The passage of the fourteenth amendment gave many issues concerning the makeup of the jury a basis for argument in the courts. One of the most difficult issues has been the use of racially based peremptory challenges. The process of formulating law concerning discriminatory use of peremptory challenges has been hampered by the conflict between the equal protection doctrine and the sixth amendment right to an impartial jury on one hand, and the essence of the peremptory challenge with its “very old credentials” on the other. One commentator stated that: “Analysis must start with the basic reality that, where racial identification is concerned, the rationale of the peremptory challenge is at war with the ideal of non-discriminatory selection of jurors.”‘
In a 1983 opinion denying petitions for writs of certiorari in three cases concerning the constitutionality of a prosecutor’s discriminatory use of peremptory challenges, Justice Stevens stated:
I believe that further consideration of the substantive and procedural ramifications of the problem by other courts will enable us to deal with the issue more wisely at a later date…. In my judgment it is a sound exercise of discretion for the Court to allow the various States to serve as laboratories in which the issue receives further study before it is addressed by this Court.
Batson v. Kentucky is the consequence of this experimentation in the “laboratories” of various states and federal courts. This note will briefly examine Batson in its historical context and then move to an analysis of the decision itself. Next, it will discuss its equal protection basis for Batson’s shift in the burden of proof, concluding that although the remedy set forth in Batson may ameliorate some of the problems with racially based peremptory chal- lenges, the equal protection basis is analytically vulnerable and a further solution must be found under the sixth amendment fair cross-section doctrine. . .