institutional trust. None of that is surprising. Trial practice rewards pattern recognition. But once the system invites counsel to operate in that register, it should not be surprised when the line between individualized judgment and stereotype becomes unstable. The peremptory challenge does not merely risk abuse by bad actors. It institutionalizes a mode of decision-making in which abstracted traits can be converted into exclusion without the discipline of an articulated legal standard. That is why the problem cannot be solved simply by urging lawyers to be careful or judges to be watchful. The defect is in the mechanism itself. A device built to authorize rejection without proof will inevitably attract explanations after the fact and rationalizations during the act.
Seen clearly, the peremptory challenge is neither mysterious nor benign. It is a procedural remnant of discretionary distrust, preserved in modern rules, defended in the language of practicality, and embedded in the composition of the tribunal that speaks for the state. Its defenders are right about one thing: it does meaningful work. The problem is that the work it does is not purely the detection of bias. It is the unreviewed rejection of qualified citizens from public service based on judgments the law ordinarily insists must be explained. Once that point is faced directly, the next question becomes unavoidable. If the device is so vulnerable to stereotype and so resistant to principled review, what did Batson actually solve?
III. Batson’s Achievement and Batson’s Failure
No serious account of jury discrimination can deny the importance of Batson v. Kentucky. Before Batson, the governing framework of Swain v. Alabama made relief extraordinarily difficult. Swain presumed that, in any particular case, the prosecutor was using the State’s challenges to obtain a fair and impartial jury and refused to subject the prosecutor’s reasons to examination simply because all Black jurors were struck in the case at hand. To overcome that presumption, a defendant effectively had to show a broader pattern—case after case, across time—in which the prosecutor’s office systematically removed Black jurors so that none served. That was not meaningful case-level review. It was a nearly impossible burden, especially for individual defendants with limited access to institutional jury-selection history. Batson broke that structure. It held that a defendant could establish a prima facie case of purposeful discrimination based solely on the prosecutor’s exercise of peremptory challenges in the defendant’s own trial and that the burden would then shift to the State to provide a neutral explanation. That was a genuine doctrinal advance. It moved the law from near-immunity to case-specific scrutiny.
Batson also did something deeper than alter evidentiary burdens. It stated with clarity what was constitutionally wrong with discriminatory striking. The Court held that exclusion from jury service on account of race unconstitutionally discriminates against the excluded juror, harms the defendant, and undermines public confidence in the fairness of the justice system. It rejected the notion that the prosecutor could justify strikes on the assumption that Black jurors as a group would be unable impartially to consider the State’s case. In doing so, Batson stripped away one of the central moral evasions of the old regime: the idea that race-based exclusion in the jury room could be defended as trial strategy rather than recognized as state discrimination. Those holdings were indispensable. They remain indispensable. The legal system could not continue to speak honestly about equal protection while allowing race-based jury exclusion to remain insulated by the formal mystique of the peremptory challenge.
The doctrine did not stop with race discrimination by prosecutors in criminal cases. In Powers v. Ohio, the Court held that a criminal defendant may object even when the excluded jurors are of a different race from the defendant. In Edmonson v. Leesville Concrete Co., the Court extended the rule to private litigants in civil cases, recognizing that peremptory challenges in civil jury selection involve state action because they help constitute a quintessential governmental body. In Georgia v. McCollum, the Court held that criminal defendants, no less than prosecutors, may not exercise peremptory strikes in a racially discriminatory manner. Then in J.E.B. v. Alabama ex rel. T.B., the Court extended the same equal-protection logic to sex discrimination, holding that gender, like race, is an unconstitutional proxy for juror competence and impartiality. Taken together, those cases announced an important constitutional principle: the jury box is not a zone in which equal protection goes dark the moment selection begins. The Constitution follows the strike.
But Batson’s achievement should not obscure Batson’s limitation. The Court condemned discriminatory use of peremptory challenges without abandoning the peremptory challenge itself. That choice matters because the problem was never confined to overt declarations of bias. Batson itself acknowledged that peremptories are a jury-selection practice that permit those inclined to discriminate to do so. The Court also acknowledged the reality of practice: the challenge “may be, and unfortunately at times has been,” used to discriminate against Black jurors. Those statements were more than descriptive. They were admissions that the very design of the device invited misuse. Yet the doctrine’s remedy was not to eliminate the instrument. It was to regulate one class of impermissible motives within it. That made Batson necessary, but it also made it incomplete from the day it was decided.
The structure Batson left behind is the source of its continuing weakness. Once a prima facie inference is raised, the opposing party must provide a neutral explanation, and the trial court must determine whether purposeful discrimination has been shown. In theory, that three-step inquiry creates meaningful review. In practice, it often invites post hoc rationalization. The strike has already been made. The juror is already under suspicion. Counsel is then given an opportunity to explain the act in language scrubbed of explicit bias. Because the peremptory challenge was designed to operate in the realm of intuition, demeanor, comfort, and impression, the legal system then asks judges to separate sincere trial judgment from discriminatory pretext in an area where the original decision was never required to be reasoned in the first place. The inquiry is therefore hardest precisely where the risk of bias is greatest: in judgments built from coded impressions rather than explicit admissions. Batson did not create that problem, but it inherited it and never escaped it.
That is why Justice Marshall’s separate opinion in Batson remains so important. He agreed with the Court’s holding, but warned that the decision would not end race discrimination in jury selection and that only by banning peremptory challenges entirely could such discrimination be ended. Time has treated that warning less as prophecy than as plain observation. The difficulty is not merely that some lawyers lie. It is that the legal system continues to preserve a device whose ordinary operation depends on judgments that are easy to redescribe after the fact. A lawyer who would never say “I struck this juror because of race” may have no difficulty saying that the juror seemed disengaged, defensive, overly sympathetic, skeptical of law enforcement, insufficiently attentive, or not a good fit. Once the doctrine accepts peremptories as legitimate in principle, it invites the language of neutrality to do the work that explicit discrimination can no longer perform openly.
The later cases show both the value of Batson and the difficulty of enforcing it. Miller-El v. Dretke is a powerful example. There the Court relied heavily on comparative juror analysis, explaining that side-by-side comparisons between struck Black panelists and similarly situated white panelists who were allowed to serve could reveal purposeful discrimination. If the stated reason for striking a Black panelist applied just as well to a white juror who remained on the panel, that inconsistency was evidence of pretext. Miller-El was an important corrective because it pushed courts beyond mere acceptance of facially neutral language and toward evidentiary scrutiny of whether the explanation actually fit the record. But the very need for that analysis illustrates Batson’s weakness. Years of litigation were required to expose what should have been obvious at the moment of selection: the neutral explanations did not hold together. The doctrine can work, but often only after the challenged verdict has already been rendered and defended through appellate years.
The persistence of the problem into the present confirms the point. On March 31, 2026, the Supreme Court heard argument in Pitchford v. Cain, another case centered on whether race-based striking was properly handled under Batson. According to the petitioner’s briefing and summaries of the case, the prosecution struck four Black prospective jurors, and the dispute now includes whether the trial court foreclosed meaningful rebuttal and failed to conduct Batson’s third step in a meaningful way. One need not predict the ultimate outcome to recognize the significance. Four decades after Batson, the Supreme Court is still being asked whether lower courts properly performed the doctrine’s most basic task: determining whether the assertedly neutral reasons were pretext for discrimination. That is not merely a sign that the law remains vigilant. It is also a sign that the law remains trapped in a reactive posture, forever revisiting whether courts adequately policed a mechanism that still invites concealment.
