Georgia v. McCollum, 505 U.S. 42, 19 (1992)

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Thomas, J., concurring in judgment

issue of "state action" under the Fourteenth Amendment. I therefore join the opinion of the Court.

Justice Thomas, concurring in the judgment.

As a matter of first impression, I think that I would have shared the view of the dissenting opinions: A criminal defendant's use of peremptory strikes cannot violate the Fourteenth Amendment because it does not involve state action. Yet, I agree with the Court and The Chief Justice that our decision last Term in Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991), governs this case and requires the opposite conclusion. Because the respondents do not question Edmonson, I believe that we must accept its consequences. I therefore concur in the judgment reversing the Georgia Supreme Court.

I write separately to express my general dissatisfaction with our continuing attempts to use the Constitution to regulate peremptory challenges. See, e. g., Batson v. Kentucky, 476 U. S. 79 (1986); Powers v. Ohio, 499 U. S. 400 (1991); Edmonson, supra. In my view, by restricting a criminal defendant's use of such challenges, this case takes us further from the reasoning and the result of Strauder v. West Virginia, 100 U. S. 303 (1880). I doubt that this departure will produce favorable consequences. On the contrary, I am certain that black criminal defendants will rue the day that this Court ventured down this road that inexorably will lead to the elimination of peremptory strikes.

In Strauder, as the Court notes, we invalidated a state law that prohibited blacks from serving on juries. In the course of the decision, we observed that the racial composition of a jury may affect the outcome of a criminal case. We explained: "It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy." Id., at 309. We thus recog-

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