J. E. B. v. Alabama ex rel. T. B.

Justice O’Connor,

concurring.

I agree with the Court that the Equal Protection Clause prohibits the government from excluding a person from jury service on account of that person’s gender. Ante, at 135-137. The State’s proffered justifications for its gender-based peremptory challenges are far from the “ ‘exceedingly persuasive’” showing required to sustain a gender-based *147classification. Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982); ante, at 137-140. I therefore join the Court’s opinion in this case. But today’s important blow against gender discrimination is not costless. I write separately to discuss some of these costs, and to express my belief that today’s holding should be limited to the government’s use of gender-based peremptory strikes.

Batson v. Kentucky, 476 U. S. 79 (1986), itself was a significant intrusion into the jury selection process. Batson minihearings are now routine in state and federal trial courts, and Batson appeals have proliferated as well. Demographics indicate that today’s holding may have an even greater impact than did Batson itself. In further constitutionalizing jury selection procedures, the Court increases the number of cases in which jury selection — once a sideshow— will become part of the main event.

For this same reason, today’s decision further erodes the role of the peremptory challenge. The peremptory challenge is “a practice of ancient origin” and is “part of our common law heritage.” Edmonson v. Leesville Concrete Co., 500 U. S. 614, 639 (1991) (O’Connor, J., dissenting). The principal value of the peremptory is that it helps produce fair and impartial juries. Swain v. Alabama, 380 U. S. 202, 218-219 (1965); Babcock, Voir Dire: Preserving “Its Wonderful Power,” 27 Stan. L. Rev. 545, 549-558 (1975). “Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of eliminat[ing] extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury.” Holland v. Illinois, 493 U. S. 474, 484 (1990) (emphasis deleted; internal quotation marks and citations omitted). The peremptory’s importance is confirmed by its persistence: It was well established at the time of Blackstone and continues to endure in all the States. Id., at 481.

Moreover, “[t]he essential nature of the peremptory challenge is that it is one exercised without a reason stated, with*148out inquiry and without being subject to the court’s control.” Swain, 380 U. S., at 220. Indeed, often a reason for it cannot be stated, for a trial lawyer’s judgments about a juror’s sympathies are sometimes based on experienced hunches and educated guesses, derived from a juror’s responses at voir dire or a juror’s “ ‘bare looks and gestures.’ ” Ibid. That a trial lawyer’s instinctive assessment of a juror’s predisposition cannot meet the high standards of a challenge for cause does not mean that the lawyer’s instinct is erroneous. Cf. V. Starr & M. McCormick, Jury Selection 522 (1993) (nonverbal cues can be better than verbal responses at revealing a juror’s disposition). Our belief that experienced lawyers will often correctly intuit which jurors are likely to be the least sympathetic, and our understanding that the lawyer will often be unable to explain the intuition, are the very reason we cherish the peremptory challenge. But, as we add, layer by layer, additional constitutional restraints on the use of the peremptory, we force lawyers to articulate what we know is often inarticulable.

In so doing we make the peremptory challenge less discretionary and more like a challenge for cause. We also increase the possibility that biased jurors will be allowed onto the jury, because sometimes a lawyer will be unable to provide an acceptable gender-neutral explanation even though the lawyer is in fact correct that the juror is unsympathetic. Similarly, in jurisdictions where lawyers exercise their strikes in open court, lawyers may be deterred from using their peremptories, out of the fear that if they are unable to justify the strike the court will seat a juror who knows that the striking party thought him unfit. Because I believe the peremptory remains an important litigator’s tool and a fundamental part of the process of selecting impartial juries, our increasing limitation of it gives me pause.

Nor is the value of the peremptory challenge to the litigant diminished when the peremptory is exercised in a gender-based manner. We know that like race, gender matters. A *149plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. See R. Hastie, S. Penrod, & N. Pennington, Inside the Jury 140-141 (1983) (collecting and summarizing empirical studies). Moreover, though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be a sexist to share the intuition that in certain cases a person’s gender and resulting life experience will be relevant to his or her view of the case. “ ‘Jurors are not expected to come into the jury box and leave behind all that their human experience has taught them.’ ” Beck v. Alabama, 447 U. S. 625, 642 (1980). Individuals are not expected to ignore as jurors what they know as men— or women.