Batson, then, should be understood in two ways at once. It was a constitutional correction of real importance, and it remains indispensable as a baseline prohibition. But it was not a structural cure. It did not reclaim jury selection as a fully judicial function. It did not eliminate discretionary strikes against qualified jurors. It did not abolish the gap between the public language of neutral adjudication and the private reality of intuition-based exclusion. It constrained abuse without displacing the mechanism that generates abuse. That is why modern reform cannot stop at praising Batson or demanding stricter enforcement of it. The deeper question is the one Batson left unresolved: whether a constitutional court should continue to tolerate a procedure whose normal operation depends on reasonless rejection, stereotype-adjacent judgment, and explanations supplied only after objection. Until that question is answered directly, Batson will remain what it has been for forty years—an essential doctrine of damage control, but not the end of the problem
IV. The Laundering Device: How “Neutral Reasons” Preserve Exclusion
The post-Batson problem is not hard to identify. Once the law forbade openly race-based striking, the peremptory challenge did not become neutral. It became more verbal. The system shifted from explicit exclusion to narrated exclusion. A lawyer who can no longer say the disqualifying part out loud is invited to say something else instead. That “something else” may be demeanor, neighborhood, attitude, skepticism toward police, lack of eye contact, inattentiveness, tone, life experience, or an asserted concern that appears case-specific only because the record has been arranged to make it appear so. The vice is not merely dishonesty in the crude sense. It is the transformation of a discriminatory act into an administratively acceptable explanation. The peremptory challenge, once preserved, naturally seeks a vocabulary that will survive objection. That is why the modern problem is not best described as simple bad faith. It is a laundering problem. The strike goes in as suspicion and comes out as neutral language.
The Supreme Court has now said as much in substance, even when it has not used that term. In Flowers v. Mississippi, the Court explained that dramatically disparate questioning of Black and white jurors can be evidence that the prosecutor was trying to “paper the record” and disguise discriminatory intent. That observation is one of the most important lines in the Court’s modern jury-selection jurisprudence because it identifies the mechanism of concealment. The problem is not only the final strike. The problem begins earlier, when questioning becomes asymmetrical, investigation becomes selective, and the record is built unevenly so that a strike can later be defended as the product of individualized concern. In Flowers, the State asked the five struck Black jurors 145 questions in the sixth trial, while asking the eleven seated white jurors only 12 questions in total. The Court did not treat that disparity as a trivial feature of voir dire style. It treated it as evidence that the assertedly neutral reasons were being manufactured through differential scrutiny.
That is a critical doctrinal insight because it exposes a recurring weakness in the orthodox Batson framework. The ordinary model imagines a prosecutor or lawyer making a strike, offering a neutral reason, and a trial judge then deciding whether the reason is genuine or pretextual. But that sequence understates how pretext is often made. Pretext does not always emerge after the strike. It is often built before the strike through selective questioning, selective note-taking, selective investigation, and selective memory. If one juror is pressed harder, interrupted more, examined at greater length, and asked to elaborate on every potentially controversial answer while another is not, the resulting record will predictably look different even where the underlying juror profiles are not meaningfully different. The record then becomes the instrument through which the strike is normalized. Flowers made that plain by linking disparate questioning, historical strike patterns, and side-by-side comparison of struck Black jurors with white jurors who were not struck.
Foster v. Chatman revealed the problem in even starker form because the prosecution’s own file was eventually disclosed. The official story at trial was that the State had race-neutral reasons for striking all four qualified Black prospective jurors. The documentary record later showed something much less sanitized. The prosecution’s materials highlighted Black jurors’ names in green with a legend that the highlighting “represents Blacks,” labeled Black jurors as “B#1,” “B#2,” and “B#3,” marked all five qualified Black jurors with “N” notations on the strike list, prepared a “definite NO’s” list whose first five names were the five qualified Black jurors, and included a handwritten notation reading, “No. No Black Church.” The Supreme Court did not treat those materials as background color. It held that the file showed a concerted effort to keep Black jurors off the jury and that the State’s newly offered explanations “reek[ed] of afterthought.” That phrase matters because it captures the central defect of the modern regime: once the system demands a neutral explanation but preserves the discriminatory instrument, afterthought becomes the doctrine’s natural companion.
What Foster and Flowers expose at the constitutional level, reform jurisdictions have begun to codify at the rule level. Washington’s GR 37 did not merely restate Batson. It was drafted around the recognition that improper exclusion often survives through historically familiar “neutral” reasons. The rule requires the court to deny a strike if an objective observer could view race or ethnicity as a factor; the court need not find purposeful discrimination; and the rule defines the objective observer as one who is aware that implicit, institutional, and unconscious biases have contributed to unfair exclusion in Washington. The rule then goes further and identifies reasons that are presumptively invalid because of their historic association with discriminatory jury selection, including prior contact with law enforcement, distrust of law enforcement, belief in racial profiling, relationships with people who have been stopped or arrested, residence in a high-crime neighborhood, receipt of state benefits, and not being a native English speaker. It also treats classic demeanor tropes—sleeping, inattentiveness, staring, body language, confused answers—as suspect unless corroborated. That is not doctrinal ornament. It is an institutional admission that the vocabulary of neutrality has long carried the work of exclusion.
California’s approach makes the same point with even more procedural precision. Section 231.7 requires the striking party, upon objection, to state the reasons actually relied upon, forbids the court from speculating about other possible justifications, and directs the court to sustain the objection if there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, national origin, or other protected-group status as a factor. California expressly states that purposeful discrimination need not be found, defines the objectively reasonable person as one aware that unconscious, implicit, and institutional bias have produced unfair exclusion in California, and then identifies a long list of presumptively invalid reasons unless the striking party can overcome the presumption by clear and convincing evidence. Those reasons include distrust of law enforcement, belief that policing is discriminatory, relationships with arrested or convicted persons, neighborhood, receipt of state benefits, non-native English speaking, ability to speak another language, dress or appearance, employment in certain fields, underemployment, friendliness with another juror of the same group, and any rationale similarly applicable to a nonchallenged juror outside the protected group. California also treats inattentiveness, lack of rapport, demeanor, and allegedly confused answers as historically associated with discrimination and presumptively invalid absent judicial confirmation. That is an unusually candid statutory acknowledgment that “neutral” explanations often function as coded proxies.
The significance of those reforms is not merely that they are more protective. It is that they identify the correct level of the problem. The old Batson model assumed that if courts became more alert to pretext, the peremptory challenge could remain substantially intact. Washington and California proceed from a different premise. They treat the history of jury exclusion as evidence that the ordinary categories of justification themselves have been contaminated by repeated discriminatory use. In other words, the defect is not only that lawyers sometimes lie. The defect is that certain reasons have become institutionally unreliable because they recur too easily, map too neatly onto racialized sorting, and are too difficult to disprove once stated. A person’s discomfort with police, residence, language, demeanor, employment, or perceived attitude may in some contexts be real and relevant. But a system that has repeatedly used those categories to achieve impermissible exclusion cannot continue to treat them as facially clean. That is why these reform models do not merely ask whether the lawyer meant well. They ask whether the reason itself belongs to a history of discriminatory filtration.
