O'Connor, J., dissenting
criminal proceeding." 454 U. S., at 325. Since making peremptory challenges plainly qualifies as a "traditional function" of criminal defense lawyers, see Swain v. Alabama, 380 U. S. 202, 212-219 (1965); Lewis v. United States, 146 U. S. 370, 376 (1892), Dodson forecloses the Court's functional analysis.
Even aside from our prior rejection of it, the Court's functional theory fails. "[A] State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement . . . that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U. S. 991, 1004 (1982). Thus, a private party's exercise of choice allowed by state law does not amount to state action for purposes of the Fourteenth Amendment so long as "the initiative comes from [the private party] and not from the State." Jackson v. Metropolitan Edison Co., 419 U. S. 345, 357 (1974). See Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 165 (1978) (State not responsible for a decision it "permits but does not compel"). The government in no way influences the defense's decision to use a peremptory challenge to strike a particular juror. Our adversarial system of criminal justice and the traditions of the peremptory challenge vest the decision to strike a juror entirely with the accused. A defendant "may, if he chooses, peremptorily challenge 'on his own dislike, without showing any cause;' he may exercise that right without reason or for no reason, arbitrarily and capriciously." Pointer v. United States, 151 U. S. 396, 408 (1894) (quoting 1 E. Coke, Institutes 156b (19th ed. 1832)). "The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control." Swain, supra, at 220. See Dodson, supra, at 321-322; Lewis, supra, at 376, 378.
Certainly, Edmonson v. Leesville Concrete Co. did not render Dodson and its realistic approach to the state action inquiry dead letters. The Edmonson Court distinguishedPage: Index Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
Last modified: October 4, 2007