abstract. Scholars have repeatedly found that prosecutors strike Black prospective jurors at disproportionately high rates, thereby violating the Fourteenth Amendment rights of both the excluded jurors and the people on trial. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Supreme Court appeared to redefine what constitutes an equal-protection violation—the use of race as a factor in a selection process, no matter how minor. This Essay argues that the new standard the Court established in SFFA should be applied to race discrimination in jury selection. Since SFFA purports to reflect the current Court’s view of the Equal Protection Clause, SFFA may present a new avenue for challenging racially biased jury selection.

Introduction

Racial disparities pervade the U.S. criminal legal system. State actors disproportionately target and harm Black Americans at every stage of the criminal process: police stop Black Americans at higher rates, prosecutors charge Black Americans with more serious crimes, and judges sentence Black Americans to longer prison terms.1

Scholars have observed that jury selection is one of the many processes often infected by race discrimination.2 In April 2024, a federal judge ordered a district attorney in California to review thirty-five death-penalty sentences after evidence emerged that the office had intentionally excluded Black and Jewish prospective jurors from sitting on juries in capital cases in the 1990s, a practice that violated the U.S. Supreme Court’s landmark ruling in Batson v. Kentucky.3 Just one month later, the Court of Criminal Appeals of Alabama restricted courts’ ability to review claims about race discrimination during jury selection, likely reacting to the frequency of such claims.4 Scholars have repeatedly found that prosecutors strike Black prospective jurors at disproportionately high rates and that white jurors are significantly more likely to impose a death sentence when the defendant is Black.5 Excluding Black prospective jurors from criminal trials violates the Fourteenth Amendment rights of both the excluded jurors and the people on trial.6

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA),7 the Supreme Court appeared to take a novel approach to what constitutes a Fourteenth Amendment violation, opening a new avenue for challenging racially biased jury selection. In SFFA, the Court found that the “race-conscious” college-admissions processes used by Harvard and the University of North Carolina (UNC) violated the Equal Protection Clause of the Fourteenth Amendment.8 Many scholars have rightly criticized the Court’s reasoning in SFFA.9 Some have identified ways in which SFFA appears to be at odds with standard conservative views about race that the Court has articulated in the past.10 Such critiques are crucial to understanding and challenging the Roberts Court’s view of equality in education.

In another area of law, however, SFFA might present an unexpected opportunity. A careful examination of the reasoning in SFFA demonstrates that the Court put forward a substantively new understanding of what can constitute a Fourteenth Amendment violation—the use of race as a factor in a selection process, no matter how minor. Though there are many ways in which college admissions and criminal cases are disanalogous, in both contexts the Court has relied on the Fourteenth Amendment’s Equal Protection Clause to regulate the use of race in a selection process, whether for a spot at an elite university or for a spot on a jury. Since SFFA purports to reflect the current Court’s view of the Equal Protection Clause, perhaps it can be put to good use to challenge race discrimination in other arenas.

In this Essay, I argue that SFFA’s new standard for equal-protection violations should be applied to race discrimination in jury selection. In Part I, I describe how the Court’s argument in SFFA about the use of race as a “negative” reveals a significant departure from traditional equal-protection doctrine, one that ultimately establishes a more searching standard. In Part II, I explain how the standard for what constitutes race discrimination in jury selection has evolved from the Court’s 1986 Batson decision to the present. Finally, in Part III, I contend that the Court’s more protective rule in SFFA should be applied to claims of race discrimination in jury selection. I end by exploring the implications of these arguments for assessing future Batson claims.

I. sffa’s new standard

In SFFA, the Court held that Harvard’s and UNC’s admissions programs violated the Equal Protection Clause because the programs used race as a “negative” or “stereotype” in their admissions processes.11 The Court’s earlier landmark affirmative-action cases, Regents of the University of California v. Bakke and Grutter v. Bollinger, also grappled with the constitutionality of using race in admissions processes.12 In both Bakke and Grutter, however, the Court held that using race as one of multiple factors in an admissions process could be constitutional.

In Bakke, Justice Powell, who authored the Court’s opinion, argued that the university’s admissions policy setting aside sixteen out of one hundred seats per year for minority students was unconstitutional.13 But Powell reversed the lower court’s decision that any consideration of race was unconstitutional. Instead, race could be considered as “one element—to be weighed fairly against other elements—in the selection process.”14 Though Bakke had a splintered majority, it is clear that the four Justices who concurred in the judgment agreed with Powell on this point. Justice Brennan, joined by three other Justices, stated that “Mr. Justice Powell agrees that some uses of race in university admissions are permissible and, therefore, he joins with us to make five votes reversing the judgment below insofar as it prohibits the University from establishing race-conscious programs in the future.”15 Despite the many disagreements among the Justices about the permissible aims of affirmative-action programs, a five-Justice majority held that race could be used as a factor.

