On behalf of T.B., the unwed mother of a minor child, the State of Alabama filed a complaint for paternity and child support against J.E.B. A panel of 12 males and 24 females was called by the court as potential jurors. After the court removed three individuals for cause, only 10 males remained. The state used its peremptory challenges to remove nine male jurors and J.E.B. removed the tenth, resulting in an all-female jury. The court rejected J.E.B.’s objection to the gender-based challenges, and the jury found J.E.B. to be the father. J.E.B. appealed to the court of appeals, who affirmed the trial court’s decision that the Equal Protection Clause does not prohibit gender-based challenges. The Alabama Supreme Court denied certiorari, and J.E.B. then appealed to the U.S. Supreme Court.

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.