When using peremptory challenges in a civil case, is it OK to strike a juror because he or she is butt ugly?

Say you are involved in an antitrust suit representing a defendant drug manufacturer. The plaintiff is another drug manufacturer. The antitrust dispute is about a drug used to fight AIDS. After voir dire, and during jury selection, the lawyer for the defendant moves to strike juror 10 using a peremptory challenge. Plaintiff’s counsel objects and claims that juror 10 is likely a homosexual based upon how that prospective juror answered certain questions regarding marital status during voir dire. Plaintiff’s counsel claims that a Batson challenge is appropriate even though the motivation to strike a juror simply because of the juror’s sexual orientation has never been ruled out-of-bounds by the Supreme Court.  No neutral explanation is given by defense counsel.

To make the hypothetical better, assume that defense counsel asserts that “my client simply doesn’t want gay people on the jury” and “my client’s desire is not founded upon anything having to do with how the drug is used” and “I don’t have to give any rational explanation in support of my client’s position.”  The judge agrees with defense counsel, refuses to reverse the strike, and the matter is appealed (to the Ninth Circuit) after an adverse jury verdict.  Who wins?  Why?

Again, let’s change the facts but only slightly. The drug is a face cream with a powerful antioxidant that conditions the skin. The juror is terribly ugly. No other facts change. How do you rule, and why?


PS  For a description of the real case, see ADAM LIPTAK, Court to Decide if Lawyers Can Block Gays From Juries, New York Times (July 29, 2013).  Thanks to How Appealing (July 29, 2013).

Photo Credit:  L. Marie's photostream per Creative Commons license.

Photo Credit: L. Marie’s photostream per Creative Commons license.

19 responses

  1. Sexual orientation is not yet a protected class for jury service in the federal system, although a bill is pending that would make it so.

    As for ugly people, if rational basis scrutiny applies to classifications of sexual orientation by a government (as in the California case), then, even if ugly people have not been discriminated against historically, why wouldn’t rational basis scrutiny be the death knell for ugly strikes?

    Do you see where this is going? Are peremptory challenges soon going to end up in the dust bin of history? Do lawyers who try civil cases think that would be a good or bad thing?

    All the best.


  2. I’m conflicted on this. On the one hand, I’m a guy–if the (female) juror prospect has to sneak up on a glass of water, then strike her.

    On the other hand, everybody knows that beautiful women are stump-stupid; they can only get by on their looks. As a judge, I want the most intelligent jury possible–seat the ugly one, and make sure her water cup is completely enclosed in an oversized cozy. (Because I’m a pest, too, make it a Northwestern cozy, there in the middle of Nebraska.)

    On the other hand, without knowing the law, the logic of the matter strikes me this way. If a lawyer need not explain his peremptory challenge (per TheFreeDictionary, not your hypothetical lawyer’s claim), he ought not have to defend it, either, nor should the judge rule against him. After all, lawyers only get a small number of this sort of challenge.

    Additionally, a jury isn’t an employment function, as is a store that sells cosmetics and, in the course of which, employs a counter girl to sell the various face creams in its inventory. Looks matter in this type of job (no matter the PC bleaters), and the store would be justified in not hiring a butt ugly woman into that position. On the jury, though, looks are irrelevant.

    On the other hand, if the lawyer really is going to defend his challenge with “my client simply doesn’t want gay people on the jury”, then I’d be inclined to rule against him. Part of a defendant getting a jury of his peers is the defendant being stuck with a jury of his peers. The defendant doesn’t get to decide for himself who his peers are beyond being sure the selectees are not particularly biased against him personally and being assured they’ll decide on the facts and not their personal beliefs.

    As to who will win at the 9th, I suggest that’s irrelevant. The Supreme Court is likely to reverse that body.

    Eric Hines

  3. Rich, much to ponder here. A proposal made by a colleague of mine, who was an AUSA with maybe 100 criminal trials under his belt, is to just eliminate peremptory challenges altogether, but the implicit deal would be that judges would have to be a bit more reasonable about granting for-cause challenges. I still remember a case I tried in which the plaintiff claimed that she had been “wrongfully terminated” under California law. It was a constructive discharge case, and she claimed that her supervisor had made things so stressful for her that she had to quit. She worked at a credit union. One of the prospective jurors was a woman who had worked at a bank and was on disability leave from the bank because — ta da! — her supervisor had made it so stressful for her to work that she had to quit.

