Batson’s Appellate Appeal and Trial Tribulations

55 Pages Posted: 31 May 2018

See all articles by Jonathan Abel

Jonathan Abel

Stanford Law School - Constitutional Law Center

Date Written: May 1, 2018


Batson v. Kentucky is widely regarded as a failure. In the thirty-plus years since it was decided by the Supreme Court, the doctrine has been subjected to unrelenting criticism for its inability to stop the dis­criminatory use of peremptory challenges. The scholarly literature is nearly unanimous: Batson is broken. But this Article approaches Batson from a different perspective, focusing on Batson’s appellate virtues rather than its trial shortcomings. This change in focus reveals a number of ways in which the Batson doctrine provides opportunities on appeal that do not exist at trial. In short, this Article argues that appellate Batson punches far above its trial weight.

Batson’s appellate virtues have been overlooked by the literature, and this Article’s first task is to illustrate them. This Article’s second project is to reorient the discussion about Batson by placing the doctrine in the proper context. In comparison to other antidiscrimination claims—and to other postconviction claims, more broadly—Batson has a real luster. Though not often acknowledged as such, Batson is the one meaningful doctrine for fighting discrimination in the jury-selection process and in the criminal justice system more generally. Enormous pressure is put on Batson as a result, and maybe Batson is not up to the task. But with Batson’s appellate dimension, the doctrine is more up to the task than previously thought. This Article’s final goal, in light of Batson’s appellate virtues, is to suggest a reconceptualization of Batson as not merely a jury-selection doctrine but rather a multi­purpose vehicle capable of fighting discrimination wherever it occurs in the trial pro­cess—even if the discrimination takes place outside of jury selection. For appellate judges who want to correct the injustice of a trial stained by discrimination, a broad-based Batson doctrine may be their best, last, and only hope.

Suggested Citation

Abel, Jonathan, Batson’s Appellate Appeal and Trial Tribulations (May 1, 2018). Columbia Law Review, Vol. 118, No. 3, 713. Available at SSRN:

Jonathan Abel (Contact Author)

Stanford Law School - Constitutional Law Center ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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