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The decision in Armstrong effectively shields this type of biased decision making from judicial scrutiny for racial bias. Prosecutors are well aware that the exercise of their discretion is unchecked, provided no explicitly racist remarks are made, as it is next to impossible for defendants to prove racial bias. It is difficult to imagine a system better designed to ensure that racial biases and stereotypes are given free reign—while at the same time appearing on the surface to be colorblind—than the one devised by the U.S. Supreme Court.

In Defense of the All-White Jury—Purkett v. Elm

The rules governing jury selection provide yet another illustration of the Court’s complete abdication of its responsibility to guarantee racial minorities equal treatment under the law. In 1985, in Batson v. Kentucky, the Court held that the Fourteenth Amendment prohibits prosecutors from discriminating on the basis of race when selecting juries, a ruling hailed as an important safeguard against all-white juries locking up African Americans based on racial biases and stereotypes. Prior to Batson, prosecutors had been allowed to strike blacks from juries, provided they did not always strike black jurors. The Supreme Court had ruled in 1965, in Swain v. Alabama, that an equal-protection claim would arise only if a defendant could prove that a prosecutor struck African American jurors in every case, regardless of the crime involved or regardless of the races of the defendant or the victim.62 Two decades later, in Batson, the Supreme Court reversed course, a nod to the newly minted public consensus that explicit race discrimination is an affront to American values. Almost immediately after Batson was decided, however, it became readily apparent that prosecutors had no difficulty circumventing the formal requirement of colorblindness in jury selection by means of a form of subterfuge the Court would come to accept, if not endorse.

The history of race discrimination in jury selection dates back to slavery. Until 1860, no black person had ever sat on a jury in the United States. During the Reconstruction era, African Americans began to serve on juries in the South for the first time. The all-white jury promptly returned, however, when Democratic conservatives sought to “redeem” the South by stripping blacks of their right to vote and their right to serve on juries. In 1880, the Supreme Court intervened, striking down a West Virginia statute that expressly reserved jury service to white men. Citing the recently enacted Fourteenth Amendment, the Court declared that the exclusion of blacks from jury service was “practically a brand upon them, affixed by law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to . . . equal justice.”63 The Court asked, “How can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of his color alone, however well qualified in other respects, is not a denial to him of equal protection?”64

For all its bluster, the Court offered no meaningful protection against jury discrimination in the years that followed. As legal scholar Benno Schmidt has observed, from the end of Reconstruction through the New Deal, “the systematic exclusion of black men from Southern juries was about as plain as any legal discrimination could be short of proclamation in state statutes or confession by state officials.”65 The Supreme Court repeatedly upheld convictions of black defendants by all-white juries in situations where exclusion of black jurors was obvious.66 The only case in which the Court overturned a conviction on the grounds of discrimination in jury selection was Neal v. Delaware, a case decided in 1935. State law in Delaware once had explicitly restricted jury service to white men, and “no colored citizen had ever been summoned as a