Today’s decision severely limits a litigant’s ability to act on this intuition, for the import of our holding is that any correlation between a juror’s gender and attitudes is irrelevant as a matter of constitutional law. But to say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said with regard to Batson: “That the Court will not tolerate prosecutors’ racially discriminatory use of the peremptory challenge, in effect, is a special rule of relevance, a statement about what this Nation stands for, rather than a statement of fact.” Brown v. North Carolina, 479 U. S. 940, 941-942 (1986) (opinion concurring in denial of certiorari). Today’s decision is a statement that, in an effort to eliminate the potential discriminatory use of the peremptory, see Batson, 476 U. S., at 102 (Marshall, J., concurring), gender is now governed by the special rule of relevance formerly reserved for race. Though we gain much from this statement, we cannot ignore what we lose. In extending Batson to gender we have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of liti*150gants to act on sometimes accurate gender-based assumptions about juror attitudes.

These concerns reinforce my conviction that today’s decision should be limited to a prohibition on the government’s use of gender-based peremptory challenges. The Equal Protection Clause prohibits only discrimination by state actors. In Edmonson, swpra, we made the mistake of concluding that private civil litigants were state actors when they exercised peremptory challenges; in Georgia v. McCollum, 505 U. S. 42, 50-55 (1992), we compounded the mistake by holding that criminal defendants were also state actors. Our commitment to eliminating discrimination from the legal process should not allow us to forget that not all that occurs in the courtroom is state action. Private civil litigants are just that — private litigants. “The government erects the platform; it does not thereby become responsible for all that occurs upon it.” Edmonson, 500 U. S., at 632 (O’Connor, J., dissenting).

Clearly, criminal defendants are not state actors. “From arrest, to trial, to possible sentencing and punishment, the antagonistic relationship between government and the accused is clear for all to see. . . . [T]he unique relationship between criminal defendants and the State precludes attributing defendants’ actions to the State . . . .” McCollum, supra, at 67 (O’Connor, J., dissenting). The peremptory challenge is “ ‘one of the most important of the rights secured to the accused.’ ” Swain, 380 U. S., at 219 (emphasis added); Goldwasser, Limiting a Criminal Defendant’s Use of Peremptory Challenges: On Symmetry and the Jury in a Criminal Trial, 102 Harv. L. Rev. 808, 826-833 (1989). Limiting the accused’s use of the peremptory is “a serious misordering of our priorities,” for it means “we have exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death.” McCollum, supra, at 61-62 (Thomas, J., concurring in judgment).

*151Accordingly, I adhere to my position that the Equal Protection Clause does not limit the exercise of peremptory challenges by private civil litigants and criminal defendants. This case itself presents no state action dilemma, for here the State of Alabama itself filed the paternity suit on behalf of petitioner. But what of the next case? Will we, in the name of fighting gender discrimination, hold that the battered wife — on trial for wounding her abusive husband — is a state actor? Will we preclude her from using her peremptory challenges to ensure that the jury of her peers contains as many women members as possible? I assume we will, but I hope we will not.

Justice Kennedy,

concurring in the judgment.

I am in full agreement with the Court that the Equal Protection Clause prohibits gender discrimination in the exercise of peremptory challenges. I write to explain my understanding of why our precedents lead to that conclusion.

Though in some initial drafts the Fourteenth Amendment was written to prohibit discrimination against “persons because of race, color or previous condition of servitude,” the Amendment submitted for consideration and later ratified contained more comprehensive terms: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” See Oregon v. Mitchell, 400 U. S. 112, 172-173 (1970) (Harlan, J., concurring in part and dissenting in part); B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction, 39th Congress, 1865-1867, pp. 90-91, 97-100 (1914). In recognition of the evident historical fact that the Equal Protection Clause was adopted to prohibit government discrimination on the basis of race, the Court most often interpreted it in the decades that followed in accord with that purpose. In Strauder v. West Virginia, 100 U. S. 303 (1880), for example, the Court invalidated a West Virginia law prohibiting blacks from serving on juries. In so doing, the decision said of the Equal Protection Clause:

*152“What is this but declaring that the law in the States shall be the same for the black as for the white.” Id., at 307. And while the Court held that the State could not confine jury service to whites, it further noted that the State could confine jury service “to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications.” Id., at 310. See also Yick Wo v. Hopkins, 118 U. S. 356, 373-374 (1886).