Washington’s case law since GR 37 underscores the point. In State v. Harrison, the Washington Court of Appeals reversed after concluding that the strike of juror 28 could not stand where an objective observer could view race as a factor and the State’s rationale implicated reasons the rule treats as presumptively invalid, including views touching racial profiling and distrust of law enforcement. The court also cautioned that discussions following a GR 37 objection should be on the record, precisely because the integrity of the inquiry depends on reviewable transparency. In 2025, the Washington Supreme Court in State v. Bell reinforced the framework, holding that de novo review applies because the rule’s objective-observer standard is meant to prevent a return to the pre-GR 37 regime in which reversals were rare or nonexistent. The court stressed that the rule is deliberately sensitive, is aimed at implicit as well as purposeful bias, and requires special prudence because discriminatory jury selection injures defendants, prospective jurors, and public confidence in the justice system. Those decisions matter not simply because they reversed convictions, but because they show a court taking seriously the proposition that neutral-sounding explanations must be measured against history, pattern, optics, and effect rather than accepted at face value.
That is the article’s point at this stage. The contemporary defense of peremptories often assumes that the relevant question is whether the attorney can state a reason that does not, on its face, name race or another protected trait. That is far too thin a test for a constitutional institution. The issue is not whether the explanation can be verbalized in neutral language. The issue is whether the law will continue to permit exclusion through categories that have repeatedly served as the hiding place of discrimination. Once one sees the problem in those terms, the reform imperative changes. The task is not simply to catch more liars. It is to strip discriminatory exclusion of the linguistic shelter that has allowed it to persist under the sign of neutral trial management. So long as the system continues to prize the existence of a reason more than the reliability of the reason-giving process, the laundering device will remain intact.
V. Other Jurisdictions Have Already Admitted the Old Model Is Defective
The most telling development in this field is not doctrinal rhetoric from appellate opinions. It is the fact that several jurisdictions have already concluded, in different ways, that the traditional peremptory-challenge framework is inadequate. They have not all chosen the same remedy. Some have tightened the standard. Some have shifted the lens. One has abolished peremptories entirely. But all of these reforms begin from the same premise: the old model left too much room for exclusion to survive under the language of neutrality. That shared premise is what matters most. It means the critique offered here is not speculative. The legal system has already begun to concede, in rule text and institutional design, that Batson was not enough.
Washington moved first in a particularly significant way because it changed the governing question rather than merely refining Batson’s old one. GR 37 states that its purpose is to eliminate the unfair exclusion of potential jurors based on race or ethnicity. The rule applies in all jury trials. Upon objection, the striking party must articulate its reasons, but the court then asks not whether discriminatory purpose has been proven in the traditional sense. It asks whether an objective observer could view race or ethnicity as a factor in the strike. The court need not find purposeful discrimination. The objective observer is expressly defined as someone aware that implicit, institutional, and unconscious biases have contributed to unfair exclusion in Washington. That is a major jurisprudential shift. It rejects the fiction that jury discrimination can be policed adequately by looking only for conscious animus, and it places the court under an affirmative obligation to consider the history of bias when evaluating present conduct.
Washington did not stop at redefining the inquiry. It changed what counts as suspicious. The rule directs courts to consider, among other things, whether the striking party asked more or different questions of the challenged juror, whether other jurors gave similar answers but were not struck, whether the reason is disproportionately associated with race or ethnicity, and whether the party has used strikes disproportionately against a particular group in the present or past cases. The rule then identifies reasons presumptively invalid because of their historical association with discriminatory jury selection, including prior law-enforcement contact, distrust of law enforcement, belief in racial profiling, living in a high-crime neighborhood, receiving state benefits, and not being a native English speaker. It also requires corroboration for classic conduct-based explanations such as inattentiveness, lack of eye contact, demeanor, or confused answers. The reform is therefore both substantive and procedural. It does not merely caution against bias. It reorganizes the judicial evaluation of strikes around historically informed skepticism.
The Washington courts have enforced that rule in ways that illuminate its seriousness. In Harrison, the Court of Appeals reversed and ordered a new trial after holding that an objective observer could view race as a factor and that the challenged juror’s responses implicated presumptively invalid reasons under GR 37. In Bell, the Washington Supreme Court confirmed that review of GR 37 questions is de novo, explained that the rule was designed to be overinclusive in order to be effective, and emphasized that the analysis is concerned with discriminatory effect rather than attorney intent. The court also held that reversal and remand are the remedy when the record, viewed under GR 37, shows that an objective observer could view race as a factor in the strike. These decisions show a judiciary that no longer treats jury-selection bias as a narrow problem of motive detection. It treats it as a systemic risk that justifies broader, more exacting oversight.
California took a parallel but distinct route. Section 231.7 is more expansive in protected categories and more detailed in procedural architecture. It bars peremptory challenges based on race, ethnicity, gender, gender identity, sexual orientation, national origin, religious affiliation, or perceived membership in those groups. On objection, the striking party must state the reasons actually relied upon; the court may not speculate about justifications not given; and the objection must be sustained if there is a substantial likelihood that an objectively reasonable person would view protected-group status as a factor. California defines that observer as one aware that unconscious bias, including implicit and institutional bias, has produced unfair exclusion. It defines “substantial likelihood” as more than a mere possibility but less than more likely than not. That is not accidental drafting. It lowers the practical threshold for judicial intervention because the Legislature understood that the old demand for proof of discriminatory purpose placed too much weight on a mental-state inquiry poorly suited to modern bias.
California also confronted the laundering problem with unusual honesty. Section 231.7 lists specific rationales that are presumed invalid unless the proponent can show by clear and convincing evidence that the reason is unrelated to conscious or unconscious bias and genuinely bears on the juror’s ability to be fair. That list includes distrust of law enforcement, belief that criminal laws are enforced discriminatorily, relationships with arrested or convicted persons, neighborhood, receipt of state benefits, non-native English speaking, ability to speak another language, dress or appearance, certain employment patterns, underemployment, and friendliness with another juror of the same group. The statute separately treats inattentiveness, lack of rapport, demeanor, body language, and allegedly unintelligent or confused answers as historically associated with improper discrimination and presumptively invalid unless the trial court can confirm the conduct and the proponent can explain why it matters to the specific case. The Legislature also made the remedy meaningful. Denials are reviewed de novo; appellate courts may consider only the reasons actually given; and erroneous denials are deemed prejudicial, requiring reversal and remand. The message is plain: once the history of exclusion is acknowledged, judicial tolerance for soft, elastic justifications must narrow.
Arizona made the boldest institutional move. Rather than attempting to salvage the traditional device through stricter standards, the Arizona Supreme Court eliminated peremptory challenges in both criminal and civil trials, effective January 1, 2022. The Arizona court’s public explanation stated that the rule change eliminated the practice of removing jurors without cause to believe they could not sit fairly and impartially. The official rules materials likewise state that the amendments apply to jury selection after January 1, 2022, and the 2021 comments explain that peremptory challenges were eliminated in the entire Arizona state court system to reduce, to the greatest degree possible, the role of improper bias in selecting jurors and to ensure fair and impartial verdicts. Arizona’s choice is important not because every state must copy it immediately, but because it demonstrates that abolition is not a fantasy. A state supreme court has already decided that the constitutional and institutional costs of preserving peremptories outweighed their traditional benefits.
