545 US 162 Johnson v California

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Case TextOCTOBER TERM, 2004

Syllabus

JOHNSON v. CALIFORNIA

certiorari to the court of appeal of california, first
appellate district

No. 04—6964. Argued April 18, 2005–Decided June 13, 2005

Petitioner Johnson, a black man, was convicted in a California state court
of assaulting and murdering a white child. During jury selection, a
number of prospective jurors were removed for cause until 43 eligible
jurors remained, three of whom were black. The prosecutor used 3 of
his 12 peremptory challenges to remove the prospective black jurors,
resulting in an all-white jury. Defense counsel objected to those strikes
on the ground that they were unconstitutionally based on race. The
trial judge did not ask the prosecutor to explain his strikes, but instead
simply found that petitioner had failed to establish a prima facie case of
purposeful discrimination under the governing state precedent, People

v. Wheeler, which required a showing of a strong likelihood that the
exercise of peremptory challenges was based on group bias. The judge
explained that, although the case was close, her review of the record
convinced her that the prosecutor’s strikes could be justified by raceneutral
reasons. The California Court of Appeal set aside the conviction,
but the State Supreme Court reinstated it, stressing that Batson
v. Kentucky, 476 U. S. 79, permits state courts to establish the standards
used to evaluate the sufficiency of prima facie cases of purposeful discrimination
in jury selection. Reviewing Batson, Wheeler, and their
progeny, the court concluded that Wheeler’s “strong likelihood” standard
is entirely consistent with Batson. Under Batson, the court held, a
state court may require the objector to present not merely enough evidence
to permit an inference that discrimination has occurred, but sufficiently
strong evidence to establish that the challenges, if not explained,
were more likely than not based on race. Applying that standard, the
court acknowledged that the exclusion of all three black prospective
jurors looked suspicious, but deferred to the trial judge’s ruling.

Held: California’s “more likely than not” standard is an inappropriate
yardstick by which to measure the sufficiency of a prima facie case of
purposeful discrimination in jury selection. This narrow but important
issue concerns the scope of the first of three steps Batson enumerated:

(1) Once the defendant has made out a prima facie case and (2) the State
has satisfied its burden to offer permissible race-neutral justifications
for the strikes, e. g., 476 U. S., at 94, then (3) the trial court must decide
whether the defendant has proved purposeful racial discrimination,

Syllabus

Purkett v. Elem, 514 U. S. 765 (per curiam). Batson does not permit
California to require at step one that the objector show that it is more
likely than not the other party’s peremptory challenges, if unexplained,
were based on impermissible group bias. The Batson Court held that
a prima facie case can be made out by offering a wide variety of evidence,
so long as the sum of the proffered facts gives “rise to an inference
of discriminatory purpose.” 476 U. S., at 94. The Court explained
that to establish a prima facie case, the defendant must show
that his membership in a cognizable racial group, the prosecutor’s exercise
of peremptory challenges to remove members of that group, the
indisputable fact that such challenges permit those inclined to discriminate
to do so, and any other relevant circumstances raise an inference
that the prosecutor excluded venire members on account of race. Id.,
at 96. The Court assumed that the trial judge would have the benefit
of all relevant circumstances, including the prosecutor’s explanation, before
deciding whether it was more likely than not that the peremptory
challenge was improperly motivated. The Court did not intend the first
step to be so onerous that a defendant would have to persuade the
judge–on the basis of all the facts, some of which are impossible for
the defendant to know with certainty–that the challenge was more
likely than not the product of purposeful discrimination. Instead, a defendant
satisfies Batson’s first step requirements by producing evidence
sufficient to permit the trial judge to draw an inference that discrimination
has occurred. The facts of this case illustrate that California’s
standard is at odds with the prima facie inquiry mandated by Batson.
The permissible inferences of discrimination, which caused the trial
judge to comment that the case was close and the California Supreme
Court to acknowledge that it was suspicious that all three black prospective
jurors were removed, were sufficient to establish a prima facie
case. Pp. 168—173.

Reversed and remanded.

Stevens, J., delivered the opinion of the Court, in which Rehnquist,

C. J., and O’Connor, Scalia, Kennedy, Souter, Ginsburg, and
Breyer, JJ., joined. Breyer, J., filed a concurring opinion, post, p. 173.
Thomas, J., filed a dissenting opinion, post, p. 173.