Twenty-five years later, in Grutter, the Court again held that race could be used as a factor in an admissions process. In Grutter, the plaintiff argued that the University of Michigan Law School used race as a “predominant” factor, which gave minority students a “significantly greater chance of admission than students with similar credentials from disfavored racial groups.”16 The Supreme Court held that universities can “consider race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.”17 The Court further explained that race was permissible as a potential “plus” factor in University of Michigan Law School admissions, just as it was in the Harvard admissions program that Justice Powell praised in Bakke.18

In SFFA, the Court effectively overturned the precedent set in Bakke and Grutter.19 The Court reasoned that, because Harvard admitted to using race as a “plus” and because, according to the Court, college admissions is a “zero-sum” process, race must have been used as a “negative” in the college-admissions processes.20

To demonstrate how the admissions processes used race as a “negative,” the Court presented the following reasoning. In its brief, Harvard stated that race is only used as a “plus” and never as a “negative,” in the same way that excelling at a musical instrument is a “plus” for some applicants but not a “negative” for others.21 The Court then drew an analogy between musical talents and high test scores and grades. Since admissions is a zero-sum process, the Court reasoned, it would be ridiculous to describe high grades and test scores as a “plus” for some applicants but not as a “negative” for applicants without high grades and test scores.22 In other words, “[a] benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”23 Thus, if race is used as a “plus” for one applicant, race must necessarily be a “negative” for other applicants. The Court concluded that Harvard’s admissions program used race as a “negative” in violation of the Fourteenth Amendment.24

Though the Court’s reasoning here may appear straightforward, several assumptions animate the zero-sum argument. It is therefore helpful to reconstruct the Court’s argument to clarify the contours of the reasoning. Harvard only said that race and musical talent are never used as a “negative”—not that grades and test scores are never used as a “negative.” The Court, not Harvard, supplied a further assumption: since college admissions is a zero-sum process, any factor that is considered a “plus” must necessarily also be used as a “negative” for other applicants. Thus, every factor, no matter how minor, is a “negative” for every applicant without that factor.25 Since the Court took the view that all factors necessarily operate as a “negative” for some applicants in a zero-sum process, the Court objected to any use of race at all: no matter how minor the consideration or specific the categorization, race cannot play a role. The Court’s view is that admissions programs can consider everything from grades to oboe-playing skills, but not race in any way.

It may seem as though the Court is only concerned with admissions programs that use race as a determinative factor. But a closer look reveals that the Court’s concern is really an objection to the use of race as a factor in any way. In SFFA, the Court described the last stage of Harvard’s admissions process as follows:

The final stage of Harvard’s process is called the “lop,” during which the list of tentatively admitted students is winnowed further to arrive at the final class. Any applicants that Harvard considers cutting at this stage are placed on a “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. The full committee decides as a group which students to lop. In doing so, the committee can and does take race into account. Once the lop process is complete, Harvard’s admitted class is set.26

Referring to the “lop” stage of Harvard’s process, the Court stated that “race is determinative for at least some—if not many—of the students they admit.”27 Though in other contexts the term “determinative” typically refers to the weight of a given factor, here the Court seemed to be referring to something that makes or breaks a decision. The Court’s concern was that race becomes the factor that pushes the applicant into the admit pile, thus “determining” the outcome of that application. If race moves an on-the-fence application into the admit pile—and others are left behind only because they are not of that race—then race is being used as a “negative” for those left behind.28

But the Court’s concern about race as a “tip” does not require that race be a primary, or even significant, reason that a given applicant is ultimately accepted. To get to the “lop” stage, the admissions officers have already considered the student’s test scores, grades, extracurricular activities, letters of recommendations, and more—the “non-race-based” factors. In other words, all of the “non-race-based” factors in one application may stack up to just barely cross the line into the admit pile. One interpretation of the Court’s view is that race is prohibited as the last factor, since the last factor considered in every individual case is “determinative” of the outcome. It would be odd, however, for the Court to find “race-conscious” admissions unconstitutional only when race is the last factor considered in certain cases. Indeed, the Court describes the entire admissions processes at Harvard and UNC, not just the last stages.

