150
O'Connor, J., concurring
gants to act on sometimes accurate gender-based assumptions about juror attitudes.
These concerns reinforce my conviction that today's decision should be limited to a prohibition on the government's use of gender-based peremptory challenges. The Equal Protection Clause prohibits only discrimination by state actors. In Edmonson, supra, we made the mistake of concluding that private civil litigants were state actors when they exercised peremptory challenges; in Georgia v. McCollum, 505 U. S. 42, 50-55 (1992), we compounded the mistake by holding that criminal defendants were also state actors. Our commitment to eliminating discrimination from the legal process should not allow us to forget that not all that occurs in the courtroom is state action. Private civil litigants are just that—private litigants. "The government erects the platform; it does not thereby become responsible for all that occurs upon it." Edmonson, 500 U. S., at 632 (O'Connor, J., dissenting).
Clearly, criminal defendants are not state actors. "From
arrest, to trial, to possible sentencing and punishment, the antagonistic relationship between government and the accused is clear for all to see. . . . [T]he unique relationship between criminal defendants and the State precludes attributing defendants' actions to the State . . . ." McCollum, supra, at 67 (O'Connor, J., dissenting). The peremptory challenge is " 'one of the most important of the rights secured to the accused.'" Swain, 380 U. S., at 219 (emphasis added); Goldwasser, Limiting a Criminal Defendant's Use of Peremptory Challenges: On Symmetry and the Jury in a Criminal Trial, 102 Harv. L. Rev. 808, 826-833 (1989). Limiting the accused's use of the peremptory is "a serious misordering of our priorities," for it means "we have exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death." McCollum, supra, at 61-62 (Thomas, J., concurring in judgment).
Page: Index Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 NextLast modified: October 4, 2007