    I moved to strike for cause. The judge overruled by challenge, reasoning that banks and credit unions were fundamentally different. In my head I was playing the clip of John McEnroe screaming at the umpire: “You CANNOT be serious.” But I know why he ruled the way he did. I had 3 more peremptory strikes left and if he gave me a “freebie” it wouldn’t be fair to the plaintiff.

    The article you linked has it exactly right with regard to Batson. Batson is said to stand for the proposition that lawyers cannot discriminate against minorities and women in exercising peremptory strikes. Its actual holding is that lawyers cannot ADMIT to discriminating against minorities and women in exercising peremptory strikes.

    But you get the occasional lawyer who in a fit of candor or ignorance admits to using a peremptory challenges on a class-wide basis. The question as to whether gays or lesbians fit into this category is probably closer (thus assuring that the Ninth Circuit will get it wrong), because sexual orientation seems to be creeping close to quasi-suspect status, like gender. But it’s not there yet. Moreover, I believe that in the Prop 8 case, the U.S. Supreme Court was going to rule that gays and lesbians are NOT a quasi-suspect class. I’ve laid out my reasons for thinking this before, but I cannot think of any other reason for Breyer, Ginsburg and Kagan to have voted that there was standing in Windsor (the DOMA case) but without explanation voted that there wasn’t in the Prop 8 case with Thomas flipping the other direction — and none of them writing a word explaining the switch.

    Ugliness has a ways to go before it achieves any level of scrutiny, and if you just don’t want to be distracted having to look at someone butt ugly, that’s you’re right. In the “tit for tat” (maybe the first word is unfortunate) department, the Iowa Supreme Court ruled that a dentist was within his rights to fire a gorgeous assistant, apparently because (a little reading between the lines here) his wife nagged him into it. Note there was not one word of evidence that either one had behaved unprofessionally. Best, Pat.

  4. Pat,

    First, the only reason I would not want to see peremptory challenges disappear is that “for cause” challenges would multiply exponentially. That would make me work too hard–I am semi-serious.

    Second, the “ugly” reference actually comes from a Scalia dissent on questions like this.

    Third, as you know, an equal protection violation can be shown by (1) a government taking action against an “insular” minority (a protected class) or (2) by a government acting irrationally against anyone whether they be a protected class or a regular Joe. The whole idea of a peremptory challenge is to allow a lawyer to make intuitive judgments and that, almost by definition, cannot be tested by rationality. If that is so, I wonder how any governmental system of peremptory challenges survives rational basis scrutiny of the second kind noted above.

    All the best.


  5. Rich, quite right on all points, as usual. I guess it depends on what version of rational basis scrutiny we mean. There’s the “old” rational basis, which meant that any far-fetched reason would suffice. “I feared that would turn to stone during closing argument” would suffice. But we have this new wonderful invention called “rational basis with bite.” In Romer v. Evans and Lawrence v. Texas we see it on display. I suppose that for ugliness we have “rational basis sans dentures.” Best, Pat.

  6. Pat,

    I read your last line, started laughing hard, and inadvertently (I promise) spat my dentures out! The sad thing is I really do have dentures and they really do fly out at the most inopportune times. See here.

    All the best.


  7. Rich, you should take it as a compliment that I had no idea. I will say that this blog has produced many lines that I have found extremely funny, to the point where I have narrow missed covering my keyboard with various fizzy beverages trying to work their way out my nose. Best, Pat.

  8. Homosexuals (and ‘ugly’ people) do not meet the criteria for a protected class.

    Gays and “uglies” do not have the violent, disturbing history of the blacks, nor been denied the right to vote like the women, nor are they by in large dependent upon others not of their class to protect them, like the incapacitated/handicapped. (Some may argue that) Their membership in these classes is not necessarily permanent. (Although I suppose Michael Jackson wasn’t always white, and RuPaul wasn’t always a woman either) But one thing that they do have is the Vote. If the potential juror wants some constitutional right to not be disqualified from a jury because of their sexual preferences or their “ugliness” (God given or not), they can take that to the legislature. And if the party wants the constitutional right to have homosexuals and ugly people on their jury, they can do the same.