Arizona’s abolition also sharpens the debate by exposing what the defense of peremptories really asks courts to protect. Once Arizona removed the device, jury selection did not become impossible. The system did not collapse into unadministrable disorder. Instead, the reform pushed the process back toward challenges for cause, court supervision, and a more explicit focus on articulable bias. That does not mean every implementation concern disappeared or that abolition answers every practical objection. It does mean that the oft-repeated claim that peremptories are indispensable to functioning trials is overstated. Arizona has already tested the proposition at statewide scale and chosen to live without them. Whatever criticisms remain, the existence of that reform changes the burden of argument. Defenders of the old system can no longer rely on inevitability.
The differences among Washington, California, and Arizona should not obscure their common admission. Washington says the old intent-centered test was too narrow and therefore adopts an objective-observer standard informed by implicit, institutional, and unconscious bias. California says the old approach trusted neutral reasons too readily and therefore codifies both a lower threshold for sustaining objections and a set of historically tainted justifications that trigger presumptive invalidity. Arizona says the problem is sufficiently deep that the device itself should be removed. Those are different policy judgments. But all three reject the complacent view that a reasonless strike can safely remain part of modern adjudication so long as Batson objections are technically available. That is the real significance of these reforms. They are not isolated experiments. They are converging acknowledgments that the traditional model is structurally defective.
That convergence matters for the argument of this article because it neutralizes the most familiar institutional defense: that the current system may be imperfect, but it is the only workable compromise between fairness and trial practicality. The country’s reform record now says otherwise. One jurisdiction has abolished peremptories. Another has re-centered judicial review around objective effect and historical awareness of bias. Another has imposed a statutory structure that sharply limits the use of historically contaminated reasons and mandates meaningful appellate review. The old model is not being criticized solely from the outside. It is being revised from within the judiciary and by legislatures that have concluded the same thing in different dialects of reform: if jury selection is a constitutional process, then its governing rules must be designed to confront the actual mechanics of exclusion, not merely its most overt forms.
VI. Why New York Is Still Vulnerable
New York remains vulnerable because its governing structure still preserves the core logic of the traditional peremptory challenge. In criminal cases, CPL § 270.25 states that a peremptory challenge is an objection to a prospective juror for which no reason need be assigned, and that upon such a challenge the court must exclude the juror from service. That is not historical residue buried in a forgotten provision. It is present-tense statutory design. In civil cases, New York likewise preserves party-controlled discretionary striking. Article 41 of the CPLR continues to provide for peremptory challenges, and the Uniform Rules for Jury Selection and Deliberation even specify that where the court uses the section 4109 procedure, the number of peremptory challenges increases by one for every two jurors selected beyond the first six. New York, in other words, has not structurally retreated from the idea that qualified jurors may be removed by litigants without judicial findings of disqualification. It still distributes that power as an ordinary feature of trial practice.
That point should not be blurred by the fact that New York, like every jurisdiction subject to Batson and its progeny, forbids discriminatory use of peremptories. The issue is not whether New York formally permits race- or gender-based exclusion. It does not. The issue is whether New York has changed the mechanism that makes disguised exclusion possible. It has not. The operative criminal statute still defines the strike as reasonless. The civil framework still allocates discretionary strikes. And the rules still speak in the language of entitlement rather than judicial necessity. That means New York remains committed to the same architecture that Washington, California, and Arizona have each, in different ways, concluded is inadequate. New York does not need to announce indifference to bias in order to remain structurally exposed to it. Preservation of the old device is enough.
The New York case law visible from the current materials reinforces the point rather than solving it. People v. Luciano shows that New York courts can and do respond when discriminatory striking is identified. There, after defense counsel used peremptory challenges to strike every remaining woman on the panel, the trial court found two of the proffered explanations pretextual, seated the jurors, and held that the discriminatory use of those strikes forfeited the right to use them. That remedy is important. It shows that New York does not treat discriminatory striking as harmless. But it also illustrates the limited posture in which the problem is still addressed. The court acts after the discriminatory use of the strike has already occurred and after the challenged party has had the opportunity to produce a nominally neutral explanation. The system remains reactive. It polices abuse at the margins while preserving the underlying power to exclude without cause in the ordinary case.
That reactive structure matters in practice because modern jury-selection bias rarely presents itself in overt form. The contemporary problem is not usually an attorney saying the forbidden part aloud. It is the use of elastic rationales that can be fitted to the moment and defended under pressure. New York’s current framework does not contain a Washington-style objective-observer rule. It does not identify presumptively invalid reasons the way Washington does. It does not define an objectively reasonable observer aware of implicit and institutional bias the way California does. It does not require clear-and-convincing proof to overcome historically suspect reasons. It does not impose California’s ban on appellate speculation about justifications never actually given. And it certainly has not followed Arizona’s decision to remove the device entirely. That absence is not merely comparative commentary. It is the source of New York’s vulnerability. When a jurisdiction preserves the full discretionary instrument but adopts none of the newer structural constraints, it preserves the old pathways through which exclusion can be dressed as neutral judgment.
New York’s exposure is especially serious because of the kinds of rationales reform jurisdictions have already learned to distrust. Washington treats as presumptively invalid reasons such as prior contact with law enforcement, distrust of law enforcement, relationships with arrested persons, residence in a high-crime neighborhood, receipt of state benefits, and non-native English speaking. California reaches similar reasons and goes further by including ability to speak another language, neighborhood, dress or personal appearance, and a range of demeanor-based explanations unless they are confirmed and specifically tied to the case. New York’s current statutes and rules contain no analogous caution. Yet these are precisely the categories through which exclusion can occur while still sounding trial-specific rather than group-based. A system need not authorize explicit discrimination to be vulnerable to discrimination by proxy. It need only preserve a mechanism that allows proxy reasons to function unchecked unless opposing counsel happens to object and the court happens to perceive the pretext in real time.
That is why New York cannot safely respond that Batson is enough. Batson was never designed to manage the full modern vocabulary of exclusion, and later cases such as Flowers and Foster show how easily neutral-sounding explanations can be manufactured, layered, and defended. Flowers warned that disparate questioning can be used to “paper the record” and disguise discriminatory intent. Foster showed that the supposedly neutral reasons for striking Black jurors could coexist with files that highlighted Black jurors in green, assigned them “B#” designations, and placed them on “definite NO’s” lists. New York’s present structure still invites the same basic sequence: a discretionary strike first, a neutral explanation second, and judicial review only if an objection is made and pursued. That is not a stable design for a constitutional tribunal. It is a design that assumes the judge can reliably detect camouflage in the compressed theater of voir dire. The modern case law does not justify that confidence. It cautions against it.
New York is also vulnerable because its own rules still treat peremptories as part of ordinary courtroom management rather than as a concentrated constitutional hazard. The criminal statute tells the court to exclude the juror upon the challenge. The civil rules preserve the strike allocation and, in certain selection procedures, increase it. That procedural normalization matters. When a practice is framed as routine, it is less likely to be scrutinized at the level of design. But jury composition is not routine. As the Supreme Court has repeatedly emphasized, discriminatory jury selection injures excluded jurors, the litigants, and public confidence in the courts. Washington’s Bell decision said the same thing in explaining why GR 37 must be taken seriously and why reversal remains the remedy when its protections are violated. If other jurisdictions now understand that the stakes require overinclusive safeguards, on-the-record reasoning, de novo review, and historically informed skepticism, New York’s continued reliance on the older peremptory architecture is not neutrality. It is institutional lag.
