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

SOTOMAYOR, 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. 

JUSTICE SOTOMAYOR, with whom JUSTICE JACKSON joins,

dissenting from the denial of certiorari. 

“The Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Flowers v. Mississippi, 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 individual views. “More powerful than these bare statistics, 

however, are side-by-side comparisons of [jurors with certain 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 proffered reason for striking a [female] panelist applies just as 

well to an otherwise-similar [male] who is permitted to 

serve, that is evidence tending to prove purposeful discrimination.” Ibid. A prosecutor may claim that he is striking

a woman based on her hesitation to impose the death penalty. 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 stereotypes about women rather than objective facts. 

In this capital case, prosecutors used 13 of their 15 peremptory strikes on women. They offered only one justification 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-side 
 

 

2 COMPTON v. TEXAS 

SOTOMAYOR, J., dissenting 

comparison. Instead, it tested the prosecution’s justification in the aggregate, looking to the women’s views on capital punishment as a group instead of individually. That 

legal error hid the best indication of discriminatory purpose. Under a side-by-side comparison, 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 women 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 focused 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 challenge.

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-
 

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

SOTOMAYOR, J., dissenting 

emptory strikes under J. E. B. Compton identified four female potential jurors struck by the State for whom the record allegedly did not support the State’s rationale. He identified three male potential jurors who expressed views on 

the death penalty as or less favorable than the struck 

women. The State defended its 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 determined 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, hesitation, or opposition to imposing the death penalty than those 

venirepersons the State chose not 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 women 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 comparisons 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]ompar[e] [the male] venirepersons to the female venirepersons 

struck by the State,” id., at 712, the TCCA failed to examine 

individually the four female potential jurors identified by 
 

 

 

 

4 COMPTON v. TEXAS 

SOTOMAYOR, 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 rehabilitation, religious redemption, and/or the fact that life 

without parole forces offenders to live with the consequences 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 background and upbringing as relevant factors in assessing 

whether the death penalty versus life without parole

was appropriate.” Id., at 711–712 (emphasis added). 

—————— 1The TCCA knew how to conduct a side-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 woman, and one Hispanic man. The 

resulting 12-person jury included 1 Hispanic man and 11 white people.

The TCCA conducted side-by-side comparisons 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. 
 

Cite as: 601 U. S. ____ (2024) 5 

SOTOMAYOR, J., dissenting 

The TCCA held that “[c]omparatively speaking, the venirepersons—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 lifewithout-parole option and mitigating evidence than did the 

female venirepersons described above.” Id., at 712 (emphasis added). It distinguished the three male comparators not 

struck by the State as “overall favorable for the State’s preferred punishment.” Ibid. (emphasis added). It rejected 

Compton’s J. E. B. claim and affirmed the trial court’s judgment of conviction and sentence of death. 

II 

This Court has repeatedly emphasized that the “Constitution 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-sponsored group stereotypes,” ibid. 

These challenges guard against prosecutorial bias: not only

the perception that a prospective juror might favor a defendant because they share a protected characteristic, but

that a prospective juror might hold a particular view because of a stereotype based on race or gender. See id., at 

141–142; Batson, 476 U. S., at 104–105 (Marshall, J., concurring).

The third step of this Court’s test in particular protects

against impermissible stereotypes by checking the State’s 

proffered reason against its other decisions. “If a prosecutor’s proffered reason for striking a [female] panelist applies 

just as well to an otherwise-similar [male] who is permitted 
 

6 COMPTON v. TEXAS 

SOTOMAYOR, J., dissenting 

to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Dretke, 

545 U. S., at 241. 

Here, the TCCA failed to conduct that important side-byside comparison of struck female 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, reasoning that “most” or “nearly all” struck women expressed

views less favorable toward the death penalty than the men

permitted to serve. That analysis directly contradicts the

principle that striking even one prospective juror for a discriminatory 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 “concern[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 questioned about mitigation during voir dire, she said that reading the mitigation special issues made her angry, because

“some people use just whatever—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-
 

 

 

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SOTOMAYOR, J., dissenting 

alty. That prospective juror, P. K., wrote that he was opposed 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 necessary in modern civilization” and embraced the idea that

“[e]xecution of criminals is a disgrace 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 true of many female potential 

jurors to another female potential 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 female 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. 

—————— 2 In the State’s brief before the TCCA, it emphasized that V. P. “was

struck by the State and the defense.” Brief for Appellee in No. AP– 

77,087, p. 47. A strike by the defense, however, is irrelevant to a Batson 

or J. E. B. inquiry, which focuses “solely on evidence concerning the prosecutor’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 the question whether prosecutors’ shuffles 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 challenges against the three other struck

women Compton identified. 
 

 

 

8 COMPTON v. TEXAS 

SOTOMAYOR, J., dissenting 

* * * 

“America’s trial judges operate at the front lines of American 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 prosecutor’s proffered reason for a peremptory 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 stereotypes. I would summarily vacate the decision below and 

remand for the TCCA to correct its legally erroneous analysis with respect to the J. E. B.-challenged jurors. I respectfully dissent.