487 U. S. 81
June 22, 1988
When an Oklahoma court failed to excuse a potential juror from a capital sentencing panel, as required by Witherspoon, the defense lawyer eliminated this potential juror through a peremptory challenge. The defense ultimately used up all its peremptory challenges. When a death sentence was returned, Ross argued that it violated the Eighth Amendment because he lost one of his peremptory challenges to correct the court’s erroneous decision not to exlude an unqualified juror. Under last year’s Gray ruling, any errors that affected jury composition required overturning a death sentence.
The Court ruled 5-4 that the death sentence could stand. Rehnquist stressed that the final jury was conceded to be impartial and free of unqualified jurors, and that such a jury’s decision deserved the Court’s deference. With some unease, Rehnquist distinguished Gray as follows: “We decline to extend the rule of Gray beyond its context: the erroneous “Witherspoon exclusion” of a qualified juror in a capital case. We think the broad language used by the Gray Court is too sweeping to be applied literally, and is best understood in the context of the facts there involved.” Finally, Rehnquist observed that losing one peremptory challenge was no great loss, because states could vary the precise amount of peremptory challenges, because Oklahoma law explicitly noted that they could sometimes be used to strike jurors for cause, and because Court precedents had allowed states to impose various limits on their usage.
Marshall, joined by Brennan, Blackmun, and Stevens, would have none of this. Gray controlled the case, plain and simple. Gray said that any error which could potentially affect the final jury composition required overturning the death sentence. Because Ross might have used his wasted peremptory challenge on another juror, the jury’s composition was potentially affected. Marshall found the majority’s grounds for distinguishing Gray totally unconvincing. He also said that peremptory challenges, once given, should be seen as entitlements that the state could not force the sacrifice of in order to correct a judge’s error.
This is one of those instances where the majority reached the right result for the wrong reasons. Gray obviously controlled, and could not be adequately distinguished. The majority should have had the courage and intellectual honesty to overrule it. Instead, they were a bunch of intellectually dishonest cowards, and they did the ‘we confine the reach of this precedent to its immediate facts’ thing. Screw that – Gray deserved to be overruled. In my final roundup of the 1986-1987 term, I even rated it as one of the four worst decisions of the entire year.
The Supreme Court never wants it to be thought that previous decisions can be overruled entirely on the basis of membership changes. This is, I’m fairly certain, the key to the majority’s intellectual dishonesty. Powell was gone, and Kennedy was his replacement. Gray would have been overruled based on a mere membership change. Yet again, here is a creepy prefiguring of Planned Parenthood v. Casey, in which Roe was reaffirmed, in part, because of the worry that overruling it would be accounted wholly to membership changes.