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June 13, 2005

The joys of Justice Breyer

As discussed in this SCOTUS review post, I am inclined to let others in the blogsphere dissect the majority and dissenting opinions in Miller-El.  But I cannot resist giving Justice Breyer's fascinating Miller-El concurrence a bit of a shout-out here.

Justice Breyer's concurrence reads like a mini law review article building to his conclusion that "it necessary to reconsider Batson's test and the peremptory challenge system as a whole."  The opinion — which cites more than a dozen law review articles and a range of other interesting sources (including the website of a "trial consulting firm advertis[ing] a new jury-selection technology") — highlights that you can take Stephen Breyer out of the academy, but you can't take the academic out of Stephen Breyer.

As he builds his anti-peremptory case, I was particularly intrigued by Justice Breyer's closing assertions that "peremptory challenges betray the jury's democratic origins and undermine its representative function" and that "peremptory challenges may also contribute to public cynicism about the fairness of the jury system and its role in American government."  Slip op. at 7-8.  Silly me, all this time I have been thinking it was the anti-jury remedy that Justice Breyer engineered in Booker which was designed to "betray the jury's democratic origins and undermine its representative function" while also contributing to "public cynicism about ... its role in American government."

June 13, 2005 at 12:45 PM | Permalink

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» Miller-El opinions from a Public Defender
SCOTUS today issued Miller-El v. Dretke, a Texas death row inmate's Habeas challenge to peremptory strikes made by prosecutors, claiming that they were made on the basis of race. Lower courts had routinely rejected Miller-El's claims and the 5th Circuit [Read More]

Tracked on Jun 13, 2005 2:03:48 PM

» Miller-El opinions from a Public Defender
SCOTUS today issued Miller-El v. Dretke, a Texas death row inmate's Habeas challenge to peremptory strikes made by prosecutors, claiming that they were made on the basis of race. Lower courts had routinely rejected Miller-El's claims and the 5th Circuit [Read More]

Tracked on Jun 13, 2005 2:35:59 PM

» Miller-El granted Habeas relief from a Public Defender
Justice Breyer has a very interesting concurrence, where he advocates adopting Justice Marshall's position from concurrence in Batson: abandon peremptory challenges. Prof. Berman has a good post on this concurrence. [Read More]

Tracked on Jun 13, 2005 2:45:45 PM

» Blog Round-Up - Monday June 13th from SCOTUSblog
Here is the public radio program "Here and Now" with a report from Lyle Denniston on today's opinions. The Election Law Blog has this post on the Texas redistricting case, Henderson v. Perry. The post, by Rick Hasen, cites to... [Read More]

Tracked on Jun 13, 2005 11:38:58 PM

» Blog Round-Up - Monday June 13th from SCOTUSblog
Here is the public radio program "Here and Now" with a report from Lyle Denniston on today's opinions. The Election Law Blog has this post on the Texas redistricting case, Henderson v. Perry. The post, by Rick Hasen, cites to... [Read More]

Tracked on Jun 13, 2005 11:39:30 PM

» Blog Round-Up - Monday June 13th from SCOTUSblog
Here is the public radio program "Here and Now" with a report from Lyle Denniston on today's opinions. The Election Law Blog has this post on the Texas redistricting case, Henderson v. Perry. The post, by Rick Hasen, cites to... [Read More]

Tracked on Jun 13, 2005 11:41:01 PM

Comments

An odd post, in that I can't tell whether you agree or disagree with Breyer's bottom line. Personally, I have thought for years that we should get rid of peremptories; their only useful function, it seems to me, is to serve as a full-employment guarantee for the sleazy jury consulting industry (and peremptories have lots of non-useful and pernicious functions, as Miller-El well shows). I'm glad to see Breyer on the bandwagon, and am only sorry that he didn't pick up any other votes for his concurrence. (Disclosure: I clerked for him on the 1st cir, but I don't recall ever having discussed this issue with him.)

As for your final comment, Booker, as important as it is, is inside baseball and seems unlikely to me to affect public perceptions of the jury's role in our democracy. In any event, the undermining of the jury's representative function and the growing public cynicism about its role have been around a lot longer than Breyer's Booker opinion, and I don't think it's unfair to ascribe part of those problems to the long and inglorious history of lawyers' use of peremptories.

Posted by: David | Jun 14, 2005 6:18:29 PM

David, nice points, though I can add that I really have not had enough trial experience to have fully informed opinions about peremptories. The main point of this post was to spotlight that Justice Breyer's Booker remedy seem perculiar if he is seriously committed to promoting the "representative function" of juries, as well as their "role in American government."

Posted by: Doug B. | Jun 14, 2005 9:50:31 PM

As someone who has tried a lot of jury trials, I have to say that I would fight tooth and nail to maintain peremptory challenges. There are always jurors who know exactly what to say about how they would follow the law about the 5th Amendment despite their strong belief that anyone who is charged with a crime they didn't commit would testify in their own defense; those who say that, despite the fact that everyone in their family is a police officer or prosecutor, they would not give police officer testimony any extra credibility and would maintain the presumption of innocence; and those who never say anything objectionable, but just sit through the entire voir dire process shooting looks of disdain at you and your client. That is why we still need peremptory challenges--academic arguments be damned.

Posted by: txpublicdefender | Jun 16, 2005 9:00:57 AM

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