As illustrated by the necessity for the Nineteenth Amendment in 1920, much time passed before the Equal Protection Clause was thought to reach beyond the purpose of prohibiting racial discrimination and to apply as well to discrimination based on sex. In over 20 cases beginning in 1971, however, we have subjected government classifications based on sex to heightened scrutiny. Neither the State nor any Member of the Court questions that principle here. And though the intermediate scrutiny test we have applied may not provide a very clear standard in all instances, see Craig v. Boren, 429 U. S. 190, 221 (1976) (Rehnquist, J., dissenting), our case law does reveal a strong presumption that gender classifications are invalid. See, e. g., Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982).

There is no doubt under our precedents, therefore, that the Equal Protection Clause prohibits sex discrimination in the selection of jurors. Duren v. Missouri, 439 U. S. 357 (1979); Taylor v. Louisiana, 419 U. S. 522 (1975). The only question is whether the Clause also prohibits peremptory challenges based on sex. The Court is correct to hold that it does. The Equal Protection Clause and our constitutional tradition are based on the theory that an individual possesses rights that are protected against lawless action by the government. The neutral phrasing of the Equal Protection Clause, extending its guarantee to “any person,” reveals its concern with rights of individuals, not groups (though group disabilities are sometimes the mechanism by which the State violates the individual right in question). “At the heart of *153the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial [or] sexual... class.” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 602 (1990) (O’Connor, J., dissenting) (emphasis deleted; internal quotation marks omitted). For purposes of the Equal Protection Clause, an individual denied jury service because of a peremptory challenge exercised against her on account of her sex is no less injured than the individual denied jury service because of a law banning members of her sex from serving as jurors. Cf., e. g., Powers v. Ohio, 499 U. S. 400, 409-410 (1991); Palmore v. Sidoti, 466 U. S. 429, 431-432 (1984); Ex parte Virginia, 100 U. S. 339, 346-347 (1880). The injury is to personal dignity and to the individual’s right to participate in the political process. Powers, supra, at 410. The neutrality of the Fourteenth Amendment’s guarantee is confirmed by the fact that the Court has no difficulty in finding a constitutional wrong in this case, which involves males excluded from jury service because of their gender.

The importance .of individual rights to our analysis prompts a further observation concerning what I conceive to be the intended effect of today’s decision. We do not prohibit racial and gender bias in jury selection only to encourage it in jury deliberations. Once seated, a juror should not give free rein to some racial or gender bias of his or her own. The jury system is a kind of compact by which power is transferred from the judge to jury, the jury in turn deciding the case in accord with the instructions defining the relevant issues for consideration. The wise limitation on the authority of courts to inquire into the reasons underlying a jury’s verdict does not mean that a jury ought to disregard the court’s instructions. A juror who allows racial or gender bias to influence assessment of the case breaches the compact and renounces his or her oath.

In this regard, it is important to recognize that a juror sits not as a representative of a racial or sexual group but as an *154individual citizen. Nothing would be more pernicious to the jury system than for society to presume that persons of different backgrounds go to the jury room to voice prejudice. Cf. Metro Broadcasting, supra, at 618 (O’Connor, J., dissenting). The jury pool must be representative of the community, but that is a structural mechanism for preventing bias, not enfranchising it. See, e. g., Ballard v. United States, 329 U. S. 187, 193 (1946); Thiel v. Southern Pacific Co., 328 U. S. 217 (1946). “Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system.” Id., at 220. Thus, the Constitution guarantees a right only to an impartial jury, not to a jury composed of members of a particular race or gender. See Holland v. Illinois, 493 U. S. 474 (1990); Strauder, 100 U. S., at 305.

* * *

For these reasons, I concur in the judgment of the Court holding that peremptory strikes based on gender violate the Equal Protection Clause.

Chief Justice Rehnquist,

dissenting.

I agree with the dissent of Justice & alia, which I have joined. I add these words in support of its conclusion. Accepting Batson v. Kentucky, 476 U. S. 79 (1986), as correctly decided, there are sufficient differences between race and gender discrimination such that the principle of Batson should not be extended to peremptory challenges to potential jurors based on sex.