More plausibly, the Court’s view is that every factor is “determinative” in cases where the application barely crossed into the admit pile. If any one factor was removed at any point in the process, the applicant likely would not have made it onto the admit list. Thus, if race is a factor at any point in the process, then race (along with every other “non-race-based” factor) becomes a “determinative” factor in a close case. Because the process is zero-sum, as the Court argued, any “plus” given to one applicant is necessarily a “negative” for all other applicants. If race, like every other factor, is “determinative” in a close case, it must also be a “negative” in all other cases not awarded that “plus.” Thus, the Court’s concern about the use of race is not limited to close cases.29

This understanding aligns with Justice Gorsuch’s articulation of the standard in his concurrence. Gorsuch emphasized that, although “universities consider many non-racial factors in their admissions processes,” the law prohibits “intentionally treating any individual worse even in part because of his race.”30 Thus, the Court’s concern about race as a “determinative” factor is still an objection to any consideration of race, no matter how minor.31

This reading of SFFA appears to be consistent with how universities subsequently changed their admissions programs to conform with their understanding of what SFFA required. Across the country, programs stopped using race “check boxes,” meaning an application question where an applicant could indicate their race.32 The elimination of these “check boxes” suggests that universities understood SFFA to ban the use of race altogether.33 In the next Part, I lay out the Court’s evolving standard for the extent to which race can be used in jury selection and how it compares to the standard used by the Court in SFFA.

II. race as a “factor” in batson challenges

SFFA suggests that race as a factor, no matter how minor, taints the entire decision process in college admissions. This is contrary to how courts handle peremptory strikes in jury selection, where race can be one of multiple factors considered. In Batson v. Kentucky, the Supreme Court explained that purposeful race discrimination in jury selection violates the equal-protection rights of both the defendants on trial and the excluded jurors.34 Though in Batson the Court required that the defendant and the struck juror share a race to establish an equal-protection violation, the Court later held that the two need not share the same race, and that the restriction on racially discriminatory strikes also applied to peremptory strikes by the defense.35 The reason for this, the Court explained, was that “with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.”36 Striking a juror because of their race, regardless of whether it matches the defendant’s, impedes the juror’s participation in that process and violates their equal-protection rights.

In order to protect the rights of both the excluded juror and the defendant, the Court created a three-step process for raising an objection to potential prosecutorial discrimination in jury selection.37 First, the defendant must make a prima facie showing of race discrimination in the prosecutor’s use of peremptory strikes.38 Second, the prosecutor must articulate a “neutral” reason for the strike.39 Third, weighing both the defendant’s prima facie showing and the prosecutor’s race-neutral reason for the strike, the trial judge must determine whether the defendant met their burden of demonstrating purposeful race discrimination.40

What standard should judges apply when weighing the defense-presented evidence and the prosecutor’s “race-neutral” reason? Courts have generally applied four different standards: (1) the “solely” approach, (2) the “mixed motives” approach, (3) the “per se” approach, and (4) the “substantial motivation” approach.41 Recently, the Supreme Court endorsed the substantial motivation approach, and lower courts have followed suit.42 Still, exploring the differences between all four standards illuminates how SFFA’s zero-tolerance policy maps onto the peremptory-strike context.

The “solely” standard comes from the Court’s language in Batson. The Court held that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race.”43 The “solely” standard in Batson suggests that any race-neutral reason, no matter how small, would be sufficient to justify a strike. For instance, in Purkett v. Elem,44 the prosecutor provided the following reason in response to a Batson challenge for striking two Black men from the jury pool:

I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury . . . with the facial hair . . . And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.45

The Supreme Court held that there was no Batson violation because the prosecutor’s explanation did not need to be “persuasive, or even plausible.”46 Under the “solely” standard, a prosecutor’s strike would be permissible even if it were ninety-five percent motivated by racial animosity and five percent motivated by animosity toward people with mustaches.47

The Supreme Court’s “solely” standard suggested that a strike is unconstitutional only if the juror’s race is the sole reason for exclusion—the opposite of the Court’s view in SFFA that using race even as a minor factor is prohibited. In practice, if the “solely” standard applied to the admissions context, an equal-protection violation would occur only if a school implemented a categorical ban of students of certain races. Otherwise, schools could likely produce at least one “race-neutral” explanation for rejecting an application, especially if the reason need not even be plausible. So long as the school could find any random reason to reject the student, the “solely” standard would place no further limits on the use of race in the admissions process. Given the “solely” standard’s ineffectualness as a test to root out race discrimination in jury selection, it is unsurprising that the Supreme Court used the word “solely” only a handful of times when discussing Batson violations, last employing the standard in 2000.48

