The reasoning in Case 3-3 is played out with Batson v. Kentucky standing tall and visible in the background. The legal system reinforces our ethical preference for order. The resulting dependability of our legal rules serves as a guide for business decisions, facilitating the many transactions required by modern business. Nevertheless, the courts recognize that rules must evolve as our social needs and understandings change. Hence, the courts must struggle with achieving a balance between order and flexibility. J.E.B. provides an opportunity to use our critical thinking skills to see this tension in action.
1. What facts in our society have become more visible such that Justice Blackmun feels it appropriate to expand the application of Batson? Clue: What about our history makes Blackmun’s reasoning less likely to have been the basis for a Supreme Court decision in 1950?
2. Justice Blackmun disagrees with the respondent concerning the comparative “level of discrimination” experienced by nonwhites and women. Legal reasoning frequently contains phrases like level of discrimination that require some numerical determination—but recognize that clear numbers measuring such a level are hard to come by. As critical thinkers, you can often see soft spots in reasoning by asking, “Now, how are they measuring that concept?” Could you help Justice Blackmun measure “level of discrimination” by suggesting what data might be useful for this determination? Clue: Start with the number of people potentially affected, the probability that they would be affected, and the extent of the harm.
3. Justice Scalia does not categorically disagree with extension of Batson. What facts would have had to be different for Scalia to have concurred with the majority? Clue: Find the section in his dissent in which he explains the inadequacies in the majority’s reasoning.
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