# Hernandez v. New York/Concurrence O'Connor

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Justice O'CONNOR, with whom Justice SCALIA joins, concurring in the judgment.
I agree with the plurality that we review for clear error the trial court's finding as to discriminatory intent, and agree with its analysis of this issue. I agree also that the finding of no discriminatory intent was not clearly erroneous in this case. I write separately because I believe that the plurality opinion goes farther than it needs to in assessing the constitutionality of the prosecutor's asserted justification for his peremptory strikes.
Upon resolution of the factfinding questions, this case is straightforward. Hernandez asserts an equal protection violation under the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In order to demonstrate such a violation, Hernandez must prove that the prosecutor intentionally discriminated against Hispanic jurors on the basis of their race. The trial court found that the prosecutor did not have such intent, and that determination is not clearly erroneous. Hernandez has failed to meet his burden.
An unwavering line of cases from this Court holds that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent; the disproportionate effects of state action are not sufficient to establish such a violation. In Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976), we explained that "our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutionalsolely because it has a racially disproportionate impact." "[A] defendant who alleges an equal protection violation has the burden of proving 'the existence of purposeful discrimination.' " McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987). See also Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265, 97 S.Ct. 555, 562-563, 50 L.Ed.2d 450 (1977); Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 198, 93 S.Ct. 2686, 2689, 37 L.Ed.2d 548 (1973); Wright v. Rockefeller, 376 U.S. 52, 56-57, 84 S.Ct. 603, 605-606, 11 L.Ed.2d 512 (1964).
We have recognized the discriminatory intent requirement explicitly in the context of jury selection. Thus, "[a] purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination." Akins v. Texas, 325 U.S. 398, 403-404, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692 (1945). See also Alexander v. Louisiana, 405 U.S. 625, 628-629, 92 S.Ct. 1221, 1224-1225, 31 L.Ed.2d 536 (1972); Whitus v. Georgia, 385 U.S. 545, 549-550, 87 S.Ct. 643, 646-647, 17 L.Ed.2d 599 (1967); Norris v. Alabama, 294 U.S. 587, 589, 55 S.Ct. 579, 580, 79 L.Ed. 1074 (1935); Neal v. Delaware, 103 U.S. 370, 394, 26 L.Ed. 567 (1881). The point was made clearly in Batson itself: "As in any equal protection case, the 'burden is, of course,' on the defendant who alleges discriminatory selection . . . 'to prove the existence of purposeful discrimination.' " 476 U.S., at 93, 106 S.Ct., at 1721, quoting Whitus, supra, 385 U.S., at 550, 87 S.Ct., at 646.
Consistent with our established equal protection jurisprudence, a peremptory strike will constitute a Batson violation only if the prosecutor struck a juror because of the juror's race. "[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that [Hispanic] jurors as a group will be unable impartially to consider the State's case." Batson, 476 U.S., at 89, 106 S.Ct., at 1719 (emphasis added). See also Powers v. Ohio, 499 U.S. ----, ----, 111 S.Ct. 1364, 1370, 112 L.Ed.2d 411 (1991) ("the Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race"). Batson's requirement of a race-neutral explanation means an explanation other than race.
In Washington v. Davis, supra, we outlined the dangers of a rule that would allow an equal protection violation on a finding of mere disproportionate effect. Such a rule would give rise to an unending stream of constitutional challenges:
"A rule that [state action] designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." Id., 426 U.S., at 248, 96 S.Ct., at 2051.
In the same way, a rule that disproportionate effect might be sufficient for an equal protection violation in the use of peremptory strikes runs the serious risk of turning voir dire into a full-blown disparate impact trial, with statistical evidence and expert testimony on the discriminatory effect of any particular nonracial classification. In addition to creating unacceptable delays in the trial process, such a practice would be antithetical to the nature and purpose of the peremptory challenge. Absent intentional discrimination violative of the Equal Protection Clause, parties should be free to exercise their peremptory strikes for any reason, or no reason at all. The peremptory challenge is "as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose." Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892) (internal quotations omitted).