None of this means New York must copy another jurisdiction line for line. It does not need to adopt Washington’s exact language, California’s exact statute, or Arizona’s exact abolition order. But New York can no longer plausibly behave as though the traditional device remains self-justifying. The reform map elsewhere has already disproved that assumption. If New York wishes to preserve peremptories, it would need to explain why it has not adopted at least some of the structural protections other jurisdictions deemed necessary: an objective-observer standard, explicit recognition of implicit and institutional bias, presumptively invalid reasons, corroboration rules for demeanor-based justifications, meaningful on-the-record findings, and de novo appellate review centered on actual reasons rather than speculative ones. At present, the statutes and rules cited above show no such redesign. The result is that New York remains dependent on a framework that still permits exclusion without cause and relies on after-the-fact objection practice to correct what should have been structurally constrained at the outset.
That is the real source of New York’s vulnerability. The state is not outside the constitutional conversation. It is inside it, but on older terms. Its law still reflects confidence in reasonless discretionary strikes at the precise point where other jurisdictions have become skeptical of that confidence. Its rules still allow the parties to shape the tribunal through private vetoes while newer models are moving the process back toward court-centered control. And because the jury is the body through which the state renders judgment, that design choice cannot be dismissed as mere procedure. It is a choice about who gets to shape the legitimacy of adjudication itself. So long as New York preserves the peremptory challenge in its traditional form, without the structural safeguards other jurisdictions have adopted or without abolishing the device altogether, it remains exposed to the same old problem in updated language: exclusion that arrives in court dressed as strategy, but leaves as a distortion of equal justice.
VII. The Judicial-Function Argument
The central error in the conventional debate over peremptory challenges is that it treats jury selection as though it were principally a contest-management problem. Under that view, the law’s job is to balance attorney flexibility against the risk of abuse. That framing is too small. Jury selection is not simply a pretrial skirmish in which each side is given tools to manage uncertainty. It is the constitutive act by which the state assembles the body that will speak through the verdict. The Supreme Court has already supplied the language that should control this discussion. In Edmonson v. Leesville Concrete Co., the Court described the jury as a “quintessential governmental body” and explained that the jury exercises the power of the court and of the government that confers the court’s jurisdiction. Once that proposition is taken seriously, the rest follows with unusual clarity. The composition of the jury is not a private entitlement of litigants. It is a public function that should be governed, in the final instance, by the court.
That is the premise that the present rules still resist. In federal civil cases, Rule 47 permits the court to examine prospective jurors or to allow counsel to do so, but Rule 47(b) still requires the court to allow the number of peremptory challenges provided by 28 U.S.C. § 1870. Section 1870 gives each party three peremptory challenges while reserving challenges for cause to the court. In federal criminal cases, Rule 24 follows the same architecture: the court may conduct voir dire or permit attorney questioning, yet the rule still allocates a set number of peremptory challenges by offense category. New York’s statutes are, if anything, more candid. CPL § 270.25 states that a peremptory challenge is an objection for which no reason need be assigned and directs the court to exclude the challenged juror. CPLR § 4109 likewise allocates peremptory challenges to the parties in civil cases. The formal structure, in both systems, is therefore the same: the court supervises the room, but the parties retain a zone of discretionary removal power over qualified citizens. That arrangement is best understood not as judicial control, but as judicially administered privatization of jury composition.
Once the jury is understood as a governmental body, the conceptual weakness of that arrangement becomes difficult to ignore. No one would say that litigants should possess a comparable right to remove judges without cause so long as they could offer a neutral explanation if challenged. No one would say that parties should be allowed to reconstitute an administrative hearing panel through intuitive vetoes because they have “a feel” for who might be unfavorable. Yet jury selection has long been discussed in precisely those terms, as though the need for tactical comfort justified a pocket of reasonless exclusion within the creation of the tribunal itself. The court’s duty, however, is not to maximize litigant comfort. It is to produce a lawful adjudicative body. A legal system committed to public reason, reviewability, and equal citizenship cannot plausibly insist on articulated judicial grounds for nearly every consequential ruling while preserving one of the most consequential acts in trial formation as a domain of discretionary party preference.
That is why the judicial-function argument is not simply a proposal for tighter Batson enforcement. It is a reallocation argument. The question is not only whether parties should be prohibited from excluding jurors for impermissible reasons. They already are. The question is who should possess the decisive authority to determine whether a qualified citizen may serve on the tribunal in the first place. On that question, the answer should be the court. Litigants may provide information, test attitudes, request follow-up, and argue that a juror should be excused. But the final act of exclusion should not belong to the private actor as an entitlement. It should belong to the judge as a public official acting on articulated standards and a reviewable record. The difference is not semantic. It is the difference between a system in which exclusion is presumptively private and one in which exclusion is presumptively judicial.
The equal-protection line of cases reinforces rather than weakens that point. Batson held that race-based peremptory strikes violate equal protection. Powers held that a criminal defendant may object even when the excluded jurors are not of the defendant’s own race. Edmonson extended the prohibition to private civil litigants because peremptory striking in civil jury selection still involves state action. Georgia v. McCollum held that criminal defendants, too, may not exercise peremptories in a racially discriminatory manner. J.E.B. v. Alabama extended the same logic to sex-based strikes. Taken together, those cases do not merely regulate lawyer behavior. They demonstrate that the Court already treats jury selection as a site where constitutional norms bind private litigants precisely because the process helps constitute a governmental body. The doctrine has therefore already conceded the public character of the function. What it has not yet fully conceded is the institutional consequence of that insight: if the function is public enough to constitutionalize, it is public enough to judicialize.
The most familiar objection is that lawyers are uniquely positioned to detect subtle forms of bias that cannot readily be captured in a challenge for cause. There is truth in the descriptive part of that claim. Trial lawyers often do notice patterns, tensions, and cues that matter. But the normative conclusion does not follow. Expertise in observing jurors does not justify private ownership of the exclusion decision. Lawyers can assist the court without possessing an unreviewable veto. The judicial-function argument does not deny the value of advocacy during voir dire. It denies that advocacy should be the source of final authority over who may be removed from a qualified venire. A party may think a juror is risky. The court must decide whether that risk rises to a legally acceptable ground for exclusion. That is not a burden on adjudication. It is adjudication.
Moreover, the judicial-function argument fits the trajectory of modern reform far better than the older attorney-centered model. Washington’s GR 37 explicitly directs the court to deny a strike if an objective observer could view race or ethnicity as a factor, without requiring a finding of purposeful discrimination, and requires the court to explain its ruling on the record. California’s section 231.7 likewise directs the court to sustain an objection when there is a substantial likelihood that an objectively reasonable person would view protected-group status as a factor and bars the court from inventing justifications not actually offered. Arizona went further and eliminated peremptory challenges altogether, explaining through its rules materials that the amendments were designed to accommodate the abolition of peremptory strikes in jury selection after January 1, 2022. Those reforms differ in aggressiveness, but they all move in the same direction: away from unilateral lawyer-controlled exclusion and toward a model in which the court owns the legitimacy of the jury box.
