From Proving Pretext to Proving Discrimination: The Real Lesson of Miller-El and Synder

Joshua Polster, New York University School of Law

Abstract

In determining whether prosecutors have discriminated in their use of peremptory challenges, courts generally focus on whether defendants are able to prove that the nondiscriminatory reasons that prosecutors proffer for their challenges are pretextual. This focus is a natural result of the McDonnell Douglas framework, which the Supreme Court adopted for peremptory challenges from employment discrimination law. This Article argues that because of differences between jury selection and employment, the methods that employees use to prove pretext are not suited to peremptory challenges. Accordingly, while lower courts generally have interpreted two recent Supreme Court cases—Miller-El v. Dretke and Snyder v. Louisiana—as enumerating factors to be used in determining pretext, the cases are better interpreted as models for how courts should shift their focus from pretext.