  9. Just a thought, if a state government excluded you from a jury because your name began with the letter S, would that violate the equal protection clause of the 14th Amendment?

    All the best.


  10. If the government stated as a categorical rule that no one with a name beginning in ‘S’ can sit on a jury, there MAY be a problem with arbitrariness. But the government allowing a PARTY to use its strikes to eliminate all jurors after voir dire whose names start with ‘S’ is another story. Parties can be arbitrary, they just can’t discriminate based on protected class qualities.

    Governor Roy Barnes in Georgia has a practice if striking all jurors who are occupied in a profession starting with “P.” I’m not kidding. I see not a thing wrong from a Batan standpoint.

    Thanks for your ear.

  11. My apologies for the anon reply. Haven’t figured out how to work this new-fangled tablet. All fingers and no keyboard.

  12. Sure, I get your point. There is a qualitative difference between an equal protection violation that is built on animus compared with an equal protection violation built only upon irrationality. Hence, one might distinguish the two for purposes of peremptory challenges. I am not so sure though that the law will ultimately come down that way. That is, there is a good chance that peremptory challenges may become extinct.

    All the best.


  13. It may be that I put the wrong set of glasses on, but I don’t see the lack of “protection.” The point of Voir Dire and the peremptory strikes is to discriminate between potential jurors to (hopefully) arrive at an impartial panel of the litigants peers. As far as I know, the only limitation on the use of strikes, besides the number thereof, is the Constitutional limitations found in Batson. So long as the challenge does not touch a protected class quality, I see no issue. I’m assuming by “I’m not sure that the law will ultimately come down that way,” you mean that the penumbra will grow, and the law will extend. To that, I scream “slippery slope!” If I am not mischaracterizing, that seems to be Your Honor’s point in this post, with the “ugly” and “name that starts with ‘S'” spins.

    As for the challenges becoming extinct, I hope not. They were conceived by the English two centuries prior to Columbus sailing. (Although, if we are following English lead, England has abolished peremptory challenges in most of their civil litigation.) As the English still recognize (in criminal cases), the peremptory challenge sends a message to the community that the jury system is fair because the litigants (not the bench and the assembly) chooses the jury. Peremptory challenges allow the litigants to remove those prospective jurors whom they fear are incapable of candor. While misuse of these strikes are obviously the issue in this post, I say: don’t throw out the baby with the bathwater.

    Thanks, again.

  14. I am sorry if you find my explanation insufficient. It is essentially this: If you employ rational basis scrutiny to a governmental system of peremptory challenges, it is almost impossible, if you are intellectually honest, to say that peremptory challenges are rational. They are, almost by definition, raw guesses.

    There is a good deal of academic and judicial talk about dumping peremptory challenges because such a system allows lawyers with half a brain to discriminate. While I don’t share that concern, my point is that even if a lawyer does not intend to discriminate, but he or she is allowed to skew the composition of the jury as a result of what he or she eats for breakfast that morning, an impartial observer would say that such a system is nuts. So, I can construct a pretty strong argument to dump peremptory challenges even when no discriminatory motive exists. That being said, I would not at all be surprised if the Supreme Court outlawed peremptory challenges both because of the concern for discrimination against minorities and because the whole notion of peremptory challenges gives many sane people the willies.

    What is lurking in the background of this discussion is my view that judges want impartial juries. Lawyers don’t. So, after all is said and done, why allow lawyers to act on their biases?

    All the best.


  15. My apologies if I tried your patience. I understand your point, and tend to agree with the practical conclusion that the challenges can be wild guesses based solely on stereotypes. Whether this illogic is unconstitutional is one that I’ll leave to the Courts (or the legislature) to decide.

  16. Pingback: Are gay jurors members of a suspect class? « Hercules and the umpire.

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