(Slip Opinion) OCTOBER TERM, 2009 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BERGHUIS, WARDEN v. SMITH 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT 

No. 08–1402. Argued January 20, 2010—Decided March 30, 2010 

Criminal defendants have a Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community. See 

Taylor v. Louisiana, 419 U. S. 522. To establish a prima facie violation of the fair-cross-section requirement, a defendant must prove

that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic exclusion” in 

the jury-selection process accounts for the underrepresentation. 

Duren v. Missouri, 439 U. S. 357, 364. 

 At voir dire in the Kent County Circuit Court trial of respondent 

Smith, an African-American, the venire panel included between 60

and 100 individuals, only 3 of whom, at most, were African-American. 

At that time, African-Americans constituted 7.28% of the County’s 

jury-eligible population, and 6% of the pool from which potential jurors were drawn. The court rejected Smith’s objection to the panel’s

racial composition, an all-white jury convicted him of second-degree 

murder and felony firearm possession, and the court sentenced him 

to life in prison with the possibility of parole. 

On order of the Michigan Court of Appeals, the trial court conducted an evidentiary hearing on Smith’s fair-cross-section claim.

The evidence at the hearing showed, inter alia, that under the jurorassignment order in effect when Smith’s jury was empaneled, the

County assigned prospective jurors first to local district courts, and,

only after filling local needs, made remaining persons available to the

countywide Circuit Court, which heard felony cases like Smith’s.

Smith calls this procedure “siphoning.” The month after Smith’s voir 

dire, however, the County reversed course and adopted a CircuitCourt-first assignment order. It did so based on the belief that the 

district courts took most of the minority jurors, leaving the Circuit 
2 BERGHUIS v. SMITH 

Syllabus 

Court with a jury pool that did not represent the entire County. The 

trial court noted two means of measuring the underrepresentation of

African-Americans on Circuit Court venires. First, the court described the “absolute disparity” test, under which the percentage of

African-Americans in the jury pool (6%) is subtracted from the percentage of African-Americans in the local, jury-eligible population

(7.28%). According to this measure, African-Americans were underrepresented by 1.28%. Next, the court set out the “comparative disparity” test, under which the absolute disparity (1.28%) is divided by

the percentage of African-Americans in the jury-eligible population

(7.28%). The quotient (18%) indicated that, on average, AfricanAmericans were 18% less likely, when compared to the overall juryeligible population, to be on the jury-service list. In the 11 months 

after Kent County discontinued the district-court-first assignment

policy, the comparative disparity, on average, dropped from 18% to

15.1%. The hearing convinced the trial court that African-Americans 

were underrepresented on Circuit Court venires. But Smith’s evidence, the trial court held, was insufficient to prove that the jurorassignment order, or any other part of the jury-selection process, had

systematically excluded African-Americans. The court therefore rejected Smith’s fair-cross-section claim.

The state intermediate appellate court reversed and ordered a new

trial with jurors selected under the Circuit-Court-first assignment

order. Reversing in turn, the Michigan Supreme Court concluded 

that Smith had not established a prima facie Sixth Amendment violation. This Court, the state High Court observed, has specified no 

preferred method for measuring whether representation of a distinctive group in the jury pool is fair and reasonable. The court noted 

that lower federal courts had applied three tests: the absolute and

comparative disparity tests and a standard deviation test. Adopting

a case-by-case approach allowing consideration of all three means of

measuring underrepresentation, the court found that Smith had 

failed to establish a legally significant disparity under any measurement. Nevertheless giving Smith the benefit of the doubt on underrepresentation, the court determined that he had not shown systematic exclusion. 

Smith then filed a federal habeas petition. The Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA) prohibits federal habeas relief unless the state court’s adjudication “resulted in a decision

that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court 

of the United States,” 28 U. S. C. §2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in 

light of the evidence presented in the State court proceeding,” 
Cite as: 559 U. S. ____ (2010) 3 

Syllabus 

§2254(d)(2). Finding no infirmity in the Michigan Supreme Court’s 

decision when assessed under AEDPA’s standards, the District Court 

dismissed Smith’s petition. The Sixth Circuit reversed. The Court of 

Appeals ruled, first, that courts should use the comparative disparity

test to measure underrepresentation where, as here, the allegedly excluded group is small. The court then held that Smith’s comparative 

disparity statistics demonstrated that African-Americans’ representation in County Circuit Court venires was unfair and unreasonable.

It next stated that Smith had shown systematic exclusion. In accord 

with the Michigan intermediate appellate court, the Sixth Circuit believed that the district-court-first assignment order significantly reduced the number of African-Americans available for Circuit Court 

venires. Smith was entitled to relief, the Sixth Circuit concluded, because no important state interest supported the district-court-first allocation system. 

Held: The Sixth Circuit erred in ruling that the Michigan Supreme 

Court’s decision “involv[ed] an unreasonable application o[f] clearly 

established Federal law,” §2254(d)(1). Duren hardly establishes—no 

less “clearly” so—that Smith was denied his Sixth Amendment right 

to an impartial jury drawn from a fair cross section of the community. Pp. 10–16. 

