Decades ago, a peremptory challenge was indeed peremptory. But in 1986, in Batson v. Kentucky, the Supreme Court held that peremptorily excusing a potential juror because of race violated constitutional safeguards. In 1994, in J.E.B. v. Alabama, challenges motivated by gender were ruled out. Both rulings were based on a heightened-scrutiny analysis.
Now, the U.S. Court of Appeals for the Ninth Circuit is poised to decide whether prospective jurors may be peremptorily challenged because of their sexual orientation. In SmithKline Beecham Corporation v. Abbott Laboratories, a complicated antitrust case between pharmaceutical giants, SmithKline appealed a jury verdict on a number of grounds, including that Abbott had peremptorily challenged a potential juror because he was gay. Although California state courts had held peremptory challenges on the basis of sexual orientation unconstitutional, previous Ninth Circuit decisions appeared to uphold them.
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