Answer to Question 1
e
Answer to Question 2
A QUESTION OF ETHICS
1. On further appeal, the United States Supreme Court held that the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case solely because that person happens to be a woman or a man. The Court concluded that the state's gender-based peremptory challenges could not survive the higher standard of equal-protection scrutiny that the Court affords dis-tinctions based on gender. The Court stated that the state's rationale (that its decision to strike virtually all males in the case may reasonably have been based on the perception, supported by history, that men otherwise totally qualified to serve as jurors might be more sympathetic and receptive to the arguments of a man charged in a paternity action, while women equally qualified might be more sympathetic and receptive to the arguments of the child's mother) was virtually unsupported and was based on the very stereotypes the law condemns.
2. On the one hand, it can be said that whether a trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are fair and free from discrimination. On the other hand, some agree, with Justice Scalia in his dissent in this case, that the two sexes differ, both biologically and in experience. In that case, it is not merely stereotyping to say that these differences may produce a difference in outlook that is brought to the jury room. Thus, the use of peremptory challenges on the basis of sex is not the sort of derogatory and invidious act that peremptory challenges directed at black jurors may be. Because all groups are subject to the peremptory challenge (and will be made the object of it, depending on the nature of a particular case), it can be hard to see how any group is denied equal protection. Women were categorically excluded from juries because of doubt that they were competent; women are stricken from juries by peremptory challenge because of doubt that they are well disposed to the striking party's case. This is not discrimination.
3. It can be argued, as the Supreme Court held in this case, that the conclusion that litigants may not strike potential jurors solely on the basis of gender does not imply the elimination of all peremptory challenges. So long as gender does not serve as a proxy for bias, unacceptable jurors may still be removed, including those who are members of a group or class that is normally subject to a lesser standard of review (rational basis) under the equal protection clause and those who exhibit characteristics that are disproportionately associated with one gender. As Justice Scalia, citing Blackstone, noted in his dissent in this case, Wise observers have long understood that the appearance of justice is as important as its reality. If the system of peremptory strikes affects the actual impartiality of the jury not a bit, but gives litigants a greater belief in that impartiality, it serves a most important function. In point of fact, that may well be its greater value.