Georgia v. McCollum, 505 U.S. 42, 28 (1992)

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

Scalia, J., dissenting

the Law, supra, at 1559-1560. As amicus NAACP Legal Defense and Educational Fund explained in this case:

"The ability to use peremptory challenges to exclude majority race jurors may be crucial to empaneling a fair jury. In many cases an African American, or other minority defendant, may be faced with a jury array in which his racial group is underrepresented to some degree, but not sufficiently to permit challenge under the Fourteenth Amendment. The only possible chance the defendant may have of having any minority jurors on the jury that actually tries him will be if he uses his peremptories to strike members of the majority race." Brief for NAACP Legal Defense and Educational Fund, Inc., as Amicus Curiae 9-10 (footnote omitted).

See Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 56-57; Edmonson, supra, at 644 (Scalia, J., dissenting). In a world where the outcome of a minority defendant's trial may turn on the misconceptions or biases of white jurors, there is cause to question the implications of this Court's good intentions.

That the Constitution does not give federal judges the reach to wipe all marks of racism from every courtroom in the land is frustrating, to be sure. But such limitations are the necessary and intended consequence of the Fourteenth Amendment's state action requirement. Because I cannot accept the Court's conclusion that government is responsible for decisions criminal defendants make while fighting state prosecution, I respectfully dissent.

Justice Scalia, dissenting.

I agree with the Court that its judgment follows logically from Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991). For the reasons given in the Edmonson dissents, however, I think that case was wrongly decided. Barely a year later, we witness its reduction to the terminally absurd:


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