Stephen B. Bedrick, by appointment of the Court, 543 U. S.

1143, argued the cause for petitioner. With him on the

briefs was Eric Schnapper.

Seth K. Schalit, Supervising Deputy Attorney General of
California, argued the cause for respondent. With him on

Opinion of the Court

the brief were Bill Lockyer, Attorney General, Robert R.
Anderson, Chief Assistant Attorney General, Gerald A.
Engler, Senior Assistant Attorney General, and Laurence

K. Sullivan, Supervising Deputy Attorney General.*

Justice Stevens delivered the opinion of the Court.

The Supreme Court of California and the United States
Court of Appeals for the Ninth Circuit have provided conflicting
answers to the following question: “Whether to establish
a prima facie case under Batson v. Kentucky, 476

U. S. 79 (1986), the objector must show that it is more likely
than not that the other party’s peremptory challenges, if unexplained,
were based on impermissible group bias?” Pet.
for Cert. i. Because both of those courts regularly review
the validity of convictions obtained in California criminal
trials, respondent, the State of California, agreed to petitioner’s
request that we grant certiorari and resolve the conflict.
We agree with the Ninth Circuit that the question presented
must be answered in the negative, and accordingly reverse
the judgment of the California Supreme Court.

I
Petitioner Jay Shawn Johnson, a black male, was convicted
in a California trial court of second-degree murder and assault
on a white 19-month-old child, resulting in death.
During jury selection, a number of prospective jurors were
removed for cause until 43 eligible jurors remained, 3 of
whom were black. The prosecutor used 3 of his 12 peremptory
challenges to remove the black prospective jurors. The
resulting jury, including alternates, was all white.

*Theodore M. Shaw, Norman J. Chachkin, Miriam Gohara, Christina

A. Swarns, Steven R. Shapiro, Alan L. Schlosser, Pamela Harris, Barbara
R. Arnwine, Michael L. Foreman, Audrey Wiggins, Sarah Crawford,
and Barry Sullivan filed a brief for the NAACP Legal Defense and Educational
Fund, Inc., et al. as amici curiae urging reversal.

Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal
Justice Legal Foundation as amicus curiae urging affirmance.

Opinion of the Court

After the prosecutor exercised the second of his three peremptory
challenges against the prospective black jurors, defense
counsel objected on the ground that the challenge was
unconstitutionally based on race under both the California
and United States Constitutions. People v. Johnson, 30 Cal.
4th 1302, 1307, 71 P. 3d 270, 272—273 (2003).1 Defense counsel
alleged that the prosecutor “had no apparent reason to
challenge this prospective juror ‘other than [her] racial identity.’
” Ibid. (alteration in original). The trial judge did not
ask the prosecutor to explain the rationale for his strikes.
Instead, the judge simply found that petitioner had failed
to establish a prima facie case under the governing state
precedent, People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748
(1978), reasoning “‘that there’s not been shown a strong likelihood
that the exercise of the peremptory challenges were
based upon a group rather than an individual basis,’ ” 30 Cal.
4th, at 1307, 71 P. 3d, at 272 (emphasis added). The judge
did, however, warn the prosecutor that “ ‘we are very close.’ ”
People v. Johnson, 105 Cal. Rptr. 2d 727, 729 (Ct. App. 2001).

Defense counsel made an additional motion the next day
when the prosecutor struck the final remaining prospective
black juror. 30 Cal. 4th, at 1307, 71 P. 3d, at 272. Counsel
argued that the prosecutor’s decision to challenge all of the
prospective black jurors constituted a “systematic attempt
to exclude African-Americans from the jury panel.” 105
Cal. Rptr. 2d, at 729. The trial judge still did not seek an
explanation from the prosecutor. Instead, she explained
that her own examination of the record had convinced her
that the prosecutor’s strikes could be justified by raceneutral
reasons. Specifically, the judge opined that the
black venire members had offered equivocal or confused answers
in their written questionnaires. 30 Cal. 4th, at 1307—
1308, 71 P. 3d, at 272—273. Despite the fact that “‘the Court
would not grant the challenges for cause, there were an

1Petitioner’s state objection was made under People v. Wheeler, 22 Cal.
3d 258, 583 P. 2d 748 (1978).

