469 U.S. 1024 (1984)

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U.S. Supreme Court

THOMPSON v. U.S. , 469 U.S. 1024 (1984)

469 U.S. 1024

No. 83-6809

Supreme Court of the United States

November 13, 1984

On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit.

The petition for a writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Once again this Court is confronted with a challenge to the constitutionality of the Government's use of peremptory challenges to exclude potential jurors in a criminal trial because of their race. See Swain v. Alabama, 380 U.S. 202, 221, 836 ( 1965) ("[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws").* The continued vitality of Swain is by now a "distressingly familiar" issue to this Court. Williams v. Illinois, decided with Dixon v. Illinois and Yates v. Illinois, 466 U.S. 981, 982, 2365 (1984) (MARSHALL, J., dissenting from denial of certiorari); see McCray v. New York, decided with Miller v. Illinois and Perry v. Louisiana, 461 U.S. 961, 963, 103 S. Ct. 2438, 2439 (1983) (MARSHALL, J., dissenting from denial of certiorari); Gilliard v. Mississippi, 464 U.S. 867 (1983) (MARSHALL, J., dissenting from denial of certiorari). A majority of the Court has expressed the position that this question merits plenary review. See McCray, supra, 461 U.S., at 961 (opinion of STEVENS, J., joined by

Page 469 U.S. 1024 , 1025

BLACKMUN and POWELL, JJ.); id., at 963 (MARSHALL, J., joined by BRENNAN, J., dissenting from denial of certiorari). The call to reconsider Swain, from both courts and scholars, continues unabated. It is time for this Court to face up to the issue.

Justice MARSHALL has written persuasively concerning the immediate need to reconsider Swain in light of Duncan v. Louisiana, 391 U.S. 145 (1968), and Taylor v. Louisiana, 419 U.S. 522 (1975), which found the Sixth Amendment's jury trial guarantees applicable to the States through the Fourteenth Amendment. See McCray v. New York, supra, 461 U.S., at 963 (MARSHALL, J., dissenting from denial of certiorari); Gilliard v. Mississippi, supra, 464 U.S., at 867 (MARSHALL, J., dissenting from denial of certiorari). I add my voice here simply to make two points. First, however plausible the rationale of Swain may have seemed two decades ago, the justification for shielding peremptory challenges from equal protection scrutiny has not withstood the test of time. Swain thus should be reconsidered for equal protection as well as Sixth Amendment reasons. Second, the admirable intent of three of my colleagues in acknowledging the import of the issue but deferring our review "to allow the various States to serve as laboratories in which the issue receives further study," see McCray, supra, 461 U.S., at 963, 103 S. Ct., at 2439 (opinion of STEVENS, J., joined by BLACKMUN and POWELL, JJ.), has spawned confusion not clarification in the courts below.


Swain is an anomaly, a departure from two fundamental principles of constitutional law. The first is the basic equal protection notion that government officials cannot exclude persons from juries solely because of their race. "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 [a jury of peers] which others enjoy." Strauder v. West Virginia, 100 U.S. 303, 308-309 (1880). The second is the basic notion inherent in the "American tradition of trial by jury" that "[j]ury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discrimination which are abhorrent to the democratic ideals of trial by jury." Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 985 (1946). Notwithstanding the force of these principles, [469 U.S. 1024 , 1026]

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