(a) The Duren defendant readily met all three parts of the Court’s 

prima facie test when he complained of the dearth of women in a 

county’s jury pool. First, he showed that women in the county were

both “numerous and distinct from men.” 439 U. S., at 364. Second, 

to establish underrepresentation, he proved that women were 54% of

the jury-eligible population, but accounted for only 26.7% of those

summoned for jury service, and only 14.5% of those on the postsummons weekly venires from which jurors were drawn. Id., at 364–366. 

Finally, to show the “systematic” cause of the underrepresentation, 

he pointed to Missouri’s law permitting any woman to opt out of jury

service and to the manner in which the county administered that 

law. This Court noted that “appropriately tailored” hardship exemptions would likely survive a fair-cross-section challenge if justified by

an important state interest, id., at 370, but concluded that no such 

interest could justify the exemption for each and every woman, id., at 

369–370. Pp. 10–11. 

(b) Neither Duren nor any other decision of this Court specifies the

method or test courts must use to measure underrepresentation.

Each of the three methods employed or identified by the courts below—absolute disparity, comparative disparity, and standard deviation—is imperfect. Absolute disparity and comparative disparity

measurements can be misleading where, as here, members of the distinctive group compose only a small percentage of the community’s 
4 BERGHUIS v. SMITH 

Syllabus 

jury-eligible population. And it appears that no court has relied exclusively on a standard deviation analysis. Even absent AEDPA’s 

constraint, this Court would have no cause to take sides here on the 

appropriate method or methods for measuring underrepresentation.

Although the Michigan Supreme Court concluded that Smith’s statistical evidence failed to establish a legally significant disparity under 

either the absolute or comparative disparity tests, the court nevertheless gave Smith the benefit of the doubt on underrepresentation in

order to reach the issue ultimately dispositive in Duren: To the extent 

underrepresentation existed, was it due to “systematic exclusion”?

See Duren, 439 U. S., at 364. Pp. 11–13.

(c) Smith’s evidence gave the Michigan Supreme Court little reason

to conclude that the district-court-first assignment order had any 

significant effect on the representation of African-Americans on Circuit Court venires. Although the record established that some 

County officials believed that the assignment order created racial

disparities, and the County reversed the order in response, the belief

was not substantiated by Smith’s evidence. He introduced no evidence that African-Americans were underrepresented on the Circuit 

Court’s venires in significantly higher percentages than on the District Court for Grand Rapids, which had the County’s largest AfricanAmerican population. He did not address whether Grand Rapids had 

more need for jurors per capita than any other district in Kent 

County. And he did not compare the African-American representation levels on Circuit Court venires with those on the Federal District 

Court venires for the same region. See Duren, 439 U. S., at 367, 

n. 25. Smith’s best evidence of systematic exclusion was the decline 

in comparative underrepresentation, from 18 to 15.1%, after Kent

County reversed its assignment order. But that evidence indicated 

no large change and was, in any event, insufficient to prove that the 

original assignment order had a significantly adverse impact on the

representation of African-Americans on Circuit Court venires. Pp.

13–14. 

(d) In addition to renewing his “siphoning” argument, Smith urges

that a laundry list of factors—e.g., the County’s practice of excusing

prospective jurors without adequate proof of alleged hardship, and

the refusal of County police to enforce orders for prospective jurors to 

appear—combined to reduce systematically the number of AfricanAmericans appearing on jury lists. No “clearly established” precedent of this Court supports Smith’s claim. Smith urges that one sentence in Duren, 439 U. S., at 368–369, places the burden of proving

causation on the State. But Smith clipped that sentence from its context: The sentence does not concern the demonstration of a prima face

case; instead, it speaks to what the State might show to rebut the de-
Cite as: 559 U. S. ____ (2010) 5 

Syllabus 

fendant’s prima facie case. The Michigan Supreme Court was therefore far from “unreasonable,” §2254(d)(1), in concluding that Duren 

first and foremost required Smith himself to show that the underrepresentation complained of was due to systematic exclusion. This 

Court, furthermore, has never “clearly established” that juryselection-process features of the kind on Smith’s list can give rise to a 

fair-cross-section claim. Rather, the Taylor Court “recognized broad

discretion in the States” to “prescribe relevant qualifications for their

jurors and to provide reasonable exemptions.” 419 U. S., at 537–538. 

And in Duren, the Court understood that hardship exemptions resembling those Smith assails might well “survive a fair-cross-section

challenge.” 439 U. S., at 370. Pp. 14–16. 

543 F. 3d 326, reversed and remanded. 

GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, 

J., filed a concurring opinion. 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 08–1402 

MARY BERGHUIS, WARDEN, PETITIONER v.

DIAPOLIS SMITH 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT

[March 30, 2010] 

JUSTICE GINSBURG delivered the opinion of the Court. 

The Sixth Amendment secures to criminal defendants 

the right to be tried by an impartial jury drawn from

sources reflecting a fair cross section of the community. 