Opinion of the Court

swers . . . at least on the questionnaires themselves [such]
that the Court felt that there was sufficient basis’ ” for the
strikes. Id., at 1308, 71 P. 3d, at 273 (brackets added).
Therefore, even considering that all of the prospective black
jurors had been stricken from the pool, the judge determined
that petitioner had failed to establish a prima facie case.

The California Court of Appeal set aside the conviction.
People v. Johnson, 105 Cal. Rptr. 2d 727 (2001). Over the
dissent of one judge, the majority ruled that the trial judge
had erred by requiring petitioner to establish a “strong likelihood”
that the peremptory strikes had been impermissibly
based on race. Instead, the trial judge should have only required
petitioner to proffer enough evidence to support an
“inference” of discrimination.2 The Court of Appeal’s holding
relied on decisions of this Court, prior California case
law, and the decision of the United States Court of Appeals
for the Ninth Circuit in Wade v. Terhune, 202 F. 3d 1190
(2000). Applying the proper “reasonable inference” standard,
the majority concluded that petitioner had produced sufficient
evidence to support a prima facie case.

Respondent appealed, and the California Supreme Court
reinstated petitioner’s conviction over the dissent of two justices.
The court stressed that Batson v. Kentucky, 476 U. S.
79 (1986), left to state courts the task of establishing the
standards used to evaluate the sufficiency of defendants’
prima facie cases. 30 Cal. 4th, at 1314, 71 P. 3d, at 277. The
court then reviewed Batson, Wheeler, and those decisions’
progeny, and concluded that “Wheeler’s terms ‘strong likelihood’
and ‘reasonable inference’ state the same standard”–
one that is entirely consistent with Batson. 30 Cal. 4th, at
1313, 71 P. 3d, at 277. A prima facie case under Batson es

2 In reaching this holding, the Court of Appeal rejected the notion that
a showing of a “ ‘strong likelihood’ ” is equivalent to a “ ‘reasonable inference.’
” To conclude so would “be as novel a proposition as the idea that
‘clear and convincing evidence’ has always meant a ‘preponderance of the
evidence.’ ” 105 Cal. Rptr. 2d, at 733.

Opinion of the Court

tablishes a “ ‘legally mandatory, rebuttable presumption,’ ” it
does not merely constitute “enough evidence to permit the
inference” that discrimination has occurred. 30 Cal. 4th, at
1315, 71 P. 3d, at 278. Batson, the court held, “permits a
court to require the objector to present, not merely ‘some
evidence’ permitting the inference, but ‘strong evidence’ that
makes discriminatory intent more likely than not if the challenges
are not explained.” 30 Cal. 4th, at 1316, 71 P. 3d, at

278. The court opined that while this burden is “not onerous,”
it remains “substantial.” Ibid., 71 P. 3d, at 279.

Applying that standard, the court acknowledged that the
case involved the “highly relevant” circumstance that a black
defendant was “charged with killing ‘his White girlfriend’s
child,’ ” and that “it certainly looks suspicious that all three
African-American prospective jurors were removed from the
jury.” Id., at 1326, 71 P. 3d, at 286. Yet petitioner’s Batson
showing, the court held, consisted “primarily of the statistical
disparity of peremptory challenges between African-
Americans and others.” 30 Cal. 4th, at 1327, 71 P. 3d, at

287. Although those statistics were indeed “troubling and,
as the trial court stated, the question was close,” id., at 1328,
71 P. 3d, at 287, the court decided to defer to the trial judge’s
“carefully considered ruling.” Ibid.3 We granted certiorari,
but dismissed the case for want of jurisdiction because
the judgment was not yet final. Johnson v. California, 541

U. S. 428 (2004) (per curiam). After the California Court

3 In dissent, Justice Kennard argued that “[r]equiring a defendant to
persuade the trial court of the prosecutor’s discriminatory purpose at the
first Wheeler-Batson stage short-circuits the process, and provides inadequate
protection for the defendant’s right to a fair trial . . . .” 30 Cal. 4th,
at 1333, 71 P. 3d, at 291. The proper standard for measuring a prima facie
case under Batson is whether the defendant has identified actions by the
prosecutor that, “if unexplained, permit a reasonable inference of an improper
purpose or motive.” 30 Cal. 4th, at 1339, 71 P. 3d, at 294. Trial
judges, Justice Kennard argued, should not speculate when it is not “apparent
that the [neutral] explanation was the true reason for the challenge.”
Id., at 1340, 71 P. 3d, at 295.

