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

Justice O'Connor agreed that Alabama's strikes violated equal protection because the State had not supplied the exceedingly persuasive justification required for sex-based classifications. She wrote separately, however, to emphasize the practical costs of expanding Batson's limits on peremptory challenges.

In her view, peremptory challenges are historically important tools for producing impartial juries because lawyers may act on experience, intuition, demeanor, and nonverbal signals that cannot always be articulated as a challenge for cause. Requiring explanations for more strikes transforms the peremptory challenge into something closer to a for-cause challenge, increases jury-selection litigation, and may leave parties unable to remove jurors they reasonably perceive as unfavorable.

She also maintained that gender can sometimes correlate with perspectives formed through different life experiences. The constitutional rule therefore operates as a special rule of relevance: even where a gender-based inference may sometimes be accurate, the law forbids its use to prevent discriminatory exclusion.

Justice O'Connor would confine the holding to governmental use of sex-based peremptory challenges. She continued to disagree with prior decisions treating private civil litigants and criminal defendants as state actors when they exercise peremptory challenges, warning that applying this rule to them could unduly burden defendants and private parties seeking a fair jury.

Justice Kennedy agreed that equal protection bars sex-based peremptory strikes because the Fourteenth Amendment protects persons as individuals. A prospective juror excluded because of sex suffers the same basic dignitary and civic injury whether the exclusion results from a statute categorically barring that sex from jury service or from a peremptory challenge.

He stressed that the Equal Protection Clause's neutral language extends protection to any person. Thus, the fact that Alabama struck men rather than women did not lessen the constitutional violation; equal protection does not depend on whether the excluded sex has historically been the more disadvantaged group.

Justice Kennedy further explained that jurors do not sit as representatives of racial or sexual groups. A representative jury pool is a structural safeguard against bias, but each juror must decide the case as an individual under the court's instructions rather than give effect to personal racial or gender prejudice. The Constitution guarantees an impartial jury, not a jury containing members of a party's preferred race or gender.

Chief Justice Rehnquist accepted Batson but concluded that its rule should not be extended from race to sex. Race classifications receive strict scrutiny, while sex classifications receive a less demanding form of heightened scrutiny; racial minorities also have, in his view, a distinct need for protection that justified Batson's exceptional intervention in peremptory-challenge practice.

He believed sex-based challenges can substantially further the legitimate goal of seating an impartial jury because men and women may have biological and experiential differences that affect outlook. In his view, using sex as one consideration in a peremptory strike is not generally equivalent to the invidious and derogatory exclusion of Black jurors that Batson addressed.

He also stressed the systemic costs identified by Justice O'Connor: longer jury selection, more appellate litigation, and reduced ability to use peremptories based on sometimes accurate assessments of likely juror attitudes. He concluded that the Constitution did not require imposing those costs.

Justice Scalia argued that the majority's extended discussion of the historical exclusion of women was largely beside the point because Alabama was accused of striking men, while J. E. B. himself had used most of his strikes against women. He maintained that the case did not show a systemwide effort to dishonor or exclude one sex from civic participation, but opposing litigants each attempting to select a jury favorable to its position.

He distinguished categorical exclusion from jury service from a peremptory challenge. In his view, categorical exclusion expresses a judgment that a group is incompetent, whereas a peremptory strike reflects a party's belief that a particular group may be less favorable to that party in a specific case. Since all groups can be struck depending on the nature of litigation, he contended that the overall peremptory system does not deny any group equal protection.

Justice Scalia further argued that the majority's test threatens peremptory challenges more broadly. Peremptories traditionally permit an arbitrary strike based on instinct, hunches, and concerns that cannot be demonstrated through voir dire. Requiring lawyers to articulate acceptable reasons erodes that traditional function, expands collateral litigation, and particularly harms criminal defendants who have historically relied on the challenge to remove jurors they distrust.

He rejected the premise that sex has no predictive value regarding juror outlook, reasoning that experienced litigators may reasonably conclude that sex-related experiences matter in particular kinds of cases. In his view, the majority invalidated an important common-law trial practice not to remedy a genuine denial of equal protection, but to make a symbolic statement about sexual equality.