See Taylor v. Louisiana, 419 U. S. 522 (1975). The question presented in this case is whether that right was accorded to respondent Diapolis Smith, an African-American 

convicted of second-degree murder by an all-white jury in 

Kent County, Michigan in 1993. At the time of Smith’s 

trial, African-Americans constituted 7.28% of Kent 

County’s jury-eligible population, and 6% of the pool from

which potential jurors were drawn.

In Duren v. Missouri, 439 U. S. 357 (1979), this Court 

described three showings a criminal defendant must make

to establish a prima facie violation of the Sixth Amendment’s fair-cross-section requirement. He or she must 

show: “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected 

is not fair and reasonable in relation to the number of 

such persons in the community; and (3) that this under-
2 BERGHUIS v. SMITH 

Opinion of the Court 

representation is due to systematic exclusion of the group 

in the jury-selection process.” Id., at 364. The first showing is, in most cases, easily made; the second and third are

more likely to generate controversy.

The defendant in Duren readily met all three measures. 

He complained of the dearth of women in the Jackson 

County, Missouri, jury pool. To establish underrepresentation, he proved that women were 54% of the jury-eligible 

population, but accounted for only 26.7% of the persons 

summoned for jury service, and only 14.5% of the persons

on the postsummons weekly venires from which jurors 

were drawn. To show the “systematic” cause of the underrepresentation, Duren pointed to Missouri’s law exempting women from jury service, and to the manner in which

Jackson County administered the exemption. Concluding

that no significant state interest could justify Missouri’s 

explicitly gender-based exemption, this Court held the

law, as implemented in Jackson County, violative of the 

Sixth Amendment’s fair-cross-section requirement. 

We here review the decision of the United States Court 

of Appeals for the Sixth Circuit holding that Smith “satisf[ied] the prima facie test established by Duren,” and 

granting him habeas corpus relief, i.e., release from imprisonment absent a new trial commenced within 180 days 

of the Court of Appeals’ order. 543 F. 3d 326, 336 (2008). 

Despite marked differences between Smith’s case and 

Duren’s, and a cogent Michigan Supreme Court decision

holding that Smith “ha[d] not shown . . . systematic exclusion,” People v. Smith, 463 Mich. 199, 205, 615 N. W. 2d 1, 

3 (2000), the Sixth Circuit found the matter settled. Cognizant of the restrictions Congress placed on federal habeas review of state-court convictions, the Court of Appeals considered that a decision contrary to its own would 

“involv[e] an unreasonable application o[f] clearly established Federal law, as determined by the Supreme Court 

of the United States,” 28 U. S. C. §2254(d)(1). 543 F. 3d, 
Cite as: 559 U. S. ____ (2010) 3 

Opinion of the Court 

at 335. 

The Sixth Circuit erred in so ruling. No decision of this 

Court “clearly establishe[s]” Smith’s entitlement to federal-court relief. According to the Sixth Circuit, Smith

had demonstrated that a Kent County prospective-jurorassignment procedure, which Smith calls “siphoning,”

“systematic[ally] exclu[ded]” African-Americans. Under 

this procedure, Kent County assigned prospective jurors

first to local district courts, and, only after filling local 

needs, made remaining persons available to the countywide Circuit Court, which heard felony cases like Smith’s.

The Michigan Supreme Court, however, had rejected 

Smith’s “siphoning” plea for lack of proof that the assignment procedure caused underrepresentation. Smith, 463 

Mich., at 205, 615 N. W. 2d, at 3. As that determination 

was not at all unreasonable, the Sixth Circuit had no 

warrant to disturb it. See §2254(d)(2).

In addition to renewal of his “siphoning” argument,

Smith here urges that a host of factors combined to reduce

systematically the number of African-Americans appearing on Kent County jury lists, for example, the Kent

County court’s practice of excusing people without adequate proof of alleged hardship, and the refusal of Kent 

County police to enforce orders for prospective jurors to 

appear. Brief for Respondent 53–54. Our decisions do not 

address factors of the kind Smith urges. We have cautioned, however, that “[t]he fair-cross-section principle 

must have much leeway in application.” Taylor, 419 U. S., 

at 537–538; see id., at 537 (Court’s holding that Sixth

Amendment is violated by systematic exclusion of women 

from jury service “does not augur or authorize the fashioning of detailed jury-selection codes by federal courts.”). 

I 

A 

On November 7, 1991, Christopher Rumbley was shot 
4 BERGHUIS v. SMITH 

Opinion of the Court 

and killed during a bar brawl in Grand Rapids, Michigan. 

The bar was crowded at the time of the brawl, with 200-to300 people on the premises. All patrons of the bar were 

African-American. The State charged Smith with the

murder in Kent County Circuit Court. 

Voir dire for Smith’s trial took place in September 1993.

The venire panel included between 60 and 100 individuals. 

The parties agree that, at most, three venire members

were African-American. Smith unsuccessfully objected to

the composition of the venire panel.

Smith’s case proceeded to trial before an all-white jury.

