Georgia v. McCollum, 505 U.S. 42, 20 (1992)

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Cite as: 505 U. S. 42 (1992)

Thomas, J., concurring in judgment

nized, over a century ago, the precise point that Justice O'Connor makes today. Simply stated, securing representation of the defendant's race on the jury may help to overcome racial bias and provide the defendant with a better chance of having a fair trial. Post, at 68-69.

I do not think that this basic premise of Strauder has become obsolete. The public, in general, continues to believe that the makeup of juries can matter in certain instances. Consider, for example, how the press reports criminal trials. Major newspapers regularly note the number of whites and blacks that sit on juries in important cases.1 Their editors and readers apparently recognize that conscious and unconscious prejudice persists in our society and that it may influence some juries. Common experience and common sense confirm this understanding.

In Batson, however, this Court began to depart from Strauder by holding that, without some actual showing, suppositions about the possibility that jurors may harbor prejudice have no legitimacy. We said, in particular, that a prosecutor could not justify peremptory strikes "by stating merely that he challenged jurors of the defendant's race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race." 476 U. S., at 97. As noted, however, our decision in Strauder rested on precisely such an "assumption" or "intuition." We reasonably surmised, without direct evidence in any particular case, that all-white juries might judge black defendants unfairly.

Our departure from Strauder has two negative consequences. First, it produces a serious misordering of our priorities. In Strauder, we put the rights of defendants foremost. Today's decision, while protecting jurors, leaves defendants with less means of protecting themselves. Un-1 A computer search, for instance, reveals that the phrase "all white jury" has appeared over 200 times in the past five years in the New York Times, Chicago Tribune, and Los Angeles Times.


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