J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 30 (1994)

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156

J. E. B. v. ALABAMA ex rel. T. B.

Scalia, J., dissenting

Court, I think the State has shown that jury strikes on the basis of gender "substantially further" the State's legitimate interest in achieving a fair and impartial trial through the venerable practice of peremptory challenges. Swain v. Alabama, 380 U. S. 202, 212-220 (1965) (tracing the "very old credentials" of peremptory challenges); Batson, supra, at 118-120 (Burger, C. J., dissenting); post, at 161-162 (Scalia, J., dissenting). The two sexes differ, both biologically and, to a diminishing extent, in experience. It is not merely "stereotyping" to say that these differences may produce a difference in outlook which is brought to the jury room. Accordingly, use of peremptory challenges on the basis of sex is generally not the sort of derogatory and invidious act which peremptory challenges directed at black jurors may be.

Justice O'Connor's concurring opinion recognizes several of the costs associated with extending Batson to gender-based peremptory challenges—lengthier trials, an increase in the number and complexity of appeals addressing jury selection, and a "diminished . . . ability of litigants to act on sometimes accurate gender-based assumptions about juror attitudes." Ante, at 149-150. These costs are, in my view, needlessly imposed by the Court's opinion, because the Constitution simply does not require the result that it reaches.

Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.

Today's opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors. The price to be paid for this display—a modest price, surely—is that most of the opinion is quite irrelevant to the case at hand. The hasty reader will be surprised to learn, for example, that this lawsuit involves a complaint about the use of peremptory challenges to exclude men from a petit jury. To be sure,

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