New York’s vulnerability, by contrast, is that it still speaks the language of party entitlement rather than judicial responsibility. Its criminal statute expressly defines the challenge as reasonless and mandatory in effect once exercised. Its civil statute still allots discretionary strikes. Even where New York courts intervene, as in People v. Luciano, the system remains reactive: the discriminatory strike is made, a Batson objection follows, a neutral explanation is solicited, and the court then decides whether to undo or penalize what should never have existed as a unilateral entitlement in the first place. That framework understates the institutional role of the court. A judge should not be reduced to policing abuse after the tribunal has been privately manipulated. The judge should be the official who decides whether manipulation is permissible at all.
The deeper point is one of constitutional accountability. Courts often describe themselves as guardians of equal justice, but they cannot fully discharge that role while disclaiming ownership of the process that determines who will sit in judgment. It is not enough to say that the court is present, that the court supervises questioning, or that the court rules on objections. Presence is not authorship. Supervision is not full responsibility. The tribunal is either composed through public standards or it is not. If the state continues to allow litigants to exclude qualified jurors through unarticulated preference, then the state is sharing authorship of the tribunal’s composition with private actors in a manner that is both constitutionally awkward and institutionally unstable. That instability is precisely what decades of Batson litigation have revealed. The law has spent forty years correcting manifestations of bias while leaving too much of the architecture of exclusion intact. The judicial-function argument is the necessary next step because it asks the court to assume direct responsibility for the composition of the body through which the court itself speaks.
VIII. What a Court-Controlled Mechanism Would Look Like
A court-controlled system for jury selection does not require a leap into procedural fantasy. The raw materials already exist in present law. Federal Rule of Civil Procedure 47 and Federal Rule of Criminal Procedure 24 already place the court at the center of examining prospective jurors, whether by direct judicial questioning or by court-managed attorney participation. New York’s civil jury rules already require random seating of prospective jurors and, where more than six jurors remain at the close of evidence, random drawing of the six who will deliberate. The institutional infrastructure for court-managed selection is therefore not hypothetical. What remains is to remove or sharply reduce the portion of the process in which the parties can still convert strategic preference into decisive exclusion. The question is not whether courts are capable of controlling jury formation. The existing rules already assume that they are. The question is whether courts will continue to outsource the decisive act of exclusion at the last moment.
The first component of a court-controlled mechanism is straightforward: voir dire should be court-led in substance, not merely in setting. That does not mean counsel must be silenced. It means counsel should participate through structured requests for follow-up, targeted submissions of proposed questions, and argument on the adequacy of the record, while the court remains the principal examiner and the principal arbiter of relevance. Federal Rules 47 and 24 already contemplate direct judicial examination. New York’s rules likewise regulate how jurors are seated and how the process unfolds. A more court-centered design would simply move the system closer to what the rules already suggest at the front end and away from what peremptories still preserve at the back end. The goal is to convert voir dire from a partially privatized exercise in tactical sorting into a public inquiry focused on whether a juror can fairly apply the law.
The second component is that exclusion should presumptively proceed through articulated cause rather than discretionary strike. This does not require an unrealistically narrow conception of cause. Courts can recognize that impartiality problems are not limited to admitted prejudice or explicit relationships. The law can define cause to include demonstrated inability to follow the court’s instructions, material hostility to core legal duties of jurors, categorical unwillingness to apply governing burdens or defenses, concrete credibility impairments tied to the subject matter of the case, or specific attitudes shown through voir dire that substantially threaten impartial adjudication. What matters is not whether the definition of cause becomes modestly broader or more precise. What matters is that the exclusion decision be justified in terms the court can own on the record. If a juror is to be removed, the court should be able to say why in public language. If the court cannot do that, the case for exclusion is weak precisely because the exclusion rests on the sort of intuition the law should distrust at this stage.
The third component is that if any discretionary exclusion remains, it should no longer be unilateral. The present system allows the party to strike and then asks whether the other side can demonstrate constitutional infirmity. A court-controlled mechanism would reverse the sequence. If a party seeks to remove a qualified juror for reasons not amounting to classic cause, the party should be required to move for judicial approval, state the actual reasons contemporaneously, and accept a ruling from the court under a standard designed to account for both explicit and implicit bias. Washington and California have already supplied the basic materials for such a framework. Washington’s GR 37 asks whether an objective observer could view race or ethnicity as a factor and identifies categories of reasons historically associated with discrimination. California’s section 231.7 requires the actual reasons to be stated, bars judicial speculation about unstated reasons, and treats numerous historically tainted justifications as presumptively invalid absent a heightened showing. A court-controlled model could adopt those insights without preserving the old entitlement to strike first and explain later.
The fourth component is contemporaneous comparative analysis. One of the recurring lessons of Miller-El, Flowers, and Foster is that discriminatory exclusion often becomes visible only when the challenged juror is compared with similarly situated jurors who were allowed to serve. That comparison should not be left primarily to appellate reconstruction years later. The trial court should be required, when exclusion is disputed, to compare the stated reason against other jurors who gave materially similar answers or displayed materially similar traits. If the asserted concern applies equally to a juror outside the protected group who was not challenged, the inconsistency should weigh heavily against exclusion. California’s statute expressly treats such asymmetry as presumptively invalid, and the Supreme Court’s modern Batson cases have repeatedly relied on side-by-side comparison to expose pretext. A court that is serious about owning the legitimacy of the jury box should conduct that analysis in real time, not merely defer it to appellate autopsy.
The fifth component is a hard rule against the elastic language that has historically functioned as camouflage. Washington’s rule and California’s statute are especially valuable here because they do not pretend that every neutral-sounding reason is equally trustworthy. They identify the categories that history has contaminated: distrust of law enforcement, belief in racial profiling, neighborhood, receipt of public benefits, non-native English speaking, dress, demeanor, lack of rapport, body language, and similarly broad or impressionistic claims. A court-controlled mechanism should not treat those categories as automatically dispositive in favor of service, but it should treat them as presumptively unreliable unless the court itself confirms the observation and the proponent explains with specificity why the characteristic bears on impartiality in the actual case. The important point is to shift the burden away from the excluded juror’s silence and toward the proponent’s obligation to justify exclusion under a historically informed standard.
The sixth component is data and transparency. A court-controlled mechanism should produce a record that is reviewable not only in the individual case but systemically over time. That does not require a surveillance regime. It requires that courts preserve the stated bases for disputed exclusions, whether objections were sustained or denied, and the demographic and procedural context necessary to evaluate patterns. Arizona’s post-abolition rules materials recognized that abolishing peremptories required attention to for-cause practice and jury procedures. Washington’s and California’s reforms likewise show that systemic correction requires more than private confidence in judge-by-judge intuition. A judiciary that claims authority over jury composition should be willing to measure how that authority is exercised. Unmeasured discretion is precisely what made the older system so resistant to honest evaluation.
A fully court-controlled model would therefore look less like a dramatic innovation than a completion of principles already embedded in modern procedure. Courts already conduct or supervise voir dire. Courts already decide challenges for cause. Courts already randomize seating in various forms. Courts already review equal-protection objections to discriminatory strikes. The genuine reform is to stop pretending that the remaining island of unilateral discretionary exclusion is either necessary or conceptually coherent. The mechanism of selection should be this: court-managed questioning, party participation by request and argument, cause-based exclusion on articulated grounds, any residual discretionary exclusion only by judicial approval on a recorded showing, objective-observer review informed by the history of discrimination, comparative-juror analysis at the time of the ruling, and meaningful appellate review confined to the actual reasons stated. At that point, jury selection would become what the legal system has long claimed it already is—a public, judicially owned process for assembling a lawful tribunal.