The case for the prosecution turned on the identity of the 

man who shot Rumbley. Thirty-seven witnesses from the

bar, including Smith, testified at the trial. Of those, two 

testified that Smith fired the gun. Five testified that the 

shooter was not Smith, and the remainder made no identifications of the shooter. The jury convicted Smith of second-degree murder and possession of a firearm during a 

felony, and the court sentenced him to life imprisonment 

with the possibility of parole. 

B 

On first appeal, the Michigan Court of Appeals ordered

the trial court to conduct an evidentiary hearing on

Smith’s fair-cross-section claim. The hearing occurred in 

early 1998. Smith’s evidence showed that Grand Rapids, 

the largest city in Kent County, was home to roughly 37% 

of Kent County’s population, and to 85% of its AfricanAmerican residents. Felony charges in Kent County were

tried in a sole Circuit Court. Misdemeanors were prosecuted in 12 district courts, each covering a discrete geographical area. To fill the courts’ venires, Kent County 

sent questionnaires to prospective jurors. The Circuit 

Court Administrator testified that about 5% of the forms 

were returned as undeliverable, and another 15 to 20% 

were not answered. App. 13a. From the pool of prospec-
Cite as: 559 U. S. ____ (2010) 5 

Opinion of the Court 

tive jurors who completed questionnaires, the County 

granted requests for hardship exemptions, e.g., for lack of 

transportation or child care. Id., at 21a. Kent County

then assigned nonexempt prospective jurors to their local 

district courts’ venires. After filling the district courts’

needs, the County assigned the remaining prospective

jurors to the Circuit Court’s panels. Id., at 20a, 22a. 

 The month after voir dire for Smith’s trial, Kent County

reversed the assignment order. It did so, according to the 

Circuit Court Administrator, based on “[t]he belief . . . that 

the respective districts essentially swallowed up most of 

the minority jurors,” leaving the Circuit Court with a jury

pool that “did not represent the entire county.” Id., at 22a. 

The Jury Minority Representation Committee, its co-chair

testified, held the same view concerning the impact of

choosing district court jurors first and not returning unused persons to the pool available for Circuit Court selections. Id., at 64a–65a. 

The trial court considered two means of measuring the

extent of underrepresentation of African-Americans on 

Circuit Court venires: “absolute disparity” and “comparative disparity.” “Absolute disparity” is determined by

subtracting the percentage of African-Americans in the 

jury pool (here, 6% in the six months leading up to Smith’s 

trial) from the percentage of African-Americans in the 

local, jury-eligible population (here, 7.28%). By an absolute disparity measure, therefore, African-Americans were

underrepresented by 1.28%. “Comparative disparity” is 

determined by dividing the absolute disparity (here, 

1.28%) by the group’s representation in the jury-eligible

population (here, 7.28%). The quotient (here, 18%), 

showed that, in the six months prior to Smith’s trial, 

African-Americans were, on average, 18% less likely, when

compared to the overall jury-eligible population, to be on 

the jury-service list. App. to Pet. for Cert. 215a.

Isolating the month Smith’s jury was selected, Smith’s 
6 BERGHUIS v. SMITH 

Opinion of the Court 

statistics expert estimated that the comparative disparity

was 34.8%. App. 181a. In the 11 months after Kent 

County discontinued the district-court-first assignment

policy, the comparative disparity, on average, dropped 

from 18% to 15.1%. Id., at 102a–103a, 113a. 

Smith also introduced the testimony of an expert in

demographics and economics, who tied the underrepresentation to social and economic factors. In Kent County, the 

expert explained, these forces made African-Americans 

less likely than whites to receive or return juror-eligibility 

questionnaires, and more likely to assert a hardship excuse. Id., at 79a–80a. 

The hearing convinced the trial court that AfricanAmericans were underrepresented in Circuit Court venires. App. to Pet. for Cert. 210a. But Smith’s evidence was 

insufficient, that court held, to prove that the jurorassignment order, or any other part of the jury-selection 

process, had systematically excluded African-Americans. 

Id., at 210a–212a. The court therefore rejected Smith’s 

fair-cross-section claim. 

C 

The Michigan Court of Appeals concluded that the jurorallocation system in place at the relevant time did result

in the underrepresentation of African-Americans. Id., at 

182a–183a. Reversing the trial court’s judgment, the 

intermediate appellate court ordered a new trial, with

jurors selected under the Circuit-Court-first assignment

order installed shortly after the voir dire in Smith’s case. 

Ibid.; see supra, at 5. 

The Michigan Supreme Court, in turn, reversed the

Court of Appeals’ judgment, concluding that Smith “ha[d] 

not established a prima facie violation of the Sixth

Amendment fair-cross-section requirement.” Smith, 463 

Mich., at 207, 615 N. W. 2d, at 4. The Michigan High

Court observed, first, that this Court has specified “[no] 
Cite as: 559 U. S. ____ (2010) 7 

Opinion of the Court 

preferred method for measuring whether representation of 

a distinctive group in the jury pool is fair and reasonable.” 