That race and sex discrimination are different is acknowledged by our equal protection jurisprudence, which accords different levels of protection to the two groups. Classifications based on race are inherently suspect, triggering “strict scrutiny,” while gender-based classifications are judged under a heightened, but less searching, standard of review. Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982). Racial groups comprise numerical minorities in our *155society, warranting in some situations a greater need for protection, whereas the population is divided almost equally between men and women. Furthermore, while substantial discrimination against both groups still lingers in our society, racial equality has proved a more challenging goal to achieve on many fronts than gender equality. See, e.g., D. Kirp, M. Yudof, & M. Franks, Gender Justice 137 (1986).

Batson, which involved a black defendant challenging the removal of black jurors, announced a sea change in the jury selection process. In balancing the dictates of equal protection and the historical practice of peremptory challenges, long recognized as securing fairness in trials, the Court concluded that the command of the Equal Protection Clause was superior. But the Court was careful that its rule not “undermine the contribution the challenge generally makes to the administration of justice.” 476 U. S., at 98-99. Bat-son is best understood as a recognition that race lies at the core of the commands of the Fourteenth Amendment. Not surprisingly, all of our post-Batson cases have dealt with the use of peremptory strikes to remove black or racially identified venirepersons, and all have described Batson as fashioning a rule aimed at preventing purposeful discrimination against a cognizable racial group.^* As Justice O’Con-nor once recognized, Batson does not apply “[o]utside the uniquely sensitive area of race.” Brown v. North Carolina, 479 U. S. 940, 942 (1986) (opinion concurring in denial of certiorari).

Under the Equal Protection Clause, these differences mean that the balance should tilt in favor of peremptory challenges when sex, not race, is the issue. Unlike the *156Court, I think the State has shown that jury strikes on the basis of gender “substantially further” the State’s legitimate interest in achieving a fair and impartial trial through the venerable practice of peremptory challenges. Swain v. Alabama, 380 U. S. 202, 212-220 (1965) (tracing the “very old credentials” of peremptory challenges); Batson, supra, at 118-120 (Burger, C. J., dissenting); post, at 161-162 (Scalia, J., dissenting). The two sexes differ, both biologically and, to a diminishing extent, in experience. It is not merely “stereotyping” to say that these differences may produce a difference in outlook which is brought to the jury room. Accordingly, use of peremptory challenges on the basis of sex is generally not the sort of derogatory and invidious act which peremptory challenges directed at black jurors may be.

Justice O’Connor’s concurring opinion recognizes several of the costs associated with extending Batson to gender-based peremptory challenges — lengthier trials, an increase in the number and complexity of appeals addressing jury selection, and a “diminished . . . ability of litigants to act on sometimes accurate gender-based assumptions about juror attitudes.” Ante, at 149-150. These costs are, in my view, needlessly imposed by the Court’s opinion, because the Constitution simply does not require the result that it reaches.

Justice Scalia,

with whom The Chief Justice and Justice Thomas join,

dissenting.

Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors. The price to be paid for this display — a modest price, surely — is that most of the opinion is quite irrelevant to the case at hand. The hasty reader will be surprised to learn, for example, that this lawsuit involves a complaint about the use of peremptory challenges to exclude men from a petit jury. To be sure, *157petitioner, a man, used all but one of his peremptory strikes to remove women from the jury (he used his last challenge to strike the sole remaining male from the pool), but the validity of his strikes is not before us. Nonetheless, the Court treats itself to an extended discussion of the historic exclusion of women not only from jury service, but also from service at the bar (which is rather like jury service, in that it involves going to the courthouse a lot). See ante, at 131-136. All this, as I say, is irrelevant, since the case involves state action that allegedly discriminates against men. The parties do not contest that discrimination on the basis of sex¹ is subject to what our cases call “heightened scrutiny,” and the citation of one of those cases (preferably one involving men rather than women, see, e.g., Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 723-724 (1982)) is all that was needed.

The Court also spends time establishing that the use of sex as a proxy for particular views or sympathies is unwise and perhaps irrational. The opinion stresses the lack of statistical evidence to support the widely held belief that, at least in certain types of cases, a juror’s sex has some statistically significant predictive value as to how the juror will behave. See ante, at 137-139, and n. 9. This assertion seems to place the Court in opposition to its earlier Sixth Amendment “fair cross-section” cases. See, e. g., Taylor v. Louisiana, 419 U. S. 522, 532, n. 12 (1975) (“Controlled studies . . . have concluded that women bring to juries their own perspectives and values that influence both jury deliberation *158and result”). But times and trends do change, and unisex is unquestionably in fashion. Personally, I am less inclined to demand statistics, and more inclined to credit the perceptions of experienced litigators who have had money on the line. But it does not matter. The Court’s fervent defense of the proposition iln’y a pas de différence entre les hommes et les femmes (it stereotypes the opposite view as hateful “stereotyping”) turns out to be, like its recounting of the history of sex discrimination against women, utterly irrelevant. Even if sex was a remarkably good predictor in certain cases, the Court would find its use in peremptories unconstitutional. See ante, at 139, n. 11; cf. ante, at 148-149 (O’Connor, J., concurring).