In this case, the prosecutor's asserted justification for striking certain Hispanic jurors was his uncertainty about the jurors' ability to accept the official translation of trial testimony. App. 3-4. If this truly was the purpose of the strikes, they were not strikes because of race, and therefore did not violate the Equal Protection Clause under Batson. They may have acted like strikes based on race, but they were not based on race. No matter how closely tied or significantly correlated to race the explanation for a peremptory strike may be, the strike does not implicate the Equal Protection Clause unless it is based on race. That is the distinction between disproportionate effect, which is not sufficient to constitute an equal protection violation, and intentional discrimination, which is.
Disproportionate effect may, of course, constitute evidence of intentional discrimination. The trial court may, because of such effect, disbelieve the prosecutor and find that the asserted justification is merely a pretext for intentional race-based discrimination. See Batson, supra, 476 U.S., at 93, 106 S.Ct., at 1721. But if, as in this case, the trial court believes the prosecutor's nonracial justification, and that finding is not clearly erroneous, that is the end of the matter. Batson does not require that a prosecutor justify a jury strike at the level of a for-cause challenge. It also does not require that the justification be unrelated to race. Batson requires only that the prosecutor's reason for striking a juror not be the juror's race.
Justice BLACKMUN, dissenting.
I dissent, essentially for the reasons stated by Justice STEVENS in Part II of his opinion, post.
Justice STEVENS, with whom Justice MARSHALL joins, dissenting.
A violation of the Equal Protection Clause requires what our cases characterize as proof of "discriminatory purpose." By definition, however, a prima facie case is one that is established by the requisite proof of invidious intent. Unless the prosecutor comes forward with an explanation for his peremptories that is sufficient to rebut that prima facie case, no additional evidence of racial animus is required to establish an equal protection violation. In my opinion, the Court therefore errs when it concludes that a defendant's Batson challenge fails whenever the prosecutor advances a nonpretextual justification that is not facially discriminatory.
* In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), we held that "a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination" sufficient to satisfy the defendant's burden of proving an equal protection violation. Id., at 97, 106 S.Ct., at 1723. "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation." Ibid. If the prosecutor offers no explanation, the defendant has succeeded in establishing an equal protection violation based on the evidence of invidious intent that gave rise to the prima facie case. If the prosecutor seeks to dispel the inference of discriminatory intent, in order to succeed his explanation "need not rise to the level justifying exercise of a challenge for cause." Ibid. However, the prosecutor's justification must identify " 'legitimate reasons' " that are "related to the particular case to be tried" and sufficiently persuasive to "rebu[t] a defendant's prima facie case." Batson, 476 U.S., at 98, and n. 20, 106 S.Ct., at 1724, and n. 20.
An avowed justification that has a significant disproportionate impact will rarely qualify as a legitimate, race-neutral reason sufficient to rebut the prima facie case because disparate impact is itself evidence of discriminatory purpose. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-266, 97 S.Ct. 555, 563-564, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). An explanation based on a concern that can easily be accommodated by means less drastic than excluding the challenged venireperson from the petit jury will also generally not qualify as a legitimate reason because it is not in fact "related to the particular case to be tried." Batson, 476 U.S., at 98, 106 S.Ct., at 1724; see Albermarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975) (availability of nondiscriminatory alternative is evidence of discriminatory motive). Cf. also Richmond v. J.A. Croson Co., 488 U.S. 469, 507, 109 S.Ct. 706, 728, 102 L.Ed.2d 854 (1989) (State cannot make race-based distinctions if there are equally effective nondiscriminatory alternatives). And, as in any other equal protection challenge to a government classification, a justification that is frivolous or illegitimate should not suffice to rebut the prima facie case. See, e.g., Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); id., at 452, 105 S.Ct., at 3260 (STEVENS, J., concurring); Western & Southern Life Insurance Co. v. State Board of Equalization of California, 451 U.S. 648, 677, 101 S.Ct. 2070, 2087, 68 L.Ed.2d 514 (1981) (STEVENS, J., dissenting).
