1 Cite as: 601 U. S. ____ (2024)

S OTOMAYOR , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

DILLION GAGE COMPTON v. TEXAS

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS
No. 23–5682. Decided April 15, 2024
The petition for a writ of certiorari is denied.
J USTICE S OTOMAYOR , with whom J USTICE J ACKSON joins, dissenting from the denial of certiorari.
“The Constitution forbids s triking even a single prospec

tive juror for a discriminatory purpose.” Flowers v. Missis

sippi , 588 U. S. 284, 303 (2019). A pattern of strikes against jurors with the same race or sex suggests that a prosecutor is striking jurors based on impermissible stereotypes about those protected characteristics rather than the juror’s indi

vidual views. “More powerful than these bare statistics, however, are side-by-side comparisons of [jurors with cer

tain protected characteristics] who were struck and [jurors without those characteristics] allowed to serve.” Miller-El

v. Dretke , 545 U. S. 231, 241 (2005). “If a prosecutor’s prof

fered reason for striking a [fe male] panelist applies just as well to an otherwise-similar [male] who is permitted to serve, that is evidence tending to prove purposeful discrim

ination.” Ibid. A prosecutor may claim that he is striking a woman based on her hesitation to impose the death pen

alty. When the prosecutor fails to strike a man who has expressed even greater hesitancy, however, it indicates that the woman was struck based on unconstitutional stereo

types about women rather than objective facts. In this capital case, prosecutors used 13 of their 15 per

emptory strikes on women. They offered only one justifica

tion in each case: the woman’s views on the death penalty. In reviewing the challenged jurors, the Texas Court of Criminal Appeals (TCCA) failed to conduct a side-by-side2 COMPTON v. TEXAS

S OTOMAYOR , J., dissenting comparison. Instead, it test ed the prosecution’s justifica

tion in the aggregate, looking to the women’s views on cap

ital punishment as a group instead of individually. That legal error hid the best indication of discriminatory pur

pose. Under a side-by-side comp arison, it is clear that at least one woman struck by the State had more favorable views on the death penalty than at least one man the State did not strike. I would summarily vacate the decision below and remand for the TCCA to apply the proper comparative analysis.

I A Dillion Gage Compton was charged with capital murder for the death of a prison guard. After voir dire , there were 42 qualified venirepersons for a 12-person jury. Of those 42 potential jurors, 23 were wome n and 19 were men, making the initial pool 55% women. The State used 13 of its 15 strikes on women. After both sides submitted their strikes, the 12-person jury consisted of only four women and eight men, or 33% women. Compton challenged the State’s peremptory strikes based

on J. E. B. v. Alabama ex rel. T. B. , 511 U. S. 127 (1994), arguing that the State had discriminated based on gender. In response, the prosecutor explained he was “certainly fo

cused almost single-han[dedly] on the issue of the death penalty.” 21 Tr. 16 (Sept. 25, 2018). The defense objected that the “gender basis has not been explained to the Court sufficiently.” Id ., at 18. The trial court denied the chal

lenge. After trial, the jury convicted Compton of capital murder. The trial court sentenced him to death.

B On appeal, Compton again challenged the State’s per

-3 Cite as: 601 U. S. ____ (2024)

S OTOMAYOR , J., dissenting emptory strikes under J. E. B. Compton identified four fe

male potential jurors struck by the State for whom the rec

ord allegedly did not support the State’s rationale. He iden

tified three male potential jurors who expressed views on the death penalty as or less favorable than the struck women. The State defended it s views-on-the-death-penalty rationale for each struck woman but never compared their views with those of the men it did not strike. Thus, it did not respond to Compton’s comparative argument that the State had retained men with similar views on the death penalty to the struck women. In evaluating the J. E. B. challenge, the TCCA deter

mined that Compton had made a prima facie showing of bias under the first step of Batson v. Kentucky , 476 U. S. 79 (1986). Under the second step, the court reasoned that the State had provided a gender-neutral reason for the strikes: that “each individual . . . expressed more concern, hesita

tion, or opposition to imposing the death penalty than those venirepersons the State chose no t to strike.” 666 S. W. 3d 685, 711 (Tex. Crim. App. 2023). In examining whether that reason was pretextual under the third step, the TCCA found the “statistical evidence . . . concerning.” Ibid. It noted that the State’s use of 13 of 15 peremptory strikes against wo men combined with “the fact that only four women made it onto the jury despite the panel having more women than men does raise concerns.” Ibid. The court then purported to examine “[s]ide-by-side com

parisons of stricken and accepted venirepersons.” Ibid. It declined to “engag[e] in an exhaustive comparative analysis of each prospective juror.” Ibid. Despite claiming to “[c]om

par[e] [the male] venireperson s to the female venirepersons struck by the State,” id ., at 712, the TCCA failed to examine individually the four female potential jurors identified by4 COMPTON v. TEXAS

