A Jury Still Out

WHEN the United States Supreme Court ruled in 1986 that prosecutors no longer could exclude blacks from juries through the use of so-called peremptory challenges, it struck a blow for a more color-blind judicial process that helped redress past discrimination against blacks.

In a ruling Tuesday extending that same reasoning to gender, the majority tried to strike a similar blow for a more gender-neutral justice system. However, it may have used the wrong case to move in what ultimately is a right direction.

By a 6-3 margin, the majority held that the jury-selection process in a child-support case violated the defendant's rights under the Constitution's equal-protection clause. The prosecution had used its allotment of peremptory challenges - dismissing prospective jurors without stating a reason - to exclude men from the jury. The defense used its quota of peremptory challenges to exclude women. Each lawyer was trying to build a sympathetic jury, a commonly accepted practice. But because of the overall makeup of the jury pool, the jury that finally was seated was all female. The male defendant lost his case.

In the majority opinion, outgoing Justice Harry Blackmun wrote, ``We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.'' Yet the remedy for race sought to redress the widespread systematic exclusion of a group from juries, especially in the South. Justice Blackmun's ruling, which he built citing past discrimination against women, established a sweeping principle based on the narrow idiosyncratic exclusion of one group - men - from one jury.

In principle, peremptory challenges are a way to try to harness life experience and instincts about human nature to serve the cause of justice. Justice Sandra Day O'Connor alluded to this in her concurring opinion, in which she raised concerns about the decision's effect on the ability of women - either as defendants or as plaintiffs - to see justice done in cases involving spouse abuse, sexual harassment, or rape.

Tuesday's ruling is likely to spawn a series of tests that try to define the limits of particular peremptory challenges based on gender. To the extent that the ruling further reduces mindless, malicious discrimination, it is valuable. Yet it must be clarified in ways that prevent it from undermining justice.