In the years following Batson, lower courts shifted away from the “solely” standard and began applying the “mixed motives” approach, also known as the “dual motivation” approach. Under the mixed motives standard, there is a Batson violation only if the prosecutor cannot provide a “race-neutral” reason or set of reasons that would be sufficient to strike the juror. For instance, in King v. Moore, the Eleventh Circuit held that “[w]hen the motives for striking a prospective juror are both racial and legitimate, Batson error arises only if the legitimate reasons were not in themselves sufficient reason for striking the juror.”49 In that case, the prosecution said that it struck a prospective juror in part because she was a “young black female” and the defendant was a “young black male.”50 The Eleventh Circuit said that the prosecutors had a legitimate reason to strike the juror because she had expressed that her views were “in the middle” about the death penalty, such that the prosecutors would have justifiably struck her for that reason alone.51 Under the mixed motives standard, courts upheld strikes based on sufficient race-neutral reasons, even when prosecutors admitted that race was a factor.52

The “per se” approach, also known as the “tainted” approach, sets the standard that any race-based motivation for a strike creates a Batson violation.53 The per se approach is attributed to Justice Marshall’s well-known dissent from the denial of certiorari in Wilkerson v. Texas.54 He wrote that accepting a strike that is “based in part” on race “cannot be squared with Batson’s unqualified requirement that the state offer ‘a neutral explanation’ for its peremptory challenge. To be ‘neutral’ the explanation must be based wholly on nonracial criteria.”55 The per se approach thus prohibits any racial basis for a strike.

If the mixed motives approach allows partially race-based strikes and the per se approach does not allow any racial basis for a strike, the substantial motivation approach takes the middle path and is less sharply defined. Under the substantial motivation standard, one “race-neutral” reason for a strike, even if it would be sufficient grounds for striking the juror, is not always enough to overcome a Batson challenge. In this way, the substantial motivation standard provides more protection than the mixed motives standard.56 Though the lower bound of the substantial motivation standard is unclear, the standard permits at least some consideration of race. As the name suggests, a prosecutor’s race-based reason must be a substantial part of the motivation to constitute a Batson violation. So long as the race-based reason does not rise to the level of a substantial basis for the strike, the strike is permissible.

The Supreme Court first implicitly endorsed a substantial motivation standard in Snyder v. Louisiana.57 There, the Court recognized that the peremptory strike of a Black juror was “motivated in substantial partby discriminatory intent” because the proffered “race-neutral” explanation applied even more strongly to a white prospective juror whom the prosecution did not strike.58 Similarly, in Foster v. Chatman, the Court held that Georgia “prosecutors were motivated in substantial part by race” when an open-records request revealed jury-selection notes from the district attorney’s office showing an incessant focus on race.59 In both cases, the Court found that the peremptory strikes violated the Equal Protection Clause.60 Though the Court used a substantial motivation standard in Snyder and Foster, the Court did not explicitly adopt it as the standard, producing uncertainty in the lower courts.61 A circuit split emerged: the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits used a mixed motives test, and the Ninth Circuit used a substantial motivation test.62

Flowers v. Mississippi63 may have finally resolved this split in favor of the substantial motivation approach. In Flowers, the Supreme Court again implicitly used the substantial motivation standard, stating that the peremptory strike of one of the Black prospective jurors had been “motivated in substantial part by discriminatory intent,” since “similarly situated” white jurors had been seated on the jury.64 Sheri Lynn Johnson, who argued Flowers before the Supreme Court, has claimed that the case resolved the circuit split, noting that since Flowers, “no lower court has used ‘mixed motives’ or ‘dual motivation’ in its own analysis of the merits of a Batson claim.”65

The Court’s implicit endorsement of the extent to which race can permissibly influence a decision in jury selection is a far cry from the Court’s arguments about the role that race cannot play in the college-admissions process. We can clearly observe the role that race can play under a substantial motivation standard when we compare it to the per se approach. In People v. Johnson, a Colorado appellate court applied the per se approach, finding that “the prosecutor’s initial stated reason for striking Juror M focused on Juror M’s response that ‘people of different races were treated differently in her experience with law enforcement’” constituted a “race-based explanation.”66 On appeal, the Colorado Supreme Court agreed that “[u]nder the per se approach, a court must sustain a Batson challenge when the striking party gives both race-based and race-neutral reasons to support the strike.”67

But the Colorado Supreme Court reversed. Citing Flowers, the Colorado Supreme Court explained that “the [U.S.] Supreme Court has adopted the substantial-motivating-factor approach,” so identifying the existence of a race-based reason was not enough to prevail on the Batson claim.68 Unlike under the per se approach, the substantial motivation standard means that a defendant cannot prevail on a Batson challenge only by showing the presence of a race-based reason. Instead, there must be a further inquiry as to whether the race-based reason was a substantial reason. As such, it is clear that the substantial motivation standard permits some consideration of race.

