318
Scalia, J., concurring in judgment
otherwise use his full complement of peremptory challenges for the noncurative purposes that are the focus of the peremptory right. Martinez-Salazar did not show that, if he had not used his peremptory challenge curatively, he would have used it peremptorily against another juror. He did not ask for a makeup peremptory or object to any juror who sat. Martinez-Salazar simply made a choice to use his peremptory challenge curatively.
Justice Scalia, with whom Justice Kennedy joins, concurring in the judgment.
I agree with the Court's analysis of the issue before us: Respondent has been accorded the full number of peremptory challenges to which he was entitled. The fact that he voluntarily chose to expend one of them upon a venireman who should have been stricken for cause makes no difference.
I do not join the opinion of the Court because it unnecessarily pronounces upon the question whether, had respondent not expended his peremptory challenge, he would have been able to complain about the seating of the biased juror. See ante, at 315 ("Martinez-Salazar had the option of letting Gilbert sit on the petit jury and, upon conviction, pursuing a Sixth Amendment challenge on appeal"). Since he did expend the challenge, that issue is simply not before us.
I am far from certain, moreover, that the Court's suggested resolution of the issue is correct. It is easy enough to agree that we have no warrant "to read into Rule 24," ibid., a requirement that peremptories be used to remove veniremen properly challenged for cause. The difficult question, however, is not whether Federal Rule of Criminal Procedure 24(b) requires exercise of the peremptory, but whether normal principles of waiver (not to say the even more fundamental principle of volenti non fit injuria) disable a defendant from objecting on appeal to the seating of a juror he was entirely able to prevent. I would not find it easy to overturn a conviction where, to take an extreme ex-
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