Arizona’s abolition of peremptory challenges is important in this respect because it proves that the sharpest version of reform is administrable. One need not adopt Arizona’s full approach to see the implication. The existence of that reform means courts can no longer defend the old model on the ground that there is no workable alternative. There is one. Washington and California demonstrate that even short of abolition, the judicial role can be dramatically expanded and the attorney’s unilateral power sharply constrained. New York and the federal system therefore face a choice, not a fate. They can continue to preserve a procedure that treats qualified juror exclusion as a zone of party entitlement, or they can redesign jury formation around the principle that exclusion from a governmental body should occur only through public standards the court is willing to own.
IX. Anticipating the Defense of Peremptories
The defense of peremptory challenges usually begins with a claim about hidden bias. Lawyers, the argument goes, can sense partiality that a challenge for cause will never capture. Voir dire is imperfect. Jurors are guarded. Some say what they think the court expects to hear. The peremptory challenge, on this account, is a necessary safety valve because it allows the parties to remove prospective jurors who appear risky even though the risk cannot be fully proven. That defense is emotionally intelligible, but it is conceptually unstable. It asks the legal system to trust private suspicion more than public adjudication at the moment the tribunal is being formed. If a juror is genuinely unfit to sit, the court should be able to identify grounds for exclusion through examination, follow-up, and ruling. If the asserted risk cannot be translated into any standard the court is willing to articulate, that is not proof that the juror should be removed. It is proof that the rationale for removal is resting on precisely the sort of impressionistic judgment that has historically invited stereotype, proxy reasoning, and after-the-fact sanitization.
A related defense is that peremptories are indispensable to litigant confidence, particularly for defendants who fear that apparently neutral jurors may still harbor hostility they cannot admit. That argument carries intuitive force because trials do involve risk, and the parties’ confidence in the jury matters. But the answer cannot be that confidence is enhanced whenever each side is granted an unreviewable veto over qualified citizens. Equal access to discretionary power does not transform discretionary power into a constitutional good. The Supreme Court’s own cases reject that logic. Edmonson forbade racially discriminatory peremptories by private civil litigants; McCollum did the same for criminal defendants; J.E.B. extended the principle to gender. The reason was not that only one side’s discriminatory use of strikes is dangerous. It was that the institution itself is corrupted when litigants are permitted to shape the jury on impermissible grounds. If the state cannot tolerate discriminatory exclusion even when both sides have the same formal power to discriminate, it cannot rest the legitimacy of jury formation on the symmetry of private vetoes. Symmetry is not neutrality. It is merely equal access to a flawed device.
Another common defense is efficiency. Peremptory challenges, it is said, permit trials to move. Without them, courts would be forced into endless disputes over cause, more extensive voir dire, and slower jury selection. That claim has surface plausibility, but it relies on too narrow a timescale. Peremptories may shorten some moments at the front end by allowing counsel to exclude without argument. They also generate constitutional objections, sidebars, hearings, remands, reversals, and years of appellate litigation. Miller-El, Foster, and Flowers are not examples of efficiency. They are examples of a procedural shortcut that merely pushes costs downstream into legitimacy crises and post-verdict repair. Arizona’s decision to abolish peremptories is significant precisely because it shows a judiciary willing to reject the assumption that speed at the moment of selection justifies preserving a device with such persistent constitutional baggage. Efficiency in a constitutional court is not measured only in minutes saved during voir dire. It must also account for the institutional cost of verdicts shadowed by plausible claims that the tribunal itself was formed through disguised exclusion.
Some defenders of peremptories also invoke tradition. The challenge has been part of Anglo-American jury practice for generations, and tradition, they suggest, reflects accumulated wisdom about human judgment. Tradition deserves respect, but not immunity. The law has repeatedly inherited procedural traditions that later proved incompatible with equal justice once their operation was examined honestly. Batson itself is the clearest example. The Court did not abolish peremptories in 1986, but it did reject the notion that the tradition surrounding them insulated race-based exclusion from constitutional scrutiny. J.E.B. did the same for gender. Tradition may explain why the device survived. It does not explain why it should continue to survive in its older form after the judiciary has already spent decades acknowledging the discriminatory tendencies built into it. A tradition of reasonless exclusion inside the constitution of the tribunal is not self-legitimating merely because it is old.
The defense sometimes changes form and becomes more candid. Peremptories, the argument goes, are simply realistic. Human beings do judge one another by demeanor, social cues, and accumulated instinct. Jury selection cannot be reduced to algorithm or formula, so the system should allow lawyers room to act on experience. That defense is more revealing than its proponents usually intend. It is true that human beings form impressions. It is also true that constitutional procedure exists in substantial part to discipline the consequences of impressionistic judgment when the state is exercising power. The question is not whether intuition exists. The question is whether intuition should be endowed with formal authority to exclude qualified citizens from a governmental body. Washington’s GR 37 and California’s section 231.7 are important precisely because they refuse to sentimentalize the realism of intuitive judgment. They begin from the premise that intuition, implicit bias, and institutional patterns of exclusion are not unfortunate side issues. They are the reason the old model has to be restructured.
There is also the claim that robust cause-based selection would force judges into artificial certainty. A lawyer may be convinced a juror is unfavorable even though the record will never support a clean cause ruling. Peremptories, on this view, recognize that some adjudicative risks cannot be openly proven. But that argument again proves too much. If the law allows exclusion because a party feels genuine discomfort but cannot produce reasons the court can defend, then the law has accepted that membership in the tribunal may be denied on the basis of private unease. That is exactly the problem. One can rephrase the same point in constitutional terms: if the juror is qualified enough that the court cannot articulate why service would be improper, then the default in a system of equal citizenship should be inclusion, not exclusion. The burden should fall on the party seeking to remove, not on the silent juror who happens to trigger a litigant’s instinct. Peremptories reverse that burden by making unexplained exclusion the entitlement and judicially reasoned inclusion the residue.
Defenders also sometimes suggest that reformers underestimate the special value of peremptories for criminal defendants facing the state. Yet the constitutional cases again complicate that position. McCollum held that criminal defendants, like prosecutors, may not exercise race-based peremptories because the act of striking a juror is part of the selection of a governmental body. That case did not deny the stakes for defendants. It held that the stakes do not authorize discriminatory private control over the composition of the jury. A court-controlled model can preserve every legitimate protection a defendant needs—searching voir dire, expanded cause inquiry, judicial receptiveness to demonstrable bias, and meaningful appellate review—without preserving an unreviewable veto. The defendant’s interest is in an impartial jury, not in ownership of a discretionary instrument that has historically been used in ways the Constitution has repeatedly had to condemn.
Finally, there is the least defensible but still persistent claim: that whatever the doctrine’s imperfections, courts can police abuse well enough through Batson. The record no longer supports that complacency. The Supreme Court’s modern cases are a catalogue of how difficult it remains to disentangle neutral-sounding reasons from discriminatory exclusion. Miller-El required painstaking comparative analysis. Foster exposed the racial logic of the prosecution’s strikes only after the State’s file came to light. Flowers identified disparate questioning and a long history of discriminatory jury selection by the same prosecutor. And as recently as March 31, 2026, the Court heard argument in Pitchford v. Cain over whether Mississippi courts short-circuited Batson’s third step and effectively treated pretext analysis as waived. A doctrine that repeatedly returns to the Supreme Court on the same question—whether lower courts meaningfully identified pretext—cannot be treated as a sufficient institutional answer to the design problem. It is an important remedial floor. It is not a stable architecture for building public confidence in jury formation.
