Introduction
On January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: Peremptory strikes, long a feature of American trial adjudication, were eliminated.
Arizona has gone furthest, but it is not alone in reforming the law of jury selection in fundamental ways. In the span of just a few years, four other states—California, Connecticut, New Jersey, and Washington—have overhauled their approach to peremptory strikes, and others are considering doing the same.
Under the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky and its progeny, peremptory strikes substantially motivated by a prospective juror’s race
or sex
violate the Equal Protection Clause. But the new reforms are different in subtle though important ways: Most notably, they proscribe certain justifications for peremptory strikes that would disproportionately exclude protected classes from service, even when the proponent’s actual subjective motivation is pristine.
Nearly one-fifth of the country’s population now lives in a jurisdiction where Batson v. Kentucky’s familiar three-part framework
no longer governs the validity of a peremptory strike.
These new legal frameworks are sometimes called “Batson-plus” regimes, insofar as they mandate heightened scrutiny of whether a peremptory strike is impermissibly discriminatory.
But this label elides the ways in which these states’ new laws reject core features of the U.S. Supreme Court’s decision in Batson v. Kentucky and its equal protection jurisprudence more generally: The new laws focus on disparate outcomes rather than discriminatory intent, ordinarily the sine qua non of modern constitutional discrimination claims.
Surveying the “racial common sense” of the Roberts Court in her recent Harvard Law Review Foreword, Professor Khiara M. Bridges argues that “nonwhite people cannot expect the courts to intervene in the race-neutral processes that do most of the heavy lifting of reproducing racial disadvantage and reiterating racial hierarchy in the post-Civil Rights Era.”
The recent state-level reforms should be understood against this backdrop as a reaction (albeit a limited one) to the yawning gap between the U.S. Supreme Court’s periodic pronouncements that racial exclusion in jury selection is “at war with our basic concepts of a democratic society and a representative government”
and the lived reality of its racial justice jurisprudence.
This trend is noteworthy on its own, but equally important is how these major criminal procedure reforms are occurring. In Arizona and nearly all the other states that have adopted new jury selection regimes, state supreme courts have not waited for their legislatures to pass new statutes; nor, in the ordinary course of deciding appeals, did they construe state or federal constitutions to require these new procedures. Rather, state supreme courts have increasingly turned to rulemaking, wielding their traditional authority to control matters of procedure through the promulgation of court rules.
Opponents have criticized the recent reforms not just as poor policy but also as examples of judicial overreach. Legislators in Arizona, for example, accused the Arizona Supreme Court of usurping their authority to determine substantive law in the state.
But nothing about these state supreme courts’ recent assertions of rulemaking power or the critiques is particularly novel: At various times over the past century, state judiciaries and legislatures have been in dialogue (and sometimes open conflict) over how the rules of American criminal procedure ought to be authored.
When thinking about what courts “do” nowadays—and, in particular, how they regulate criminal procedure—we have grown accustomed to privileging federal courts, federal constitutional doctrine, and the federal adjudicatory process. But for the vast majority of criminal defendants, rules promulgated by state supreme courts are often the primary force shaping not only jury selection but every aspect of their interaction with the adjudicatory system.
Indeed, in most jurisdictions in the United States, state supreme courts have long enjoyed broad authority under state constitutional law (sometimes supplemented by statutory delegations) to act as quasi-legislatures, drafting and promulgating procedural rules as they best see fit. Such rules govern everything from pretrial diversion programs
to the expungement of convictions,
and everything in between.
Perhaps it is unsurprising, then, that scholars and activists are beginning to think about judicial rulemaking as a vehicle for achieving reforms that constitutional litigation or legislative advocacy have failed to deliver. In recent years, scholars focused on ending mass incarceration and reducing racial disparities in criminal justice have begun to recognize the importance of rulemaking, urging courts to promulgate new rules allowing judges to dismiss cases “in the interest of justice”
or to expand discovery to allow easier detection of discriminatory policing patterns.
State supreme courts have recently begun “to address the problems associated with fees, fines, and bail” through rulemaking, as Professor Jane S. Schacter has observed.
Most notably, Professor Andrew Manuel Crespo has meticulously excavated how the subconstitutional state law of criminal procedure, encompassing both statutory law and court-promulgated rules, supplies a “hidden law” that “establishes the mechanisms and legal frameworks through which prosecutorial . . . power is generated and deployed” in the context of plea bargaining.
And it is not just scholars who are devoting renewed attention to the issue: In 2018, dissatisfaction over the Ohio Supreme Court’s failure to approve a proposed rule regarding plea bargaining spurred an insurgent candidate’s (successful) bid for a seat on the court.
But if the current wave of reform around the law of the jury is to continue or expand into other facets of criminal procedure, it is essential to take a more nuanced look at how judicial rulemaking actually operates. How many other state supreme courts could promulgate rules to overhaul the use of peremptory strikes, as Washington has done? Or eliminate them altogether, as in Arizona? What if an antagonistic legislature sought to undo such reforms?
The answer: It depends!
In some jurisdictions, the state supreme court’s authority to promulgate rules is expressly set forth in a state constitution; in others, it has been delegated by the legislature; in a few, it does not exist at all.
The rulemaking authority extends to all matters of civil and criminal procedure in many states; in a few jurisdictions, though, the state supreme court is barred from promulgating rules related to particular subject matter (e.g., juries).
As at the federal level, state supreme courts can typically promulgate “procedural” (as opposed to “substantive”) rules, but states have adopted idiosyncratic approaches to assessing the dividing line, or overlap, between the two realms.