Of course the relationship of sex to partiality would have been relevant if the Court had demanded in this case what it ordinarily demands: that the complaining party have suffered some injury. Leaving aside for the moment the reality that the defendant himself had the opportunity to strike women from the jury, the defendant would have some cause to complain about the prosecutor’s striking male jurors if male jurors tend to be more favorable toward defendants in paternity suits. But if men and women jurors are (as the Court thinks) fungible, then the only arguable injury from the prosecutor’s “impermissible” use of male sex as the basis for his peremptories is injury to the stricken juror, not to the defendant. Indeed, far from having suffered harm, petitioner, a state actor under our precedents, see Georgia v. McCollum, 505 U. S. 42, 50-51 (1992); cf. Edmonson v. Leesville Concrete Co., 500 U. S. 614, 626-627 (1991), has himself actually inflicted harm on female jurors.² The Court today *159presumably supplies petitioner with a cause of action by applying the uniquely expansive third-party standing analysis of Powers v. Ohio, 499 U. S. 400, 415 (1991), according petitioner a remedy because of the wrong done to male jurors. This case illustrates why making restitution to Paul when it is Peter who has been robbed is such a bad idea. Not only has petitioner, by implication of the Court’s own reasoning, suffered no harm, but the scientific evidence presented at trial established petitioner’s paternity with 99.92% accuracy. Insofar as petitioner is concerned, this is a case of harmless error if there ever was one; a retrial will do nothing but divert the State’s judicial and prosecutorial resources, allowing either petitioner or some other malefactor to go free.

The core of the Court’s reasoning is that peremptory challenges on the basis of any group characteristic subject to heightened scrutiny are inconsistent with the guarantee of the Equal Protection Clause. That conclusion can be reached only by focusing unrealistically upon individual exercises of the peremptory challenge, and ignoring the totality of the practice. Since all groups are subject to the peremptory challenge (and will be made the object of it, depending upon the nature of the particular case) it is hard to see how any group is denied equal protection. See id., at 423-424 (Scalia, J., dissenting); Batson v. Kentucky, 476 U. S. 79, 137-138 (1986) (Rehnquist, J., dissenting). That explains why peremptory challenges coexisted with the Equal Protection Clause for 120 years. This case is a perfect example of how the system as a whole is evenhanded. While the only claim before the Court is petitioner’s complaint that the prosecutor struck male jurors, for every man *160struck by the government petitioner’s own lawyer struck a woman. To say that men were singled out for discriminatory treatment in this process is preposterous. The situation would be different if both sides systematically struck individuals of one group, so that the strikes evinced group-based animus and served as a proxy for segregated venire lists. See Swain v. Alabama, 380 U. S. 202, 223-224 (1965). The pattern here, however, displays not a systemic sex-based animus but each side’s desire to get a jury favorably disposed to its case. That is why the Court’s characterization of respondent’s argument as “reminiscent of the arguments advanced to justify the total exclusion of women from juries,” ante, at 138, is patently false. 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. See Powers, supra, at 424 (Scalia, J., dissenting). There is discrimination and dishonor in the former, and not in the latter — which explains the 106-year interlude between our holding that exclusion from juries on the basis of race was unconstitutional, Strauder v. West Virginia, 100 U. S. 303 (1880), and our holding that peremptory challenges on the basis of race were unconstitutional, Batson v. Kentucky, supra.