If we apply the substantial motivation standard to college admissions, it would be permissible to consider race in the application process. Courts would compare the weight of a race-based reason to the weight of the many other reasons an applicant may be rejected. As long as race was not a substantial reason for rejecting an applicant, there would be no equal-protection violation. To prevail on an equal-protection challenge, an applicant would need to show the race played a significant role in the decision to reject them. Under the SFFA standard, however, an applicant can prevail on an equal-protection claim just by showing the mere presence of race as a consideration, as the plaintiffs in SFFA did.

Whether a strike constitutes an equal-protection violation turns on the extent to which race was a consideration. But, per SFFA, any consideration of race—no matter how minor—violates the Equal Protection Clause. Thus, the constitutionality of an admissions process turns on the presence or absence of race as a factor during the process. In short, the current jury-selection standard focuses on the weight of race as a factor, while the new college-admissions standard examines the existence of race as a factor.

Even the structure of a Batson challenge—that prosecutors must state one plausible, race-neutral explanation for the strike—demonstrates that the Court’s concern in jury selection is not whether race had any influence but rather how much influence it had. Thus, during jury selection, using race as a factor does not automatically render a strike unconstitutional. Yet, in the context of college admissions, the Court’s zero-sum argument establishes that the consideration of race, no matter how minor, renders the process unconstitutional.

III. applying the sffa standard

The Court’s new standard for an equal-protection violation in the admissions context should be applied to jury selection. There are two primary grounds for importing this new standard into criminal procedure: to deploy a consistent interpretation of the Fourteenth Amendment across areas of the law and to ensure that people receive heightened protection from race discrimination in circumstances where the stakes are higher than in elite college admissions.

First, in Batson cases, drawing from equal-protection doctrine in other areas of the law is nothing new. When the Court fashioned the three-step process in Batson, it drew on its own previous analyses of the guarantees of the Fourteenth Amendment in contexts outside of jury selection.69 Since then, the Supreme Court, lower courts, and scholars have continued to connect Batson and equal-protection doctrine in other areas of the law.70

Further, existing scholarship has connected the Court’s decisions in affirmative-action cases to the jury-selection context.71 Of course, there are many ways in which the college-admissions process and jury selection are disanalogous. College-admissions programs are often filling hundreds, if not thousands, of seats in an incoming class. Juries, on the other hand, are comprised of six to twelve people. The processes also have different durations—the college-admissions process may span multiple months, while the jury-selection process rarely takes more than a day. When selecting an incoming college class, many admissions officers may be involved, while only a handful of attorneys are involved in selecting jurors at a given trial. Moreover, prosecutors are public actors and serving on a jury is a civic service, while many universities are private institutions and securing a college spot is a personal benefit.

But college admissions and jury selection also share many fundamental features. Both are selection processes. And for both, the Fourteenth Amendment regulates how those processes work—not their outcomes. No one has a right to be admitted to Harvard, just as no one has a right to be seated on a jury. That said, every person still has an equal-protection right not to be denied a spot at Harvard or a seat on a jury because of their race. Though there are several factors that decision makers typically consider, there is no clear metric for who deserves a spot at Harvard or what makes someone a good juror. Ultimately, both are selection processes for a set number of spots where race might be one of the many factors considered by decision makers. Since the Fourteenth Amendment applies to both selection processes, applying the SFFA standard to jury selection would ensure that the law regulates selection processes in a consistent manner.

Second, lower courts should apply the new standard set out in SFFA to Batson challenges for a straightforward reason: the stakes are much higher in a criminal trial than in college admissions. Discrimination in jury selection undermines a person’s right to a fair trial when their life or liberty is on the line. Surely, high schoolers applying to elite universities should not get more protection than people facing the deprivation of life or liberty. Furthermore, racially biased peremptory strikes also prevent prospective jurors from participating in an important civic duty—second only to voting. Just as the right to vote is carefully guarded, the right to be considered to serve on a jury is worthy of extra protection.

Judge Berzon of the Ninth Circuit has made a similar argument. Foreshadowing the Ninth Circuit’s later adoption of the substantial motivation test to replace the mixed motives test, Berzon argued that “the Batson standard is no less protective of racial equality than the standard applied in Equal Protection Clause cases generally. There is, however, a strong argument that the Batson standard should be stricter than the one . . . generally embedded in Equal Protection Clause cases.”72

The argument here, however, is even simpler than Judge Berzon’s. Since the Supreme Court has interpreted the Equal Protection Clause to provide more protection in college admissions than the substantial motivation test would, courts should, at the very least, apply SFFA’s more protective standard to Batson challenges.