Id., at 203, 615 N. W. 2d, at 2. The court then noted that 

lower federal courts had applied three different methods

to measure fair and reasonable representation: the absolute and comparative disparity tests, described supra, at 5, 

and “the standard deviation test.”1 

Recognizing that no single test was entirely satisfactory,

the Michigan Supreme Court adopted a case-by-case

approach allowing consideration of all three means of 

measuring underrepresentation. Smith, 463 Mich., at 

204, 615 N. W. 2d, at 3. Smith’s statistical evidence, the 

court found, “failed to establish a legally significant disparity under either the absolute or comparative disparity 

tests.” Id., at 204–205, 615 N. W. 2d, at 3. (The parties

had presented no expert testimony regarding application 

of the standard deviation test. Id., at 204, n. 1, 615 N. W. 

2d, at 3, n. 1; supra, at 5–6.) 

Nevertheless “grant[ing] [Smith] the benefit of the doubt

on unfair and unreasonable underrepresentation,” the

Michigan Supreme Court ultimately determined that “he 

ha[d] not shown systematic exclusion.” Smith, 463 Mich., 

at 203, 205, 615 N. W. 2d, at 2, 3. Smith’s evidence, the 

court said, did not show “how the alleged siphoning of

African American jurors to district courts affected the 

circuit court jury pool.” Id., at 205, 615 N. W. 2d, at 3. In 

particular, the court observed, “[t]he record does not disclose whether the district court jury pools contained more, 

fewer, or approximately the same percentage of minority 

jurors as the circuit court jury pool.” Ibid. The court also 

ruled that “the influence of social and economic factors on 

—————— 

1Standard deviation analysis seeks to determine the probability that

the disparity between a group’s jury-eligible population and the group’s 

percentage in the qualified jury pool is attributable to random chance. 

See People v. Smith, 463 Mich. 199, 219–220, 615 N. W. 2d 1, 9–10 

(2000) (Cavanagh, J., concurring). 
8 BERGHUIS v. SMITH 

Opinion of the Court 

juror participation does not demonstrate a systematic

exclusion.” Id., at 206, 615 N. W. 2d, at 3. 

D 

In February 2003, Smith filed a habeas corpus petition

in the United States District Court for the Western District of Michigan, reasserting his fair-cross-section claim. 

Because Smith is “in custody pursuant to the judgment of 

a State court,” the Antiterrorism and Effective Death 

Penalty Act of 1996 (AEDPA), §2254, governed the District 

Court’s review of his application for federal habeas corpus

relief. Under the controlling provision of AEDPA, codified 

in §2254(d), a state prisoner’s application may not be 

granted as to “any claim . . . adjudicated . . . in State 

court” unless the state court’s adjudication 

“(1) resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 

Court of the United States; or 

“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” 

Applying these standards, the District Court dismissed 

Smith’s habeas petition. App. to Pet. for Cert. 40a–42a. 

The Court of Appeals reversed. Where, as here, the 

allegedly excluded group is small, the Sixth Circuit ruled,

courts should use the comparative disparity test to measure underrepresentation. 543 F. 3d, at 338. In that 

court’s view, Smith’s comparative disparity statistics

sufficed “to demonstrate that the representation of African

American veniremen in Kent County . . . was unfair and 

unreasonable.” Ibid. As to systematic exclusion, the Sixth 

Circuit, in accord with the Michigan intermediate appellate court, believed that the juror-assignment order in

effect when Smith’s jury was empaneled significantly 
Cite as: 559 U. S. ____ (2010) 9 

Opinion of the Court 

reduced the number of African-Americans available for 

Circuit Court venires. Id., at 342. Smith was entitled to 

relief, the court concluded, because no important state

interest supported that allocation system. Id., at 345.2 

The State petitioned for certiorari attacking the Sixth

Circuit’s decision on two principal grounds: First, the 

State charged that the federal appellate court erred in 

adopting the comparative disparity test to determine 

whether a distinctive group was underrepresented in the 

jury pool. Pet. for Cert. ii. Second, the State urged that,

in any event, “there was no . . . systematic exclusion of 

African Americans from juries in Kent County, Michigan,” 

id., at 25, and no warrant for the Sixth Circuit’s contrary 

determination.3 We granted review, 557 U. S. ____ (2009),

and now reverse the Sixth Circuit’s judgment.

According to the Sixth Circuit, the Michigan Supreme

Court’s rejection of Smith’s Sixth Amendment plea “involved an unreasonable application o[f] clearly established 

Federal law, as determined by [this Court in Duren].” 