Although the Court’s legal reasoning in this case is largely obscured by anti-male-chauvinist oratory, to the extent such reasoning is discernible it invalidates much more than sex-based strikes. After identifying unequal treatment (by separating individual exercises of peremptory challenge from the process as a whole), the Court applies the “heightened scrutiny” mode of equal protection analysis used for sex-based discrimination, and concludes that the strikes fail heightened scrutiny because they do not substantially further an important government interest. The Court says that the only important government interest that could be served by peremptory strikes is “securing a fair and impar*161tial jury,” ante, at 137, and n. 8.³ It refuses to accept respondent’s argument that these strikes further that interest by eliminating a group (men) which may be partial to male defendants, because it will not accept any argument based on “‘the very stereotype the law condemns.’” Ante, at 138 (quoting Powers, 499 U. S., at 410). This analysis, entirely eliminating the only allowable argument, implies that sex-based strikes do not even rationally further a legitimate government interest, let alone pass heightened scrutiny. That places all peremptory strikes based on any group characteristic at risk, since they can all be denominated “stereotypes.” Perhaps, however (though I do not see why it should be so), only the stereotyping of groups entitled to heightened or strict scrutiny constitutes “the very stereotype the law condemns” — so that other stereotyping (e. g., wide-eyed blondes and football players are dumb) remains OK. Or perhaps when the Court refers to “impermissible stereotypes,” ante, at 139, n. 11, it means the adjective to be limiting rather than descriptive — so that we can expect to learn from the Court’s peremptory/stereotyping jurisprudence in the future, which stereotypes the Constitution frowns upon and which it does not.

Even if the line of our later cases guaranteed by today’s decision limits the theoretically boundless Batson principle to race, sex, and perhaps other classifications subject to heightened scrutiny (which presumably would include religious belief, see Larson v. Valente, 456 U. S. 228, 244-246 (1982)), much damage has been done. It has been done, first and foremost, to the peremptory challenge system, which *162loses its whole character when (in order to defend against “impermissible stereotyping” claims) “reasons” for strikes must be given. The right of peremptory challenge “ ‘is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.’” Lewis v. United States, 146 U. S. 370, 378 (1892), quoting Lamb v. State, 36 Wis. 424, 427 (1874). See also Lewis, supra, at 376; United States v. Marchant, 12 Wheat. 480, 482 (1827) (Story, J.); 4 W. Blackstone, Commentaries *353. The loss of the real peremptory will be felt most keenly by the criminal defendant, see Georgia v. McCollum, 505 U. S. 42 (1992), whom we have until recently thought “should not be held to accept a juror, apparently indifferent, whom he distrusted for any reason or for no reason.” Lamb, supra, at 426. And make no mistake about it: there really is no substitute for the peremptory. Voir dire (though it can be expected to expand as a consequence of today’s decision) cannot fill the gap. The biases that go along with group characteristics tend to be biases that the juror himself does not perceive, so that it is no use asking about them. It is fruitless to inquire of a male juror whether he harbors any subliminal prejudice in favor of unwed fathers.

And damage has been done, secondarily, to the entire justice system, which will bear the burden of the expanded quest for “reasoned peremptories” that the Court demands. The extension of Batson to sex, and almost certainly beyond, cf. Batson, 476 U. S., at 124 (Burger, C. J., dissenting), will provide the basis for extensive collateral litigation, which especially the criminal defendant (who litigates full time and cost free) can be expected to pursue. While demographic reality places some limit on the number of cases in which race-based challenges will be an issue, every case contains a potential sex-based claim. Another consequence, as I have mentioned, is a lengthening of the voir dire process that already burdens trial courts.

*163The irrationality of today’s strike-by-strike approach to equal protection is evident from the consequences of extending it to its logical conclusion. If a fair and impartial trial is a prosecutor’s only legitimate goal; if adversarial trial stratagems must be tested against that goal in abstraction from their role within the system as a whole; and if, so tested, sex-based stratagems do not survive heightened scrutiny — then the prosecutor presumably violates the Constitution when he selects a male or female police officer to testify because he believes one or the other sex might be more convincing in the context of the particular case, or because he believes one or the other might be more appealing to a predominantly male or female jury. A decision to stress one line of argument or present certain witnesses before a mostly female jury — for example, to stress that the defendant victimized women — becomes, under the Court’s reasoning, intentional discrimination by a state actor on the basis of gender.

* * *

In order, it seems to me, not to eliminate any real denial of equal protection, but simply to pay conspicuous obeisance to the equality of the sexes, the Court imperils a practice that has been considered an essential part of fair jury trial since the dawn of the common law. The Constitution of the United States neither requires nor permits this vandalizing of our people’s traditions.

For these reasons, I dissent.