The defense of peremptories therefore collapses into a narrower claim than its proponents often realize. It is not ultimately a defense of constitutional necessity. It is a defense of discretionary convenience, professional habit, and litigant psychology. Those are not trivial interests. They simply are not weighty enough to justify preserving a system in which qualified citizens may still be removed from a governmental body on grounds the court cannot or will not articulate as lawful reasons for exclusion. Once the issue is framed at the proper level, the burden shifts. Reformers do not need to prove that every peremptory strike is abusive. Defenders need to explain why the state should continue to tolerate unilateral reasonless exclusion within the composition of the tribunal after so much law has already been spent trying to contain the abuse that structure predictably invites.
X. Conclusion: The Jury Box Belongs to the Court, Not the Lawyers
The law has spent decades saying two things at once. It says that the jury is central to democratic legitimacy and equal justice. It also says that the parties may still participate in shaping that jury through a procedure defined, in its traditional form, by exclusion without stated reason. Those propositions no longer sit together comfortably. The Supreme Court’s equal-protection cases, from Batson through J.E.B., have steadily narrowed the constitutional space in which litigants may treat jury selection as a field for stereotype-driven judgment. Edmonson and McCollum made clear that jury selection is public enough, and state-infused enough, that even private litigants are bound by constitutional limits when they strike prospective jurors. Washington, California, and Arizona have each, in different ways, acknowledged the same deeper truth: the old model cannot be trusted merely because it is traditional. It either requires aggressive structural correction or it must give way.
New York and the federal system remain on older ground. Federal Rule 47 still ties civil peremptories to 28 U.S.C. § 1870. Federal Rule 24 still allocates peremptories in criminal cases. New York criminal law still defines the peremptory as an objection for which no reason need be assigned, and New York civil law still allots discretionary strikes to the parties. Those provisions matter not simply because they persist, but because they continue to embody the allocation of authority this article rejects. They treat party-controlled exclusion as a normal incident of jury formation rather than as a concentrated constitutional hazard. Yet the judiciary’s own case law and the reform experience elsewhere now make that normalization harder to defend. The practical and doctrinal record points in one direction: when the law allows unilateral exclusion of qualified jurors, it creates a recurring need to police whether the exclusion was actually based on race, sex, or some carefully laundered substitute.
The issue is therefore not whether bias can be eradicated from human judgment. It cannot. The issue is whether the legal system will continue to confer formal authority on intuition, private discomfort, and coded preference at the precise moment it creates the body that will exercise public adjudicative power. A constitutional court should not do that. It should not permit qualified jurors to be excluded because a litigant’s instinct hardens into strategic suspicion. It should not force appellate courts, years later, to reconstruct whether neutral language masked discriminatory motive. And it should not describe the resulting institution as fully the product of law when the last decisive mechanism of exclusion still belongs, in too many jurisdictions, to the parties rather than to the judge.
The cleaner principle is also the simpler one. The jury box belongs to the court, not to the lawyers. Counsel may assist. Counsel may probe. Counsel may argue. Counsel may identify risks the court should address. But the authority to exclude a qualified citizen from the tribunal should rest on public standards the court is willing to articulate and defend. That is what it means to treat jury formation as a judicial function rather than an adversarial game of private filtration. Once that principle is accepted, the supposed mystery of reform begins to disappear. Courts can lead voir dire. Courts can broaden and sharpen cause. Courts can require recorded reasons, conduct comparative analysis in real time, reject historically contaminated rationales, and, if necessary, abolish unilateral discretionary strikes altogether. None of those moves are alien to the judicial role. They are the judicial role, taken seriously.
The unresolved cases of the present confirm the urgency of the change. The Supreme Court’s March 31, 2026 argument in Pitchford v. Cain shows that the system is still litigating, at the highest level, whether lower courts meaningfully performed Batson’s third step when Black jurors were struck. That is not merely a reminder that vigilance is necessary. It is a reminder that a structure built on reasonless exclusion remains structurally unstable even after forty years of constitutional repair work. A legal culture that continues to fight over whether the court adequately tested the authenticity of “neutral reasons” is still living inside the conceptual world that made those reasons so easy to manufacture. The answer is not despair. It is institutional redesign.
If the law is serious about equal citizenship, it should begin with the point at which citizenship is invited into the courtroom and either honored or denied. A citizen summoned for jury service is not a disposable variable in someone else’s trial strategy. That person is a prospective participant in the exercise of public power. Exclusion from that role should therefore occur only through grounds the state can publicly justify. The rest is habit, rhetoric, and procedural inheritance. Peremptory challenges survived because the legal system treated them as useful. They should now be judged by a more demanding criterion: whether they are consistent with a court’s obligation to constitute a lawful, reviewable, and publicly legitimate tribunal. On that question, the older model has become increasingly hard to defend. The future of jury selection belongs not to better excuses for private exclusion, but to fuller judicial ownership of the institution the verdict depends upon.
Deep-Dive Audio Supplement: The Institutional Rot of the Reasonless Strike
A deep-dive audio supplement titled “The Institutional Rot of the Reasonless Strike” serves as a strategic briefing on the structural danger of reframing jury selection as a private tactical entitlement rather than a public judicial function. Designed for senior litigation partners, judicial monitors, legal auditors, civil rights advocates, and serious public readers, this supplement explains why the persistence of the peremptory challenge in New York and federal practice is not merely a tool of trial mechanics, but a broader narrative project that teaches the legal profession to experience the exclusion of qualified citizens as a discretionary right. It frames this procedural design as an operational and legitimacy crisis: once the composition of the tribunal is recast as a field for partisan maneuver, public trust erodes, equal protection is reduced to a “laundering” exercise for neutral-sounding pretext, and the “adversarial instinct” becomes further entrenched over the rule-of-law standards that justify the verdict. At its core, the supplement identifies the ongoing litigation in cases like Pitchford v. Cain as a warning sign of deeper institutional failure—the collapse of the boundary between advocating for a client and abandoning the transparency and reviewability that must define the state’s adjudicative power.
About the Author
Eric Sanders is the owner and president of The Sanders Firm, P.C., a New York-based law firm concentrating on civil rights and high-stakes litigation. A retired NYPD officer, Eric brings a unique, “inside-the-gate” perspective to the intersection of law enforcement and constitutional accountability.
Over a career spanning more than twenty years, he has counseled thousands of clients in complex matters involving police use of force, sexual harassment, and systemic discrimination. Eric graduated with high honors from Adelphi University before earning his Juris Doctor from St. John’s University School of Law. He is licensed to practice in New York State and the Federal Courts for the Eastern, Northern, and Southern Districts of New York.
A recipient of the NAACP—New York Branch Dr. Benjamin L. Hooks “Keeper of the Flame” Award and the St. John’s University School of Law BLSA Alumni Service Award, Eric is recognized as a leading voice in the fight for evidence-based policing and fiscal accountability in public institutions.