J. E. B. v. Alabama ex rel. T. B.
The Court ruled that the Equal Protection Clause bars lawyers from using peremptory strikes to remove jurors based solely on their gender, extending the rule it had already applied to race-based jury strikes.
In this Alabama paternity case, the state had struck nearly all the male jurors, leaving an all-female jury; the Court found that kind of gender-based jury-picking unconstitutional and sent the case back for further proceedings.
“We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.”
The Court's core holding extending the ban on race-based jury strikes to gender-based strikes.
How it got here: An Alabama trial court rejected the gender-discrimination objection to jury strikes; the Alabama Court of Civil Appeals affirmed, and the U.S. Supreme Court granted review.
The Case in Depth
What happened
Alabama sued a man on behalf of a mother to establish that he was the father of her child and to collect child support. During jury selection, the State used most of its strikes to remove male jurors, while the man struck mostly female jurors, leaving an all-female jury that found him to be the father and ordered him to pay support.
The question before the Court
Can a state remove potential jurors from a trial simply because of their gender, the same way the Constitution already bars removing them because of race?
The Court's answer
No — a state cannot use peremptory strikes to remove jurors just because of their gender. The Court ruled that gender, like race, cannot be used as a stand-in for guessing at a juror's fairness or sympathies. Alabama's justification — that men might be more sympathetic to a man accused of fathering a child out of wedlock, while women might side with the mother — was exactly the kind of broad gender stereotype the Court's equal-protection cases already reject.
Because gender-based government action requires an unusually strong justification to survive constitutional review, and Alabama offered only speculation about how men and women might vote as jurors, the strikes failed that test. The ruling does not ban peremptory challenges altogether, only their use as a tool for excluding jurors by gender.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Lawyers in criminal and civil trials nationwide can no longer strike jurors simply because they are men or women. Litigants who believe they faced gender-based jury strikes now have a constitutional claim, and courts must handle objections to gender-based strikes the same way they already handle race-based strike objections under Batson.
What changes now
The case returns to the Alabama Court of Civil Appeals for further proceedings consistent with the ruling, meaning the paternity finding could be revisited in light of the improper jury-selection process. More broadly, trial courts nationwide must now apply Batson-style objections and explanations whenever a party suspects the other side struck a juror because of gender, adding another layer to jury selection procedures already used for race-based claims.
What this does not decide
The Court did not eliminate peremptory challenges generally or forbid strikes based on traits that merely correlate with gender, such as occupation, so long as they are not a pretext for gender bias. It also left undisturbed prior rulings that private civil litigants and criminal defendants can be treated as state actors for these purposes, a point Justice O'Connor's concurrence urged the Court to revisit.
Concurrences and dissents
Concurrence — Justice O'Connor
Justice O'Connor joined the majority but warned that the ruling has real costs: it adds another layer of litigation to jury selection, weakens the traditionally unexplained nature of peremptory strikes, and may prevent litigants from acting on sometimes-accurate gender-based intuitions. She argued the holding should be limited to government actors and not extended to private civil litigants or criminal defendants, questioning the earlier decisions that treated them as state actors.
Concurrence — Justice Kennedy
Justice Kennedy agreed that gender-based peremptory strikes are unconstitutional but explained his own reasoning: the Equal Protection Clause protects individual rights, not group rights, so a juror excluded because of her sex suffers the same injury as one excluded by a discriminatory law. He also stressed that jurors, once seated, must not act on racial or gender bias themselves.
Dissent — Justice Rehnquist
Chief Justice Rehnquist argued that race and gender discrimination are meaningfully different under equal protection doctrine, since race triggers strict scrutiny while gender gets a lesser standard, and that the State adequately justified using sex as a factor given real behavioral differences between men and women. He would not have extended Batson to gender-based strikes.
Dissent — Justice Scalia
Justice Scalia argued the case's facts made most of the majority's reasoning irrelevant, since the harm here, if any, fell on struck jurors rather than the defendant, who suffered no real injury and was proven the father with 99.92% certainty. He contended peremptory strikes are evenhanded across the whole system, that unlike categorical exclusion they carry no dishonor, and that the ruling would gut the peremptory challenge and spawn extensive collateral litigation.
How the Court got there
The legal reasoning, step by step
- The Court applied its established Batson framework, which already barred prosecutors from striking jurors because of their race, and asked whether the same equal-protection logic extends to strikes based on gender.
- Because gender-based classifications by government require an 'exceedingly persuasive justification' to survive constitutional review, the Court asked whether striking jurors by gender substantially furthers a state's legitimate interest in a fair and impartial trial.
- The Court found that Alabama's justification rested on the assumption that men and women, as groups, hold different views on paternity cases -- exactly the kind of broad gender stereotype the Court's equal-protection cases have already rejected as insufficient justification.
- The Court reasoned that gender bears no closer relationship to a juror's actual competence or impartiality than race does, so allowing gender-based strikes would let gender serve as an unconstitutional stand-in for bias.
- The Court concluded that both the excluded jurors and the litigants have a right to jury selection free of state-sponsored gender stereotyping, so gender-based peremptory strikes violate the Equal Protection Clause just as race-based strikes do.
Doctrinal impact
Cases affected by this decision
Overrules Hoyt v. Florida (368 U.S. 57)
The opinion notes Taylor v. Louisiana 'in effect' overruled Hoyt's approval of exempting women from mandatory jury service.
Reaffirms Batson v. Kentucky (476 U.S. 79)
The Court extends Batson's ban on race-based peremptory strikes to cover gender-based strikes as well.