168 JOHNSON v. CALIFORNIA

Opinion of the Court

of Appeal decided the remaining issues, we again granted
certiorari. 543 U. S. 1042 (2005).

II

The issue in this case is narrow but important. It concerns
the scope of the first of three steps this Court enumerated
in Batson, which together guide trial courts’ constitutional
review of peremptory strikes. Those three Batson
steps should by now be familiar. First, the defendant must
make out a prima facie case “by showing that the totality of
the relevant facts gives rise to an inference of discriminatory
purpose.” 476 U. S., at 93—94 (citing Washington v. Davis,
426 U. S. 229, 239—242 (1976)).4 Second, once the defendant
has made out a prima facie case, the “burden shifts to the
State to explain adequately the racial exclusion” by offering
permissible race-neutral justifications for the strikes. 476

U. S., at 94; see also Alexander v. Louisiana, 405 U. S.
625, 632 (1972). Third, “[i]f a race-neutral explanation is
tendered, the trial court must then decide . . . whether the
opponent of the strike has proved purposeful racial discrimination.”
Purkett v. Elem, 514 U. S. 765, 767 (1995) (per
curiam).

The question before us is whether Batson permits California
to require at step one that “the objector must show that
it is more likely than not the other party’s peremptory challenges,
if unexplained, were based on impermissible group
bias.” 30 Cal. 4th, at 1318, 71 P. 3d, at 280. Although we
recognize that States do have flexibility in formulating appropriate
procedures to comply with Batson, we conclude
that California’s “more likely than not” standard is an inappropriate
yardstick by which to measure the sufficiency of a
prima facie case.

4 An “inference” is generally understood to be a “conclusion reached by
considering other facts and deducing a logical consequence from them.”
Black’s Law Dictionary 781 (7th ed. 1999).

Opinion of the Court

We begin with Batson itself, which on its own terms provides
no support for California’s rule. There, we held that
a prima facie case of discrimination can be made out by offering
a wide variety of evidence,5 so long as the sum of the
proffered facts gives “rise to an inference of discriminatory
purpose.” 476 U. S., at 94. We explained:

“[A] defendant may establish a prima facie case of purposeful
discrimination in selection of the petit jury solely
on evidence concerning the prosecutor’s exercise of peremptory
challenges at the defendant’s trial. To establish
such a case, the defendant first must show that he
is a member of a cognizable racial group, and that the
prosecutor has exercised peremptory challenges to remove
from the venire members of the defendant’s race.
Second, the defendant is entitled to rely on the fact, as
to which there can be no dispute, that peremptory challenges
constitute a jury selection practice that permits
‘those to discriminate who are of a mind to discriminate.’
Finally, the defendant must show that these facts and
any other relevant circumstances raise an inference that
the prosecutor used that practice to exclude the veniremen
from the petit jury on account of their race.” Id.,
at 96 (quoting Avery v. Georgia, 345 U. S. 559, 562 (1953);
citations omitted).

Indeed, Batson held that because the petitioner had timely
objected to the prosecutor’s decision to strike “all black persons
on the venire,” the trial court was in error when it

5 In Batson, we spoke of the methods by which prima facie cases could
be proved in permissive terms. A defendant may satisfy his prima facie
burden, we said, “by relying solely on the facts concerning [the selection
of the venire] in his case.” 476 U. S., at 95 (emphasis in original). We
declined to require proof of a pattern or practice because “ ‘[a] single invidiously
discriminatory governmental act’ is not ‘immunized by the absence
of such discrimination in the making of other comparable decisions.’ ”
Ibid. (quoting Arlington Heights v. Metropolitan Housing Development
Corp., 429 U. S. 252, 266, n. 14 (1977)).

