When we talk about gender discrimination, we usually think about schools, jobs, or public benefits. But in 1994, the Supreme Court confronted a different question:
Can the government pick a jury based on whether you're a man or a woman?
The case was called J.E.B. v. Alabama, and on the surface, it looked like a routine child support dispute. The state of Alabama was pursuing a paternity claim on behalf of a woman against a man. But during jury selection, something unusual happened: the state used almost all its peremptory strikes to remove male jurors.
The result? An all-female jury.
The defense objected: this wasn’t random—it was discrimination.
The legal question: Does striking jurors based solely on gender violate the Equal Protection Clause?
The Court said yes. And in doing so, it extended a powerful principle: gender, like race, cannot be used as a shortcut for judging competence or bias.
Jury Selection and the Equal Protection Clause
Until this case, the Supreme Court had already ruled in Batson v. Kentucky (1986) that you can’t strike jurors based on race. That would violate the Equal Protection rights of both the defendant and the excluded juror.
J.E.B. asked whether the same logic applied to sex.
Justice Blackmun, writing for the majority, said it did:
“Gender, like race, is an unconstitutional proxy for juror competence and impartiality.”
In other words, it doesn’t matter if you think men will be less sympathetic in a child support case. You can’t treat them differently because of that assumption. Stereotypes aren’t a valid basis for exclusion.
The Real Stakes: Trust in the System
This wasn’t just about one man’s right to a mixed-gender jury. It was about public trust in the judicial process.
Blackmun put it bluntly: Letting lawyers strike jurors based on gender “undermines public confidence” and “the integrity of our judicial system is jeopardized.” Jury service is a core civic duty, a sign of full citizenship. Excluding people because of their sex sends the message that they can’t be trusted to think fairly, reason clearly, or judge impartially.
And if courts are places where bias is baked in from the very start through how juries are selected, then how can we ask the public to trust their decisions?
The Dissent: What About Discretion?
Justice Scalia dissented, joined by Chief Justice Rehnquist and Justice Kennedy. His argument was practical: peremptory strikes are supposed to be subjective. That’s the whole point. They let lawyers use instinct and strategy—not rigid rules—to shape a jury.
If we start policing those decisions too closely, Scalia warned, we might as well eliminate peremptory strikes altogether. And besides, he added, there’s no constitutional right to serve on a jury. The defendant deserves a fair trial, but that doesn’t mean juries have to reflect every demographic perfectly.
It was a sharp disagreement—between a vision of equality that protects against even subtle bias, and one that prioritizes efficiency and tradition.
Why This Case Mattered
J.E.B. was the first time the Court applied heightened scrutiny inside the courtroom. It showed that even traditionally “discretionary” spaces weren’t exempt from equal protection principles.
It also reinforced a key message from earlier gender cases: you can’t justify discrimination with generalizations. Not about who’s nurturing. Not about who’s sympathetic. Not even in the name of courtroom strategy.
And it pushed the Court’s gender equality jurisprudence one step further. The standard used here—“exceedingly persuasive justification”—wasn’t limited to school admissions or military programs. It now applied in real-time decisions, with real consequences, in the justice system itself.
Why It Still Resonates
We live in a moment where questions about bias—implicit, structural, institutional—are front and center. J.E.B. reminds us that the small, behind-the-scenes decisions can reflect and reinforce big, harmful assumptions.
If we’re serious about equality under the law, it can’t stop at written rules. It has to reach the places where discretion is exercised. Because discretion without scrutiny is often where bias hides.
Should the Constitution protect against bias in areas traditionally left to discretion, like jury selection, school discipline, or policing? Where should courts draw the line?