S OTOMAYOR , J., dissenting Compton as having favorable views on the death penalty. 1 Instead, it conducted its analysis entirely in the aggregate.It concluded that “the State was, in fact, focused on deathpenalty issues and struck most of the female venirepersons based on their responses” that indicated reservations about the death penalty. Id ., at 711 (emphasis added). The TCCA reasoned by bullet point that:

 “ Most of the State-stricken female venirepersons rated themselves a three or four on a scale of one-to-six when asked about their support for the death penalty;

 “ Most said they were generally opposed to the death penalty except in a few cases, or that they were neutral on the appropriateness of the death penalty;

 “ Nearly all disagreed that the death penalty ‘gives the criminal what they deserve;’

 “ Nearly all expressed some favorable views about the option of life without parole, the possibility of rehabili

tation, religious redemption, and/or the fact that life without parole forces offender s to live with the conse

quences of their crimes;

 “ Nearly all agreed that life without parole could be an adequate punishment for capital murder;

 “ Some, but not all , emphasized a defendant’s back

ground and upbringing as relevant factors in assessing whether the death penalty versus life without parole was appropriate.” Id ., at 711–712 (emphasis added).

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1 The TCCA knew how to conduct a si de-by-side comparison. Compton also challenged three strikes based on Batson v. Kentucky , 476 U. S. 79 (1986), arguing that the State discriminated based on race. The State struck one Black man, one Black wo man, and one Hispanic man. The resulting 12-person jury included 1 Hispanic man and 11 white people. The TCCA conducted side-by-side comp arisons of the struck jurors and three unstruck white male comparators. See 666 S. W. 3d, at 700–710. It inexplicably failed to do so for the J. E. B. challenge, which required equally scrupulous consideration.5 Cite as: 601 U. S. ____ (2024)

S OTOMAYOR , J., dissenting The TCCA held that “[c]omparatively speaking, the veni

repersons—men and women—who were not struck by the State generally expressed more favorable views towards the death penalty and less favorable views towards the life

without-parole option and mitigating evidence than did the female venirepersons described above.” Id ., at 712 (empha

sis added). It distinguished the three male comparators not struck by the State as “ overall favorable for the State’s pre

ferred punishment.” Ibid. (emphasis added). It rejected Compton’s J. E. B. claim and affirmed the trial court’s judg

ment of conviction and sentence of death.

II This Court has repeatedly emphasized that the “Consti

tution forbids striking even a single prospective juror for a discriminatory purpose.” Flowers , 588 U. S., at 303; Foster

v. Chatman , 578 U. S. 488, 499 (2016); Snyder v. Louisiana

, 552 U. S. 472, 478 (2008). Challenges to jury selection based on unconstitutional proxies like race, see Batson , 476 U. S., at 96, or gender, see J. E. B. , 511 U. S., at 128, exist to protect the equal protection rights of “potential jurors, as well as [defendants], . . . to jury selection procedures that are free from state-sponso red group stereotypes,” ibid. These challenges guard against prosecutorial bias: not only the perception that a prospecti ve juror might favor a de

fendant because they share a protected characteristic, but that a prospective juror might hold a particular view be

cause of a stereotype based on race or gender. See id ., at 141–142; Batson , 476 U. S., at 104–105 (Marshall, J., con

curring). The third step of this Court’s test in particular protects against impermissible stereotyp es by checking the State’s proffered reason against its other decisions. “If a prosecu

tor’s proffered reason for stri king a [female] panelist applies just as well to an otherwise-similar [male] who is permitted6 COMPTON v. TEXAS