Opinion of the Court

“flatly rejected the objection without requiring the prosecutor
to give an explanation for his action.” 476 U. S., at 100.
We did not hold that the petitioner had proved discrimination.
Rather, we remanded the case for further proceedings
because the trial court failed to demand an explanation from
the prosecutor–i. e., to proceed to Batson’s second step–
despite the fact that the petitioner’s evidence supported an
inference of discrimination. Ibid.

Thus, in describing the burden-shifting framework, we assumed
in Batson that the trial judge would have the benefit
of all relevant circumstances, including the prosecutor’s explanation,
before deciding whether it was more likely than
not that the challenge was improperly motivated. We did
not intend the first step to be so onerous that a defendant
would have to persuade the judge–on the basis of all the
facts, some of which are impossible for the defendant to know
with certainty–that the challenge was more likely than not
the product of purposeful discrimination. Instead, a defendant
satisfies the requirements of Batson’s first step by producing
evidence sufficient to permit the trial judge to draw
an inference that discrimination has occurred.

Respondent, however, focuses on Batson’s ultimate sentence:
“If the trial court decides that the facts establish,
prima facie, purposeful discrimination and the prosecutor
does not come forward with a neutral explanation for his
action, our precedents require that petitioner’s conviction be
reversed.” Ibid. For this to be true, respondent contends,
a Batson claim must prove the ultimate facts by a preponderance
of the evidence in the prima facie case; otherwise,
the argument goes, a prosecutor’s failure to respond to a
prima facie case would inexplicably entitle a defendant to
judgment as a matter of law on the basis of nothing more
than an inference that discrimination may have occurred.
Brief for Respondent 13—18.

Respondent’s argument is misguided. Batson, of course,
explicitly stated that the defendant ultimately carries the

Opinion of the Court

“burden of persuasion” to “ ‘prove the existence of purposeful
discrimination.’ ” 476 U. S., at 93 (quoting Whitus v.
Georgia, 385 U. S. 545, 550 (1967)). This burden of persuasion
“rests with, and never shifts from, the opponent of the
strike.” Purkett, 514 U. S., at 768. Thus, even if the State
produces only a frivolous or utterly nonsensical justification
for its strike, the case does not end–it merely proceeds to
step three. Ibid.6 The first two Batson steps govern the
production of evidence that allows the trial court to determine
the persuasiveness of the defendant’s constitutional
claim. “It is not until the third step that the persuasiveness
of the justification becomes relevant–the step in which the
trial court determines whether the opponent of the strike
has carried his burden of proving purposeful discrimination.”
Purkett, 514 U. S., at 768.7

Batson’s purposes further support our conclusion. The
constitutional interests Batson sought to vindicate are not

6 In the unlikely hypothetical in which the prosecutor declines to respond
to a trial judge’s inquiry regarding his justification for making a
strike, the evidence before the judge would consist not only of the original
facts from which the prima facie case was established, but also the prosecutor’s
refusal to justify his strike in light of the court’s request. Such a
refusal would provide additional support for the inference of discrimination
raised by a defendant’s prima facie case. Cf. United States ex rel.
Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 111 (1927).

7 This explanation comports with our interpretation of the burdenshifting
framework in cases arising under Title VII of the Civil Rights
Act of 1964. See, e. g., Furnco Constr. Corp. v. Waters, 438 U. S. 567, 577
(1978) (noting that the McDonnell Douglas Corp. v. Green, 411 U. S. 792
(1973), framework “is merely a sensible, orderly way to evaluate the evidence
in light of common experience as it bears on the critical question of
discrimination”); see also St. Mary’s Honor Center v. Hicks, 509 U. S. 502,
509—510, and n. 3 (1993) (holding that determinations at steps one and two
of the McDonnell Douglas framework “can involve no credibility assessment”
because “the burden-of-production determination necessarily
precedes the credibility-assessment stage,” and that the burden-shifting
framework triggered by a defendant’s prima face case is essentially just
“a means of ‘arranging the presentation of evidence’ ” (quoting Watson v.
Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988))).