—————— 

2The Sixth Circuit also found that the Michigan Supreme Court had 

unreasonably applied Duren v. Missouri, 439 U. S. 357 (1979), when it 

declared that social and economic factors could not establish systematic 

exclusion. 543 F. 3d, at 341–342. Because such factors disproportionately affect African-Americans, the Sixth Circuit said, Kent County’s

routine grants of certain hardship exemptions “produced systematic 

exclusion within the meaning of Duren.” Ibid. The Sixth Circuit held, 

however, that the hardship exemptions could not establish a fair-crosssection claim because the State “has a significant interest [in] avoiding

undue burdens on individuals” by allowing such excuses. Id., at 345. 3Although the question presented by the State homes in on the 

proper measure for underrepresentation, it initially and more comprehensively inquires whether Smith was denied his right to a jury drawn 

from a fair cross section of the community. See Pet. for Cert. ii (asking 

“[w]hether the U. S. Court of Appeals for the Sixth Circuit erred in

concluding that the Michigan Supreme Court failed to apply ‘clearly 

established’ Supreme Court precedent under 28 U. S. C. §2254 on the 

issue of the fair cross-section requirement under Duren . . . .”). We 

therefore address that overarching issue. 
10 BERGHUIS v. SMITH 

Opinion of the Court 

§2254(d)(1); see 543 F. 3d, at 345. We disagree. As explained below, our Duren decision hardly establishes—no 

less “clearly” so—that Smith was denied his Sixth 

Amendment right to an impartial jury drawn from a fair 

cross section of the community. 

II 

To establish a prima facie violation of the fair-crosssection requirement, this Court’s pathmarking decision in 

Duren instructs, a defendant must prove that: (1) a group 

qualifying as “distinctive” (2) is not fairly and reasonably 

represented in jury venires, and (3) “systematic exclusion”

in the jury-selection process accounts for the underrepresentation. 439 U. S., at 364; see supra, at 1–2. 

The defendant in Duren successfully challenged Jackson

County’s administration of a Missouri exemption permitting any woman to opt out of jury service. 439 U. S., at 

360. The Court explained why it was plain that defendant 

Duren had established a prima facie case. First, women in 

Jackson County were both “numerous and distinct from

men.” Id., at 364 (quoting Taylor, 419 U. S., at 531). 

Second, Duren’s “statistical presentation” showed gross 

underrepresentation: Women were over half the juryeligible population; in stark contrast, they accounted for 

less than 15% of jury venires. 439 U. S., at 364–366. 

Duren also demonstrated systematic exclusion with

particularity. He proved that women’s underrepresentation was persistent—occurring in every weekly venire for 

almost a year—and he identified the two stages of the 

jury-selection process “when . . . the systematic exclusion 

took place.” Id., at 366. First, questionnaires for prospective jurors stated conspicuously that women could opt out 

of jury service. Less than 30% of those summoned were 

female, suggesting that women in large numbers claimed 

the exemption at the questionnaire stage. Ibid. “Moreover, at the summons stage women were . . . given another 
Cite as: 559 U. S. ____ (2010) 11 

Opinion of the Court 

opportunity to [opt out].” Id., at 366–367. And if a woman 

ignored the summons, she was deemed to have opted out; 

no further inquiry was made. Id., at 367. At this “final, 

venire, stage,” women’s representation plummeted to 

14.5%. Ibid. In the Federal District Court serving the

same territory, the Court noted, despite a women-only

childcare exemption, women accounted for nearly 40% of 

those actually serving on juries. See ibid., n. 25. 

The “disproportionate and consistent exclusion of 

women from the [Jackson County] jury wheel and at the

venire stage,” the Court concluded, “was quite obviously 

due to the system by which juries were selected.” Id., at 

367. “[A]ppropriately tailored” hardship exemptions, the

Court added, would likely survive a fair-cross-section

challenge if justified by an important state interest. Id., 

at 370. But no such interest, the Court held, could justify

Missouri’s exemption for each and every woman—the

altogether evident explanation for the underrepresentation. Id., at 369–370. 

III 

A 

As the Michigan Supreme Court correctly observed, see 

supra, at 6, neither Duren nor any other decision of this

Court specifies the method or test courts must use to

measure the representation of distinctive groups in jury

pools. The courts below and the parties noted three methods employed or identified in lower federal court decisions: 

absolute disparity, comparative disparity, and standard 

deviation. See Smith, 463 Mich., at 204–205, 615 N. W. 

2d, at 2–3; Brief for Petitioner 3; Brief for Respondent 26; 

supra, at 6–7. 

Each test is imperfect. Absolute disparity and comparative disparity measurements, courts have recognized, can

be misleading when, as here, “members of the distinctive

group comp[ose] [only] a small percentage of those eligible 
12 BERGHUIS v. SMITH 

Opinion of the Court 

for jury service.” Smith, 463 Mich., at 203–204, 615 N. W. 

2d, at 2–3. And to our knowledge, “[n]o court . . . has

accepted [a standard deviation analysis] alone as determinative in Sixth Amendment challenges to jury selection 

systems.” United States v. Rioux, 97 F. 3d 648, 655 (CA2 

1996).

On direct review, as earlier stated, the Michigan Supreme Court chose no single method “to measur[e] 

whether representation was fair and reasonable.” Smith, 

463 Mich., at 204, 615 N. W. 2d, at 3; see supra, at 7. 

Instead, it “adopt[ed] a case-by-case approach.” Smith, 

463 Mich., at 204, 615 N. W. 2d, at 3. “Provided that the 

parties proffer sufficient evidence,” that court said, “the 

results of all of the tests [should be considered].” Ibid. In 

contrast, the Sixth Circuit declared that “[w]here the

distinctive group alleged to have been underrepresented is 

small, as is the case here, the comparative disparity test is

the more appropriate measure of underrepresentation.” 

