# Georgia v. McCollum > Supreme Court of the United States · June 18, 1992 · 505 U.S. 42 URL: https://www.frixlaw.com/law-library/cases/9432612 ## Case - **Full name:** GEORGIA v. McCOLLUM Et Al. - **Court:** Supreme Court of the United States - **Decided:** June 18, 1992 - **Citations:** 505 U.S. 42; 112 S. Ct. 2348; 120 L. Ed. 2d 33; 1992 U.S. LEXIS 3687 - **Precedential status:** Published - **Opinion:** Concurrence by Thomas - **Judges:** Scalia, Blackmun, Rehnquist, White, Stevens, Kennedy, Soutek, Thomas, O'Connor, Scalía - **Cited by:** 1,048 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9432612 ## How later opinions describe it (automated extraction) - explaining that “a prohibition of the exercise of discriminatory peremptory challenges [does not] violate a defendant’s Sixth Amendment right to the effective assistance of counsel . . . . [because] neither the Sixth Amendment right nor the attorney-client privilege gives a cr… - stating that the majority’s opinion, which extended Batson to a white defendant’s peremptory challenges aimed at removing all African-Americans from the jury, would apply with equal force to the case of a minority defendant’s exercise of peremptory challenges to remove white p… - holding a criminal defendant may not use a peremptory strike in a discriminatory manner because "[r]egardless of who invokes the discriminatory challenge, there can be no doubt that the harm is the same — in all cases, the juror is subjected to open and public racial discrimin… - holding that "[i]n our heterogenous society policy as well as constitutional considerations militate against the divisive assumption — as a per se rule — that justice in a court of law may turn upon the pigmentation of skin, the accident of birth, or the choice of religion" - holding that the State may challenge a criminal defendant’s peremptory strikes ## Opinion text Justice Thomas, concurring in the judgment. As a matter of first impression, I think that I would have shared the view of the dissenting opinions: A criminal defendant’s use of peremptory strikes cannot violate the Fourteenth Amendment because it does not involve state action. Yet, I agree with the Court and The CHIEF Justice that our decision last Term in Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991), governs this ease and requires the opposite conclusion. Because the respondents do not question Edmonson , I believe that we must accept its consequences. I therefore concur in the judgment reversing the Georgia Supreme Court. I write separately to express my general dissatisfaction with our continuing attempts to use the Constitution to regulate peremptory challenges. See, e. g., Batson v. Kentucky, 476 U. S. 79 (1986); Powers v. Ohio, 499 U. S. 400 (1991); Ed-monson, supra. In my view, by restricting a criminal defendant’s use of such challenges, this case takes us further from the reasoning and the result of Strauder v. West Virginia, 100 U. S. 303 (1880). I doubt that this departure will produce favorable consequences. On the contrary, I am certain that black criminal defendants will rue the day that this Court ventured down this road that inexorably will lead to the elimination of peremptory strikes. In Strauder , as the Court notes, we invalidated a state law that prohibited blacks from serving on juries. In the course of the decision, we observed that the racial composition of a jury may affect the outcome of a criminal ease. We explained: “It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.” Id., at 309 . We thus recog *61 nized, over a century ago, the precise point that Justice O’Connor makes today. Simply stated, securing representation of the defendant’s race on the jury may help to overcome racial bias and provide the defendant with a better chance of having a fair trial. Post, at 68-69. I do not think that this basic premise of Stmuder has become obsolete. The public, in general, continues to believe that the makeup of juries can matter in certain instances. Consider, for example, how the press reports criminal trials. Major newspapers regularly note the number of whites and blacks that sit on juries in important cases. 1 Their editors and readers apparently recognize that conscious and unconscious prejudice persists in our society and that it may influence some juries. Common experience and common sense confirm this understanding. In Batson, however, this Court began to depart from Stmuder by holding that, without some actual showing, suppositions about the possibility that jurors may harbor prejudice have no legitimacy. We said, in particular, that a prosecutor could not justify peremptory strikes “by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race.” 476 U. S., at 97 . As noted, however, our decision in Stmuder rested on precisely such an “assumption” or “intuition.” We reasonably surmised, without direct evidence in any particular case, that all-white juries might judge black defendants unfairly. Our departure from Stmuder has two negative consequences. First, it produces a serious misordering of our priorities. In Stmuder, we put the rights of defendants foremost. Today’s decision, while protecting jurors, leaves defendants with less means of protecting themselves. Un *62 less jurors actually admit prejudice during voir dire, defendants generally must allow them to sit and run the risk that racial animus will affect the verdict. Cf. Fed. Rule Evid. 606(b) (generally excluding juror testimony after trial to impeach the verdict). In effect, 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. At a minimum, I think that this inversion of priorities should give us pause. Second, our departure from Stmuder has taken us down a slope of inquiry that had no clear stopping point. Today, we decide only that white defendants may not strike black veniremen on the basis of race. Eventually, we will have to decide whether black defendants may strike white veniremen. 2 See, e. g., State v. Carr, 261 Ga. 845 , 413 S. E. 2d 192 (1992). Next will come the question whether defendants may exercise peremptories on the basis of sex. See, e. g., United States v. De Gross, 960 F. 2d 1433 (CA9 1992). The consequences for defendants of our decision and of these future cases remain to be seen.. But whatever the benefits were that this Court perceived in a criminal defendant’s having members of his class on the jury, see Strauder, 100 U. S., at 309-310 , they have evaporated. A computer search, for instance, reveals that the phrase “all white jury” has appeared over 200 times in the past five years in the New York Times, Chicago Tribune, and Los Angeles Times. The NAACP Legal Defense and Educational Fund, Inc., has submitted a brief arguing, in all sincerity, that “whether white defendants can use peremptory challenges to purge minority jurors presents quite different issues from whether a minority defendant can strike majority group jurors.” Brief for NAACP Legal Defense and Educational Fund, Inc., as Amicus Curiae 3-4. Although I suppose that this issue technically remains open, it is difficult to see how the result could be different if the defendants here were black. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9432612. Public record. Not legal advice.