Opinion of the Court

limited to the rights possessed by the defendant on trial, see
476 U. S., at 87, nor to those citizens who desire to participate
“in the administration of the law, as jurors,” Strauder v. West
Virginia, 100 U. S. 303, 308 (1880). Undoubtedly, the overriding
interest in eradicating discrimination from our civic
institutions suffers whenever an individual is excluded from
making a significant contribution to governance on account
of his race. Yet the “harm from discriminatory jury selection
extends beyond that inflicted on the defendant and the
excluded juror to touch the entire community. Selection
procedures that purposefully exclude black persons from juries
undermine public confidence in the fairness of our system
of justice.” Batson, 476 U. S., at 87; see also Smith v.
Texas, 311 U. S. 128, 130 (1940) (“For racial discrimination to
result in the exclusion from jury service of otherwise qualified
groups not only violates our Constitution and the laws
enacted under it but is at war with our basic concepts of a
democratic society and a representative government” (footnote
omitted)).

The Batson framework is designed to produce actual answers
to suspicions and inferences that discrimination may
have infected the jury selection process. See 476 U. S., at
97—98, and n. 20. The inherent uncertainty present in inquiries
of discriminatory purpose counsels against engaging
in needless and imperfect speculation when a direct answer
can be obtained by asking a simple question. See Paulino

v. Castro, 371 F. 3d 1083, 1090 (CA9 2004) (“[I]t does not
matter that the prosecutor might have had good reasons...[;]
[w]hat matters is the real reason they were
stricken” (emphasis deleted)); Holloway v. Horn, 355 F. 3d
707, 725 (CA3 2004) (speculation “does not aid our inquiry
into the reasons the prosecutor actually harbored” for a peremptory
strike). The three-step process thus simultaneously
serves the public purposes Batson is designed to vindicate
and encourages “prompt rulings on objections to
peremptory challenges without substantial disruption of the

Thomas, J., dissenting

jury selection process.” Hernandez v. New York, 500 U. S.
352, 358—359 (1991) (opinion of Kennedy, J.).

The disagreements among the state-court judges who reviewed
the record in this case illustrate the imprecision of
relying on judicial speculation to resolve plausible claims of
discrimination. In this case the inference of discrimination
was sufficient to invoke a comment by the trial judge “that
‘we are very close,’ ” and on review, the California Supreme
Court acknowledged that “it certainly looks suspicious that
all three African-American prospective jurors were removed
from the jury.” 30 Cal. 4th, at 1307, 1326, 71 P. 3d, at 273,

286. Those inferences that discrimination may have occurred
were sufficient to establish a prima facie case under

Batson.

The facts of this case well illustrate that California’s “more
likely than not” standard is at odds with the prima facie inquiry
mandated by Batson. The judgment of the California
Supreme Court is therefore reversed, and the case is remanded
for further proceedings not inconsistent with this
opinion.

It is so ordered

Justice Breyer, concurring.

I join the Court’s opinion while maintaining here the views
I set forth in my concurring opinion in Miller-El v. Dretke,
post, p. 266.

Justice Thomas, dissenting.

The Court says that States “have flexibility in formulating
appropriate procedures to comply with Batson [v. Kentucky,
476 U. S. 79 (1986)],” ante, at 168, but it then tells California
how to comply with “the prima facie inquiry mandated by
Batson,” ante this page. In Batson itself, this Court disclaimed
any intent to instruct state courts on how to implement
its holding. 476 U. S., at 99 (“We decline, however, to
formulate particular procedures to be followed upon a de

Thomas, J., dissenting

fendant’s timely objection to a prosecutor’s challenges”); id.,
at 99—100, n. 24. According to Batson, the Equal Protection
Clause requires that prosecutors select juries based on factors
other than race–not that litigants bear particular burdens
of proof or persuasion. Because Batson’s burdenshifting
approach is “a prophylactic framework” that polices
racially discriminatory jury selection rather than “an independent
constitutional command,” Pennsylvania v. Finley,
481 U. S. 551, 555 (1987), States have “wide discretion, subject
to the minimum requirements of the Fourteenth Amendment,
to experiment with solutions to difficult problems of
policy,” Smith v. Robbins, 528 U. S. 259, 273 (2000); Dickerson
v. United States, 530 U. S. 428, 438—439 (2000). California’s
procedure falls comfortably within its broad discretion
to craft its own rules of criminal procedure, and I therefore
respectfully dissent.

545 U.S. 162 - Johnson v California

545 US 162 Johnson v California

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