543 F. 3d, at 338. 

Even in the absence of AEDPA’s constraint, see supra, 

at 8, we would have no cause to take sides today on the 

method or methods by which underrepresentation is appropriately measured.4 Although the Michigan Supreme

Court concluded that “[Smith’s] statistical evidence failed 

to establish a legally significant disparity under either the 

absolute or comparative disparity tests,” Smith, 463 Mich., 

at 204–205, 615 N. W. 2d, at 3,5 that court nevertheless 

—————— 

4The State asks us to “adopt the absolute-disparity standard for

measuring fair and reasonable representation” and to “requir[e] proof

that the absolute disparity exceeds 10%” to make out a prima facie faircross-section violation. Brief for Petitioner 45–46. Under the rule the 

State proposes, “the Sixth Amendment offers no remedy for complete

exclusion of distinct groups in communities where the population of the

distinct group falls below the 10 percent threshold.” Brief for Respondent 35. We need not reach that issue. 5For similar conclusions, see, for example, United States v. Orange, 

447 F. 3d 792, 798–799, and n. 7 (CA10 2006) (absolute disparity of 
Cite as: 559 U. S. ____ (2010) 13 

Opinion of the Court 

gave Smith “the benefit of the doubt on underrepresentation,” id., at 205, 615 N. W. 2d, at 3. It did so in order to 

reach the issue ultimately dispositive in Duren: To the 

extent underrepresentation existed, was it due to “systematic exclusion”? Ibid.; see Duren, 439 U. S., at 364. 

B 

Addressing the ground on which the Sixth Circuit rested

its decision, Smith submits that the district-court-first 

assignment order systematically excluded AfricanAmericans from Kent County Circuit Court venires. Brief 

for Respondent 46–48. But as the Michigan Supreme 

Court not at all unreasonably concluded, Smith, 463 

Mich., at 205, 615 N. W. 2d, at 3, Smith’s evidence scarcely

shows that the assignment order he targets caused underrepresentation. Although the record established that

some officials and others in Kent County believed that the 

assignment order created racial disparities, and the

County reversed the order in response, supra, at 5, the 

belief was not substantiated by Smith’s evidence. 

Evidence that African-Americans were underrepresented on the Circuit Court’s venires in significantly

higher percentages than on the Grand Rapids District

Court’s could have indicated that the assignment order

made a critical difference. But, as the Michigan Supreme 

Court noted, Smith adduced no evidence to that effect. 

See Smith, 463 Mich., at 205, 615 N. W. 2d, at 3. Nor did 

Smith address whether Grand Rapids, which had the 

County’s largest African-American population, “ha[d] more 

—————— 

3.57%; comparative disparities “rang[ing] from 38.17% to 51.22%”); 

United States v. Royal, 174 F. 3d 1, 10 (CA1 1999) (2.97% absolute

disparity; 61.1% comparative disparity); United States v. Rioux, 97

F. 3d 648, 657–658 (CA2 1996) (2.08% absolute disparity; 29% comparative disparity); State v. Gibbs, 254 Conn. 578, 591–593, 758 A. 2d 

327, 337–338 (2000) (2.49% absolute disparity; 37% comparative 

disparity). 
14 BERGHUIS v. SMITH 

Opinion of the Court 

need for jurors per capita than [any other district in Kent 

County].” Tr. of Oral Arg. 26; id., at 18, 37. Furthermore, 

Smith did not endeavor to compare the African-American

representation levels in Circuit Court venires with those 

in the Federal District Court venires for the same region. 

See id., at 46–47; Duren, 439 U. S., at 367, n. 25. 

Smith’s best evidence of systematic exclusion was offered by his statistics expert, who reported a decline in 

comparative underrepresentation, from 18 to 15.1%, after 

Kent County reversed the assignment order. See supra, at 

5. This evidence—particularly in view of AEDPA’s instruction, §2254(d)(2)—is insufficient to support Smith’s

claim that the assignment order caused the underrepresentation. As Smith’s counsel recognized at oral argument, this decrease could not fairly be described as “a big 

change.” Tr. of Oral Arg. 51; see ibid. (the drop was “a 

step in the right direction”). In short, Smith’s evidence 

gave the Michigan Supreme Court little reason to conclude

that the district-court-first assignment order had a significantly adverse impact on the representation of AfricanAmericans on Circuit Court venires. 

C 

To establish systematic exclusion, Smith contends, the 

defendant must show only that the underrepresentation is

persistent and “produced by the method or ‘system’ used to 

select [jurors],” rather than by chance. Brief for Respondent 38, 40. In this regard, Smith catalogs a laundry list 

of factors in addition to the alleged “siphoning” that, he

urges, rank as “systematic” causes of underrepresentation 

of African-Americans in Kent County’s jury pool. Id., at 

53–54. Smith’s list includes the County’s practice of excusing people who merely alleged hardship or simply 

failed to show up for jury service, its reliance on mail 

notices, its failure to follow up on nonresponses, its use of 

residential addresses at least 15 months old, and the 
Cite as: 559 U. S. ____ (2010) 15 

Opinion of the Court 

refusal of Kent County police to enforce court orders for

the appearance of prospective jurors. Ibid. 