How would applying the SFFA standard change the evaluation of race discrimination in jury selection? First, it would be an automatic equal-protection violation for a prosecutor to announce that race was a factor in their decision to strike a juror. In the past, courts have allowed prosecutors to exercise peremptory strikes against prospective jurors even when prosecutors have explicitly stated that race was a factor in their decision. In Howard v. Senkowski, defense counsel moved for a mistrial because the prosecutor had struck the only two Black prospective jurors.73 The prosecutor responded by simply stating that “neither peremptory challenge was exercised solely on the basis of race.”74 During a hearing on the issue, the prosecutor confirmed that “race itself was a factor” in his decision.75 The Second Circuit, however, did not find a Batson violation and instead remanded the case to determine if the race-neutral reasons that the prosecutor belatedly provided were sufficient grounds to sustain the two strikes.76 Indeed, the Court approvingly cited the trial judge’s recognition of the prosecutor’s “candid admission that race was a factor, although a minor one, in his exercise of the peremptory challenges” as a “further indication . . . of the overall credibility of [the prosecutor’s] testimony.”77 Thus, this first effect of applying SFFA to jury selection—that prosecutors could no longer get away with expressly race-based peremptory strikes—would, in itself, be an improvement upon the status quo.

Second, the presence of a race-based reason would end the Batson inquiry—courts would not need to investigate the relative strengths of possible different reasons. In that way, the SFFA standard is akin to the per se standard. Under the current Batson standard, some consideration of race is permitted as long as it is not substantial. As we saw in People v. Johnson, the reviewing courts evaluated whether the prosecutor’s “race-based explanation” for striking a juror who said “people of different races were treated differently in her experience with law enforcement” constituted an equal-protection violation.78 Applying the per se standard, the lower court found a Batson violation: a strike based even in part on a race-based reason was unconstitutional.79 However, the Colorado Supreme Court, applying the current substantial motivation standard, found that the existence of the race-based reason did not render the strike unconstitutional and remanded the case for fact-finding regarding the weight of the race-based reason.80 Under the SFFA standard, no further investigation would be needed. As the lower court held, the existence of a race-based reason would be enough to render the strike unconstitutional.

Furthermore, because of the confusion around what constitutes a “substantial” motivation, trial courts are applying incorrect standards, which appellate courts must then correct.81 The SFFA standard provides a bright-line rule: any influence of race, no matter how small, is impermissible.

Third, applying the SFFA standard would transform Batson into a more objective inquiry. The current Batson standard asks courts to peer into a decision maker’s mind to determine the true reasons for the strikes and the respective weights of all the reasons. But judges are not mind readers. For instance, in United States v. Darden, the prosecutor stated:

I note for the record in my own experience that young black females have a penchant, have a tendency—and I have noted throughout in my trials, over forty or fifty jury drug related trials—tend to testify on behalf and be more sympathetic toward individuals who are involved in narcotics, either because of emotional attachment or family attachment or attachment as a result of financial gains or financial benefits as a result of their relationship with drug dealers.82

The trial judge acknowledged that the prosecutor had stated a race-based reason. But the prosecutor had also expressed “other reasons” that were “racially neutral.”83 Unable to read the prosecutor’s mind, the judge appeared to settle on upholding the strike, explaining that “the other reasons [the prosecutor] gave give the basis for being a strike.”84

Under the commonly applied substantial motivation standard, it makes sense to center Batson inquiries on the strength of the race-neutral reason provided by the prosecutor. If the prosecutor has strong race-neutral reasons for a peremptory strike, then a race-based reason is unlikely to be a substantial motivation for the strike. Under the SFFA standard, however, analyzing the strength of the prosecutor’s race-neutral reason would be unnecessary—a person can have a strong race-neutral reason and still have factored in race.85 As such, it would easier to see when peremptory strikes, even those with strong “race-neutral” reasons such as the one in Darden, are unconstitutional.

Deemphasizing the strength of the prosecutor’s stated reasons has two upshots. First, it would make Batson easier to apply. In cases where prosecutors do not explicitly state that race was a factor in their decision, courts applying the SFFA standard would look not for the presence of a nonpretextual race-neutral reason, but for the absence of a race-based reason. Though SFFA does not clarify what role (if any) a decision maker’s intent plays, a zero-tolerance policy moves the analysis away from guessing the contents of a decision maker’s mind and toward looking for external indications that race was used in the decision-making process.86 Currently, courts turn to proxies to reconstruct a prosecutor’s true reasoning.87 In Flowers v. Mississippi for instance, the Court marshalled four different types of evidence to find a Batson violation to counter the prosecutor’s insistence that the peremptory strikes were not race-based.88 If, however, the only question is whether race was considered at all, the tools used by courts as proxies for the prosecutor’s mind, such as comparing the number of questions asked to Black and white prospective jurors, could instead serve as independent evidence that race was a factor.

