Today, the SCOTUS reversed the 9th Cir. in a habeas case of a defendant challenging the prosecutor's peremtory challenges. Justice Breyer concurred in the opinion but wrote separately to express his doubts about Batson's effectiveness to ferret out unconstitutional peremtory challenges and echoed Justice Thurgood Marshall's opinion that we should abolish the use of peremptories.

On an abstract level, I agree with Breyer that if the choice is between a common law custom and the 14th Amendment's command, then the choice is clear. But on a practical level, I think there are quite a few instances where the challenges can be necessary. I had the pleasure of sitting through a jury selection this past summer where the AUSA wanted a juror dismissed for cause because he could not hear. At sidebar, the judge allowed the prosecutor an extra peremtory challenge to dismiss that juror so long as he was not the first to go. Instead of hearing (pun intended) the AUSA tell the court that he cannot hear sufficiently well enough to fairly judge, this particular juror instead heard the AUSA thank and excuse him without any explanation.

The moral of the story is that sometimes dismissal without any explanation is best. This doens't mean that peremptories should remain. Frankly, I don't see why the judge could not simply thank and excuse the juror himself without revealing the details of the sidebar. The record of the sidebar includes the cause for dismissal for an appeal down the road. On the other hand, I don't think the defense counsel could have systematically dismissed every single potential juror with a degree in business or finance or experience in the field without the aid of peremptories in a case involving credit fraud.