No “clearly established” precedent of this Court supports 

Smith’s claim that he can make out a prima facie case 

merely by pointing to a host of factors that, individually or 

in combination, might contribute to a group’s underrepresentation. Smith recites a sentence in our Duren opinion

that, he says, placed the burden of proving causation on 

the State. See Tr. of Oral Arg. 33, 35. The sentence reads: 

“Assuming, arguendo, that the exemptions mentioned by 

the court below [those for persons over 65, teachers, and 

government workers] would justify failure to achieve a fair 

community cross section on jury venires, the State must 

demonstrate that these exemptions [rather than the

women’s exemption] caused the underrepresentation

complained of.” 439 U. S., at 368–369. That sentence 

appears after the Court had already assigned to Duren—

and found he had carried—the burden of proving that the

underrepresentation “was due to [women’s] systematic 

exclusion in the jury-selection process.” Id., at 366. The 

Court’s comment, which Smith clipped from its context,

does not concern the demonstration of a prima face case.

Instead, it addresses what the State might show to rebut 

the defendant’s prima facie case. The Michigan Supreme 

Court was therefore far from “unreasonable,” §2254(d)(1), 

in concluding that Duren first and foremost required

Smith himself to show that the underrepresentation complained of was “due to systematic exclusion.” Id., at 364; 

see Smith, 463 Mich., at 205, 615 N. W. 2d, at 3. 

This Court, furthermore, has never “clearly established” 

that jury-selection-process features of the kind on Smith’s 

list can give rise to a fair-cross-section claim. In Taylor, 

we “recognized broad discretion in the States” to “prescribe relevant qualifications for their jurors and to provide reasonable exemptions.” 419 U. S., at 537–538. And 

in Duren, the Court understood that hardship exemptions 
16 BERGHUIS v. SMITH 

Opinion of the Court 

resembling those Smith assails might well “survive a faircross-section challenge,” 439 U. S., at 370.6 In sum, the 

Michigan Supreme Court’s decision rejecting Smith’s faircross-section claim is consistent with Duren and “involved 

[no] unreasonable application o[f] clearly established 

Federal law,” §2254(d)(1). 

* * * 

For the reasons stated, the judgment of the Court of

Appeals for the Sixth Circuit is reversed, and the case is

remanded for further proceedings consistent with this 

opinion. 

It is so ordered. 

—————— 

6We have also never “clearly” decided, and have no need to consider 

here, whether the impact of social and economic factors can support a 

fair-cross-section claim. Compare Smith, 463 Mich., at 206, 615 N. W. 

2d, at 3 (“[T]he influence of social and economic factors on juror participation does not demonstrate a systematic exclusion of [a distinctive

group].”), with 543 F. 3d 326, 341 (CA6 2008) (case below) (“[T]he Sixth

Amendment is concerned with social or economic factors when the 

particular system of selecting jurors makes such factors relevant to who 

is placed on the qualifying list and who is ultimately called to or excused from service on a venire panel.”). 
_________________ 

_________________ 

Cite as: 559 U. S. ____ (2010) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 08–1402 

MARY BERGHUIS, WARDEN, PETITIONER v.

DIAPOLIS SMITH 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT

[March 30, 2010] 

JUSTICE THOMAS, concurring. 

The text of the Sixth Amendment guarantees the right

to a trial by “an impartial jury.” Historically, juries did

not include a sampling of persons from all levels of society 

or even from both sexes. See, e.g., Alschuler & Deiss, A 

Brief History of the Criminal Jury in the United States, 61

U. Chi. L. Rev. 867, 877 (1994) (In 1791, “[e]very state 

limited jury service to men; every state except Vermont 

restricted jury service to property owners or taxpayers;

three states permitted only whites to serve; and one state,

Maryland, disqualified atheists”); Taylor v. Louisiana, 419 

U. S. 522, 533, n. 13 (1975) (“In this country women were

disqualified by state law to sit as jurors until the end of

the 19th century”). The Court has nonetheless concluded 

that the Sixth Amendment guarantees a defendant the 

right to a jury that represents “a fair cross section” of the 

community. Ante, at 1 (citing Taylor, supra).

In my view, that conclusion rests less on the Sixth 

Amendment than on an “amalgamation of the Due Process 

Clause and the Equal Protection Clause of the Fourteenth

Amendment,” Duren v. Missouri, 439 U. S. 357, 372 (1979) 

(Rehnquist, J., dissenting), and seems difficult to square

with the Sixth Amendment’s text and history. Accordingly, in an appropriate case I would be willing to reconsider our precedents articulating the “fair cross section” 
2 BERGHUIS v. SMITH 

THOMAS, J., concurring 

requirement. But neither party asks us to do so here, and 

the only question before us is whether the state court’s 

disposition was contrary to, or an unreasonable application of, our precedents. See ante, at 2−3, 8−10; 28 U. S. C. 

§2254(d). I concur in the Court’s answer to that question.