Petitioner Alvarado claimed at his criminal trial that the
Government used peremptory challenges to remove black jurors solely
because of race, contrary to Batson v. Kentucky,
476 U. S. 79
District Court accepted the Government's explanations for its
challenges, and Alvarado was convicted. In affirming the
conviction, the Court of Appeals did not rule on Alvarado's
argument that the Government's explanations were pretextual or the
Government's arguments that he had not made out a prima facie
error, and that it had race-neutral reasons for the
challenges. The court held, instead, that no appellate inquiry was
required into the merits of a Batson
claim if the jury
finally chosen represented a fair cross section of the
The case is remanded for the Court of Appeals to
pass on the adequacy of the Government's reasons for exercising its
peremptory challenges. The Government agrees that the Court of
Appeals' judgment rests on an improvident ground. Thus, it is
appropriate for this Court to grant certiorari, vacate the judgment
below, and direct reconsideration in light of the representations
made by the United States in this Court. See, e.g., Biddle v.
484 U.S. 1054. This result is not unusual even
when, as here, the Government has suggested that there is another
ground on which the decision below could be affirmed if the case
were brought in this Court.
Certiorari granted; 891 F.2d 439 vacated and remanded.
At his criminal trial, petitioner claimed that the Government
used certain peremptory challenges to remove black jurors solely on
the grounds of race, contrary to Batson v. Kentucky,
476 U. S. 79
(1986). The District Court accepted the Government's explanations
for its challenges, and petitioner was convicted. He pursued his
claim in the Court of Appeals, claiming that the
the Government's explanations were pretextual. The Government
asserted that petitioner had
Page 497 U. S. 544
not made out a prima facie Batson
error, and that it
had race-neutral reasons for each challenge. The Court of Appeals
did not rule on these competing claims, for it held that no
appellate inquiry was required into the merits of a Batson
claim if the jury finally chosen represented a fair cross section
of the community, as did this jury. The conviction was affirmed.
891 F.2d 439.
Petitioner, seeking certiorari, urges that the Court of Appeals
relied on an erroneous ground in rejecting the Batson
claim. The United States agrees that the Court of Appeals erred in
holding that, as long as the petit jury chosen satisfied the Sixth
Amendment's fair cross-section concept, it need not inquire into
the claim that the prosecution had stricken jurors on purely racial
grounds. That holding, the Government states, is contrary to
and is also discredited by our decision in
Holland v. Illinois, 493 U. S. 474
(1990), which held that the fair cross-section requirement of the
Sixth Amendment did not apply to the petit jury and which was
handed down after the Court of Appeals issued its opinion below.
The Government urges us to deny certiorari, however, because
petitioner failed to make out a prima facie
intentional discrimination and because the reasons given for the
challenges were race-neutral, grounds for decision that the Court
of Appeals did not reach.
When the Government has suggested that an error has been made by
the court below, it is not unusual for us to grant certiorari,
vacate the judgment below, and direct reconsideration in light of
the representations made by the United States in this Court.
See, e.g., Biddle v. United States,
484 U.S. 1054 (1988);
Malone v. United States,
484 U.S. 919 (1987). Nor is it
novel to do so in a case where error is conceded, but it is
suggested that there is another ground on which the decision below
could be affirmed if the case were brought here. Indeed, a case
decided earlier this Term presented such a situation and, without
dissent, we vacated the judgment below for reconsideration in light
Page 497 U. S. 545
position asserted by the Solicitor General in this Court.
Chappell v. United States,
494 U.S. 1075 (1990). This is
the appropriate course to follow in this case. If the judgment
below rested on an improvident ground, as the Government suggests,
the Court of Appeals should in the first instance pass on the
adequacy of the Government's reasons for exercising its peremptory
Consequently, the motion of petitioner for leave to proceed
in forma pauperis
and the petition for a writ of
certiorari are granted. The judgment is vacated and the case is
remanded to the United States Court of Appeals for the Second
Circuit for further consideration in light of the position asserted
by the Solicitor General in his brief for the United States filed
May 21, 1990.
It is so ordered.
Chief Justice REHNQUIST, with whom Justice O'CONNOR, Justice
SCALIA and Justice KENNEDY join, dissenting.
I have previously expressed my doubt as to the wisdom of
automatically vacating a Court of Appeals judgment favorable to the
government when the Solicitor General confesses error in this
Court. See Mariscal v. United States, 449 U.
, 449 U. S. 406
(1981) (REHNQUIST, J., dissenting). Today the Court carries this
unfortunate practice to new lengths: the Solicitor General has not
confessed error in this case, but instead has taken the position
that the judgment of the Court of Appeals was correct, and that
certiorari should be denied.
The Solicitor General's brief in opposition contains the
"Although petitioner's Batson
claim lacks merit, we
agree with petitioner that the Court of Appeals' analysis departed
from the general approach to discrimination and jury selection that
this Court has marked out in Batson.
The Court seizes upon this concession that the "analysis" of the
Court of Appeals may have been wrong as a justification
Page 497 U. S. 546
for vacating the judgment. But the entire thrust of the
Solicitor General's brief is that the result reached by the Court
of Appeals was correct.
A confession of error is at least a deliberate decision on the
part of the Solicitor General to concede that a Court of Appeals
judgment in favor of the government was wrong. In the present case,
however, we have only the above-quoted statement of the Solicitor
General in his brief opposing a grant of certiorari. If we are now
to vacate judgments on the basis of what are essentially
observations in the Solicitor General's brief about the "approach"
of the Court of Appeals in a particular case, I fear we may find
the Solicitor General's future briefs in opposition much less
explicit and frank than they have been in the past. Since we depend
heavily on the Solicitor General in deciding whether to grant
certiorari in cases in which the government is a party, the Court
will be the loser as a result.