If any explanation, no matter how insubstantial and no matter how great its disparate impact, could rebut a prima facie inference of discrimination provided only that the explanation itself was not facially discriminatory, "the Equal Protection Clause 'would be but a vain and illusory requirement.' " Batson, 476 U.S., at 98, 106 S.Ct., at 1724 (quoting Norris v. Alabama, 294 U.S. 587, 598, 55 S.Ct. 579, 584, 79 L.Ed. 1074 (1935)). The Court mistakenly believes that it is compelled to reach this result because an equal protection violation requires discriminatory purpose. See ante, at 359-360, 364. The Court overlooks, however, the fact that the "discriminatory purpose" which characterizes violations of the Equal Protection Clause can sometimes be established by objective evidence that is consistent with a decisionmaker's honest belief that his motive was entirely benign. "Frequently the most probative evidence of intent will be objective evidence of what actually happened," Washington v. Davis, 426 U.S., at 253, 96 S.Ct., at 2054 (STEVENS, J., concurring), including evidence of disparate impact. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 105, 5 L.Ed.2d 110 (1960); Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967); Turner v. Fouche, 396 U.S. 346, 359, 90 S.Ct. 532, 539, 24 L.Ed.2d 567 (1970). The line between discriminatory purpose and discriminatory impact is neither as bright nor as critical as the Court appears to believe.
The Court therefore errs in focusing the entire inquiry on the subjective state of mind of the prosecutor. In jury selection challenges, the requisite invidious intent is established once the defendant makes out a prima facie case. No additional evidence of this intent is necessary unless the explanation provided by the prosecutor is sufficiently powerful to rebut the prima facie proof of discriminatory purpose. By requiring that the prosecutor's explanation itself provide additional, direct evidence of discriminatory motive, the Court has imposed on the defendant the added requirement that he generate evidence of the prosecutor's actual subjective intent to discriminate. Neither Batson nor our other equal protection holdings demand such a heightened quantum of proof.
Applying the principles outlined above to the facts of this case, I would reject the prosecutor's explanation without reaching the question whether the explanation was pretextual. Neither the Court nor respondent disputes that petitioner made out a prima facie case. See ante, at 359. Even assuming the prosecutor's explanation in rebuttal was advanced in good faith, the justification proffered was insufficient to dispel the existing inference of racial animus.
The prosecutor's explanation was insufficient for three reasons. First, the justification would inevitably result in a disproportionate disqualification of Spanish-speaking venirepersons. An explanation that is "race-neutral" on its face is nonetheless unacceptable if it is merely a proxy for a discriminatory practice. Second, the prosecutor's concern could easily have been accommodated by less drastic means. As is the practice in many jurisdictions, the jury could have been instructed that the official translation alone is evidence; bilingual jurors could have been instructed to bring to the attention of the judge any disagreements they might have with the translation so that any disputes could be resolved by the court. See, e.g., United States v. Perez, 658 F.2d 654, 662-663 (CA9 1981). Third, if the prosecutor's concern was valid and substantiated by the record, it would have supported a challenge for cause. The fact that the prosecutor did not make any such challenge, see App. 9, should disqualify him from advancing the concern as a justification for a peremptory challenge.
Each of these reasons considered alone might not render insufficient the prosecutor's facially neutral explanation. In combination, however, they persuade me that his explanation should have been rejected as a matter of law. Accordingly, I respectfully dissent.

## Notes

* ↑ In Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (concurring opinion), I noted that the term "purposeful discrimination" has been used in many different contexts.
* ↑ An even more effective solution would be to employ a translator, who is the only person who hears the witness' words and who simultaneously translates them into English, thus permitting the jury to hear only the official translation.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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