The second upshot of deemphasizing the strength of the prosecutor’s stated reasons is that judges would be able to place more weight on other types of evidence, such as the prosecutor’s past conduct, which could lead to different results.89 Consider the outcome in King v. Emmons in the 2024 Term.90 In her dissent to the denial of certiorari, Justice Jackson argued that the lower courts did not give sufficient weight to evidence beyond the prosecutor’s stated reasons. The prosecutor struck every Black woman and all but two Black men from the jury pool. For one of those strikes, the prosecutor stated, “My main reason [for the strike] is that this lady is a black female, she is from [the town of] Surrency, [and] she knows the defendant and his family.”91 Since the prospective juror did not in fact know the defendant’s family, the trial judge found a Batson violation and seated the juror. The prosecutor then said:

If this lady were a white lady there would not be a reason—there would not be a question in this case. And that’s the problem I have with all of this is that it’s not racially neutral. There was a time when it was racially neutral and that was before Batson . . . it was a physical impossibility if you wanted to strike every black off a jury for you to do that. And we had an issue just—you had to reform your whole ideas and then Batson came out. And Batson now makes us look whether people are black or not. Not whether they’re black or white, but black or not.92

Even though the trial court had already found one Batson violation and the prosecutor then ranted about his dislike of Batson, the judge still allowed the prosecutor to strike other Black prospective jurors because of “race-neutral” reasons, such as being a minister or a single mother or stating that the death penalty was not the juror’s “first choice.”93 The Georgia Supreme Court and the Eleventh Circuit both held that the trial court acted reasonably in accepting the prosecutor’s strikes.94

In contrast, under the SFFA standard, the prosecutor’s strikes would violate Batson given his expressed attitude toward race in jury selection. Even though the prosecutor supplied race-neutral reasons, the SFFA standard requires the absence of race as a factor. Other evidence, including the prosecutor’s previous strike and complaint about Batson, indicated that race still unconstitutionally influenced his other peremptory strikes.

Fourth, courts would also stop excusing prosecutors’ lists of prospective jurors containing notes about the race of each member of the venire.95 In 2023, after the Court’s decision in SFFA, a district court in Texas held that the prosecutor’s jury list with annotations about the venire members’ races did “not give rise to an inference of purposeful prosecutorial discrimination.”96 Rather, the district court accepted the use of lists because the “annotations on jury lists regarding race or ethnicity help prosecutors keep track of each venire member.”97 Similarly, in Broadnax v. Davis, the defense presented the prosecutors’ spreadsheet listing the race and gender of all of the venire members, with “the remaining black members of the jury venire” highlighted.98 The district court in this case also applauded the prosecutor’s list:

Having twice been criticized by the United States Supreme Court for its exercise of racially discriminatory peremptory strikes in Miller-El v. Dretke, 545 U.S. 231 (2005), and Miller-El v. Cockrell, 537 U.S. 322 (2003), it would have been professionally irresponsible for the Dallas County District Attorney’s Office (in 2009) to have failed to identify the members of the remaining jury venire who were members of a protected class and against whom it might have been preparing to exercise a peremptory challenge.99

The court went on to state that “[n]o sinister motive can be inferred rationally simply because the prosecution . . . highlighted those for whom that office would need to be prepared to offer sound, race-neutral, reasons in the event the prosecution chose to exercise a peremptory strike.”100 The Fifth Circuit agreed, again applauding the prosecutors for using the spreadsheet to prepare responses to possible Batson challenges.101

The reasoning here runs contrary to the Court’s decision in SFFA. At the very least, the lists demonstrate that the prosecutors were purposefully tracking race when deciding whom to seat and whom to strike.102 In contrast, colleges stopped receiving information about candidates’ races in an attempt to follow the Court’s ruling in SFFA.103

More shocking, however, is the judicial endorsement of maintaining annotated lists so that prosecutors could have a race-neutral reason prepared if challenged. Indeed, in Broadnax, the Fifth Circuit stated that “the prosecution was still required to—and did—provide racially neutral reasons for each of the strikes. The spreadsheet alone is no smoking gun; it fails to render all those reasons merely pretextual.”104 In the college-admissions context, this argument is akin to stating that collecting and using information about an applicant’s race is permissible as long as the admissions office has a race-neutral reason for rejecting that applicant. The Supreme Court in SFFA, however, made this much clear: race-neutral reasons for rejections do not make the process constitutional.