And, perhaps most importantly, states have developed disparate approaches to resolving conflicts between the judiciary and the legislature: Rules trump statutes in some states, statutes trump rules in others, and in many jurisdictions the law is unclear.
This Article begins in Part I by placing the current explosion of rulemaking in historical perspective. A century ago, the legal profession’s leading luminaries and the ABA fought to assert the primacy of judicial rulemaking over legislative meddling, insisting that state supreme courts (re)assume their control over procedure.
The crowning achievement of these efforts was Congress’s passage of the Rules Enabling Act in 1934, but an even more robust version of judicial rulemaking expanded in state courts throughout the early twentieth century, too.
Often, rulemaking in the states looked very different than its federal counterpart: In the 1950s, the New Jersey Supreme Court declared the state legislature powerless to contradict its procedural rules, prompting prominent law reviews to devote full-length articles to the issue.
In more recent decades, state supreme courts and legislatures have occasionally engaged in open battles over rulemaking, ranging from disputes over bail in Florida
to “tort reform” in Arkansas.
Far from a novel innovation, the recent spate of reforms to peremptory strikes falls within a long tradition of conflict over rulemaking and the control of American criminal procedure.
Part II provides an assessment of the recent wave of state-level reforms to jury selection, a trend that contrasts sharply with the U.S. Supreme Court’s hands-off approach to the topic in recent decades. Beginning with the Washington Supreme Court’s promulgation of General Rule 37 in 2018, courts across the country have begun experimenting with various frameworks (or, in the case of Arizona, outright elimination of peremptory strikes) to better address racial exclusion, and more may soon follow suit.
As the Part explains, these efforts have built upon one another, with reformers and jurists looking to other jurisdictions as they have developed their own states’ models. This Article does not take a stance on the comparative merits of these reform efforts, but it does seek to surface a common feature of these projects: All have targeted the use of certain “race neutral” criteria in peremptory strikes, not just because such rationales might pretextually mask subjective bias but out of recognition that such exclusion can and does independently reinscribe racial subordination.
In displacing the (typically futile) search for an impermissible hidden purpose on the part of a strike’s proponent, the legal frameworks in these states now reject a central feature of Batson and our “colorblind” equal protection jurisprudence more generally.
The Article then zooms in, providing a detailed examination of how Arizona’s historic decision to give up on peremptory strikes came to pass. Part III offers a case study of judicial rulemaking in action, but it is also a case study of how a longstanding goal of racial justice advocates became law in a relatively improbable jurisdiction. Why did Arizona—with its staunchly conservative judiciary
—become the first to abolish peremptory strikes, a proposal most closely associated with Justice Thurgood Marshall?
As the Part explores, shortly after the tumultuous summer of 2020, when racial justice demonstrations prompted the governor to impose a statewide emergency curfew order, the Arizona Supreme Court had before it two dueling rule-change proposals related to jury selection. The first was a reform proposal, modeled after Washington and California’s measures; the second urged scrapping peremptory strikes altogether.
But over several months of debate, certain criticisms of the Washington-style reform proposal gained traction: With its aim of adapting Batson to account for “implicit, institutional, and unconscious biases”
—and its instruction to trial judges to determine whether “any reasonable person could view . . . race . . . as a[n] . . . unconscious factor” influencing a peremptory strike
—many judges came to see the Washington-style reform as “too woke.”
Elimination of peremptories, which promised more efficient trials and no such awkward inquiries into attorneys’ biases, eventually became the more attractive option.
Finally, in Part IV, the Article surveys the current lay of the land when it comes to state supreme courts’ rulemaking authority. While a comprehensive comparative analysis could fill a treatise, the Part focuses on peremptory strikes (and the possibility of other states following in the footsteps of Washington or Arizona) to explore where further reforms might be possible, and where they would stall. As the Part demonstrates, most state supreme courts currently have the power to substantially revamp how jury selection occurs, with several doing so not because their state constitutions require it but because such procedural reform would have a salutary effect on the administration of justice.
Somewhat fewer state supreme courts have the power to abolish peremptory strikes altogether, but Arizona is by no means exceptional: We assess that more than half of the country’s state supreme courts probably have such power.
The judiciary’s power to promulgate such rules in the first instance does not imply full supremacy over the legislature, however, so Part IV concludes by exploring how rule-based reforms might fare in the face of legislative pushback. A brief Conclusion considers the implications of the foregoing for criminal procedure reform moving forward, particularly in a moment when racial justice movements have centered ways in which “our criminal legal system itself . . . yields forms of domination and violence.”
While the judicial rulemaking authority of state supreme courts has been (we argue) underappreciated and understudied, this Article fits within several bourgeoning literatures. First, we join a growing group of scholars who contend that state courts warrant greater attention than they typically receive.
A focus on issues affecting state courts is both important in its own right and can usefully inform our thinking about analogous issues at the federal level.
Second, and relatedly, the Article’s focus on the intricacies of state-level rulemaking in particular is part of a shift away from larger constitutional-doctrinal or normative questions in criminal law scholarship and toward a focus on the criminal law’s real-world operation.
State courts are, of course, “where the overwhelming bulk of criminal prosecutions actually take place.”
And in this domain, beyond the dominance of the “two familiar legal pillars of the American criminal justice system—substantive and constitutional criminal law— . . . lies a third, unseen but essential body of law.”
This Article explores in more granular detail how a core feature of this subconstitutional law—state judicial rulemaking—operates when it comes to race, the jury, and criminal procedure today (and perhaps tomorrow).