S OTOMAYOR , J., dissenting to serve, that is evidence tending to prove purposeful dis

crimination to be considered at Batson ’s third step.” Dretke

, 545 U. S., at 241. Here, the TCCA failed to cond uct that important side-by

side comparison of struck fema le jurors against male jurors permitted to serve. Before the trial court, the TCCA, and this Court, the State offered only one reason for striking these women: their hesitations about imposing the death penalty. If a struck female panelist’s views on the death penalty were more favorable than an otherwise-similar man permitted to serve, that would be strong evidence of invidious discrimination under Batson ’s third step. Yet the TCCA evaluated the strikes only in the aggregate, reason

ing that “most” or “nearly all” struck women expressed views less favorable toward the death penalty than the men permitted to serve. That anal ysis directly contradicts the principle that striking even one prospective juror for a dis

criminatory reason violates the Constitution. Considering only one example in this record suggests that the prosecutor’s proffered reason was pretextual. V. P., a female juror struck by the prosecutors, strongly supported capital punishment. V. P. rated herself a five out of six in terms of her support for the death penalty. She endorsed punishment as more important than rehabilitation and agreed that capital punishment was “absolutely justified” and “just and necessary.” 14 Record 5912. She was “con

cern[ed]” about life in prison instead of the death penalty because sometimes the prisoner could “continu[e] to do harm to others while in prison.” Id ., at 5914. When ques

tioned about mitigation during voir dire , she said that read

ing the mitigation special issues made her angry, because “some people use just whatev er—you know, they blame—I don’t like the blame game.” 17 Tr. 180 (Sept. 17, 2018). In contrast, the State did not strike a male prospective juror who expressed less favorable views of the death pen

-7 Cite as: 601 U. S. ____ (2024)

S OTOMAYOR , J., dissenting alty. That prospective juror, P. K., wrote that he was op

posed to the death penalty except in some cases, and that he would be “very conflicted” about returning a verdict of death, underlining “very” for emphasis. 12 Record 5252, 5256. He agreed that “[c]apital punishment is not neces

sary in modern civilization” and embraced the idea that “[e]xecution of criminals is a di sgrace to civilized society.” Id ., at 5257. He thought that Texas used the death penalty “too often.” Id ., at 5261. This case illustrates the hazards of analysis by aggregate. The TCCA may have been right that most of the struck women expressed less favorable views on the death penalty than most of the men permitted to serve. When the State, however, extends a reason tru e of many female potential jurors to another female pote ntial juror not based on what she says, but based on the fact that she is a woman, it crosses the line into invidious discrimination. Just because most female potential jurors had hesitations about the death penalty does not mean that V. P. did. The State never offered any justification other than fe

male potential jurors’ views on the death penalty for its strikes. 2 The TCCA erred when it allowed the views of other female prospective jurors to infect its assessment of the State’s justification for V. P.’s strike.

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2 In the State’s brief before the TCCA, it emphasized that V. P. “was struck by the State and the defens e.” Brief for Appellee in No. AP– 77,087, p. 47. A strike by the defe nse, however, is irrelevant to a Batson

or J. E. B. inquiry, which focuses “solely on evidence concerning the pros

ecutor’s exercise of peremptory challenges.” Batson , 476 U. S., at 96; see also Miller-El v. Dretke , 545 U. S. 231, 255, n. 14 (2005) (“[Defendant’s] shuffles are flatly irrelevant to th e question whether prosecutors’ shuf

fles revealed a desire to exclude blacks”). Indeed, it makes sense that Compton sought to exclude a juror like V. P. who expressed such prodeath penalty views. Moreover, this evidence of potential bias against V. P. could have informed the challe nges against the three other struck women Compton identified.8 COMPTON v. TEXAS

S OTOMAYOR , J., dissenting

* * * “America’s trial judges operate at the front lines of Amer

ican justice.” Flowers , 588 U. S., at 302. They bear “the primary responsibility to enforce Batson and prevent . . . discrimination from seeping into the jury selection process.” Ibid. That responsibility requires scrutinizing the prosecu

tor’s proffered reason for a pe remptory strike by comparing any struck juror challenged by the defense with a retained juror who does not share the same protected characteristic. When a court conducts a Batson or J. E. B. inquiry not based on individual comparisons but by aggregate, it too runs the risk of generalizing based on impermissible stere

otypes. I would summarily vacate the decision below and remand for the TCCA to correct its legally erroneous anal

ysis with respect to the J. E. B. -challenged jurors. I respect

fully dissent.