Finally, applying the SFFA standard to jury selection would also resolve an open debate about the appropriate trial-level remedy for a Batson violation. A footnote at the end of the Court’s decision in Batson indicated that the Court left open two different routes for redressing a Batson violation discovered at trial.105 One option would be “for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case.”106 Alternatively, a trial court could “disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire.”107 Under the second approach, already-seated jurors remain on the jury.108

According to SFFA’s standard, however, considering race for some candidates implicates all prospective jurors’ rights not to be subjected to an unfair process.109 A central piece of the Court’s reasoning in SFFA is that an admissions process is a zero-sum game—a “plus” given to one applicant is a “negative” for another, and vice versa. As such, the Court argued that if a college uses race as a “plus” for some applicants, then the college violates the equal-protection rights of applicants who do not receive that same “plus.” Thus, if one part of a selection process in a zero-sum system is unconstitutional, then the whole process is compromised. Since jury discrimination is also a zero-sum process—every juror who is selected takes away from prospective jurors the opportunity to fill that spot—it seems that, under the SFFA standard, finding a Batson violation regarding one peremptory strike would mean that the whole jury-selection process was tainted.110 Thus, the SFFA standard counsels in favor of the first approach mentioned in the Batson remedies footnote: discharging the venire and selecting a new jury from a panel not previously associated with the case.

Even if courts applied the SFFA standard to Batson challenges, many of the problems inherent to Batson inquiries may persist. As many scholars have pointed out, the current structure of Batson makes it nearly impossible to police the use of peremptory strikes, since prosecutors may not be forthcoming about the true reasons behind a peremptory strike.111 State courts and legislatures have tried in recent years to address the problem of racial bias in jury selection in different ways.112 In 2021, the Arizona Supreme Court, for instance, abolished peremptory strikes altogether.113 Soon after, California passed legislation to change the standard of what constitutes an improper race-based strike.114 Though these changes likely have not abolished racial bias in jury selection, they are designed to limit the influence of race. Similarly, applying the SFFA standard likely will not eliminate the problem, but it can still serve as a step in the right direction. And state supreme courts and legislators do not have to develop a new standard from scratch—the SFFA Court has already provided one.

Conclusion

In SFFA, the Court rejected the use of an applicant’s race as a factor in college admissions, even as a minor consideration. In doing so, the Court adopted a significantly more searching standard for equal-protection violations in the college-admissions context than in the jury-selection context—taking a dramatically different approach to the role of race when a spot at an elite university, as opposed to a person’s life or liberty, is on the line.

In addition to the Court’s argument in SFFA about the extent to which race is considered, a variety of smaller comments and inferences embedded throughout the majority opinion and concurrences appear incongruous with the Court’s stance on race discrimination in jury selection. For instance, Justice Thomas stated that “it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination.”115 Thomas strongly warned against taking Harvard and UNC at their word vis-à-vis the intentions and goals of their admissions teams. If Thomas’s skepticism about deferring to an “alleged discriminator” applies beyond college admissions, then courts should stop relying heavily on the word of prosecutors—the alleged discriminators—to determine whether there has been a Batson violation.

Moreover, in SFFA, Justice Thomas suggested that “the university respondents’ histories hardly recommend them as trustworthy arbiters of whether racial discrimination is necessary to achieve educational goals.”116 If Thomas’s skepticism is not reserved exclusively for elite universities, then one would expect him to be similarly wary of prosecutors, like the one in Flowers, who have extensive records of discriminatory jury-selection practices. Yet, in Flowers, Thomas in dissent wrote that “the Court almost entirely ignores—and certainly does not refute—the race-neutral reasons given by the State,” admonishing the Court for not putting more weight on the word of an alleged discriminator with a history of racial bias.117

In one sense, this Essay’s comparison of SFFA and Batson sheds light on the Court’s thinly veiled hypocrisy. But viewed through a more optimistic lens, SFFA might signal that the Court has lowered the bar for prevailing on equal-protection claims. If advocates can use the Roberts Court’s equal-protection jurisprudence to challenge race discrimination in our criminal system, perhaps some good can come of SFFA.

Author Biographical Information & Acknowledgments: Yale Law School, J.D. expected 2026; University of Oxford, D.Phil. 2023; Princeton University, A.B 2020. Many thanks to Stephen Bright and Issa Kohler-Hausmann, whose classes provided the foundation for this Essay. I also thank Noah Avigan, Kellen Funk, Julia Udell, Gideon Yaffe, and the editors at the Yale Law Journal, in particular Callie McQuilkin, Paige Underwood, and Lily Moore-Eissenberg. All views and errors are my own.