But Justice Scalia's separate dissent was interesting to me, because he spent much of it waxing poetic about the need and right of litigants to pursue racially diverse juries -- or at least select their jurors race-consciously. After noting his agreement with Justice O'Connor's argument that the majority is wrong "in principle" to assert that peremptory challenges in civil litigation are state actions, he continued to write that:
[today's opinion] is also unfortunate in its consequences.
The concrete benefits of the Court's newly discovered constitutional rule are problematic. It will not necessarily be a net help, rather than hindrance, to minority litigants in obtaining racially diverse juries. In criminal cases, Batson v. Kentucky, 476 U.S. 79 (1986), already prevents the prosecution from using race-based strikes. The effect of today's decision (which logically must apply to criminal prosecutions) will be to prevent the defendant from doing so - so that the minority defendant can no longer seek to prevent an all-white jury, or to seat as many jurors of his own race as possible. To be sure, it is ordinarily more difficult to prove race-based strikes of white jurors, but defense counsel can generally be relied upon to do what we say the Constitution requires. So in criminal cases, today's decision represents a net loss to the minority litigant. In civil cases, that is probably not true - but it does not represent an unqualified gain either. Both sides have peremptory challenges, and they are sometimes used to assure, rather than to prevent, a racially diverse jury.
Although today's decision neither follows the law nor produces desirable concrete results, it certainly has great symbolic value. To overhaul the doctrine of state action in this fashion - what a magnificent demonstration of this institution's uncompromising hostility to race-based judgments, even by private actors! The price of the demonstration is, alas, high, and much of it will be paid by the minority litigants who use our courts. I dissent. [500 U.S. at 644-45]
I find it interesting that Scalia appears to recognize here that stripping minority actors of their ability to use race conscious procedures is, in fact a problem. More than a problem -- morally objectionable; a bar to basic fairness! The move towards color-blindness, he's arguing, is qualitatively harmful to minority litigants, and that's a concern he wishes the court to be mindful of.
An interesting argument, and one that gave me pause when reading this case. Kind of incongruous with the bulk of Scalia's jurisprudence, though, no?