dissenting:
I respectfully dissent.
Although the majority's effort to combat what it perceives to be a form of discrimination is well intentioned, the result reached is unworkable and contrary to the law of this and almost every other circuit. Until today’s decision, federal appellate case law dealing with the racial makeup of juries was uniform; to establish a violation of the Constitution, the defendant had to prove a systematic exclusion of blacks from petit juries that extended over a number of cases. Absent such a showing, the objective existence or nonexistence of a “proper” reason for the prosecutor’s use of a peremptory challenge was irrelevant because the “presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court.” Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965) (emphasis added).1
The majority recognizes that Swain is the starting point for any analysis of the alleged discriminatory use of peremptory challenges. The teaching of Swain is clear. After reviewing the nature and purpose of peremptory challenges and commenting on their importance in our system of justice, the Court stated:
In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.
380 U.S. at 222, 85 S.Ct. at 837 (emphasis added).
While the majority finds Swain distasteful, it concedes that for purposes of McCray’s equal protection claim Swain is controlling. However, in an attempt to circumvent Swain, the majority finds that a string of Sixth Amendment cases opens the door Swain so clearly closed. The majority’s approach is contrary to the law established in a host of federal appellate court decisions, including the law of this Circuit.
In United States v. Newman, 549 F.2d 240 (2d Cir.1977), decided after almost all of the Sixth Amendment cases on which the majority relies, we recognized the continued validity of Swain. Although Newman involved a due process claim, the Court was cognizant of Sixth Amendment standards, stating that the case before it concerned the defendants’ right to “a fair and impartial jury and one which represents a fair cross-section of the community.” 549 F.2d at 244. In rejecting the defendants’ challenge of the prosecutor’s use of peremptory challenges, the Court stated:
*1136Nor under the circumstances did the defendants under any existing law have the right to inquire into and interrogate the prosecutor about his reasons for peremptorily challenging the four Black veniremen in the jury pool. Swain v. Alabama, supra, is the governing authority on this matter.
549 F.2d at 246 (emphasis added).
Moreover, in United States v. Danzey, 476 F.Supp. 1065 (E.D.N.Y.1979), a Sixth Amendment claim was brought under facts similar to those in the case before us. Indeed, the prosecutor in Danzey admitted: “I make it a practice to attempt to exclude as best I can all jurors ... of the same ethnic background as the defendant.” Id. at 1066. In rejecting the defendant’s Sixth Amendment claim, Judge Nickerson found Swain and Newman controlling. We affirmed without opinion, 620 F.2d 286 (2d Cir.1980), and in a concurrence in the denial of a petition for a rehearing en banc, four members of our Court stated that the “use of peremptory challenges based on a group bias assumption denies no cognizable legal rights ‘in any particular case.’ ” United States v. Danzey, 622 F.2d 1065, 1066 (2d Cir.) (emphasis added, quoting Swain, 380 U.S. at 221), cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980). They went on to add “no relief is appropriate unless the offending pattern is sufficiently general and pervasive to support a clear inference of motivation or intent to discriminate against a particular racial or ethnic group.” 622 F.2d at 1066 (emphasis added, citing Newman, 549 F.2d at 249-50). The majority should not so lightly disregard our prior decisions.
Even if the law of our Circuit were not clear, the overwhelming weight of authority from other circuits calls for a rejection of the majority’s approach. At least five circuits have rejected the notion that the Supreme Court’s later Sixth Amendment decisions, particularly Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), have undercut Swain. United States v. Clark, 737 F.2d 679, 681-82 (7th Cir.1984) (practical considerations support prevailing view that Swain is still controlling law); Willis v. Zant, 720 F.2d 1212, 1219 n. 14 (11th Cir.1983), cert. denied, - U.S. -, 104 S.Ct. 3546, 82 L.Ed.2d 849 (1984) (Sixth Amendment analysis of Taylor does not extend to petit juries); United States v. Whitfield, 715 F.2d 145, 146-47 (4th Cir.1983) (appellant made Sixth Amendment claim, Swain cited as controlling); United States v. Childress, 715 F.2d 1313 (8th Cir.1983) (en banc), cert. denied, - U.S.-, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984) (Taylor’s Sixth Amendment analysis does not overrule Swain)) Weathersby v. Morris, 708 F.2d 1493, 1497 (9th Cir.1983), cert. denied, - U.S.-, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984) (Taylor analysis does not extend to petit juries). Moreover, three other circuits have recently reaffirmed the validity of Swain, although it is unclear from their decisions whether Sixth Amendment claims were advanced. United States v. Canel, 708 F.2d 894, 898 (3d Cir.), cert. denied, - U.S. -, 104 S.Ct. 165, 78 L.Ed.2d 151 (1983) (“We decline to change the rule that neither side need justify the use of peremptory challenges.”); United States v. Jenkins, 701 F.2d 850, 859-60 (10th Cir.1983) (Swain called for rejection of appellant’s claim which only challenged conduct at his trial); United States v. Durham, 587 F.2d 799, 801 (5th Cir.1979) (defendant must show systematic exclusion of blacks from petit juries).
The weight of authority against the majority’s Swain /Sixth Amendment analysis exists for good reason: the Sixth Amendment cases are not inconsistent with Swain. Like Swain, the Sixth Amendment decisions that involve exclusion of prospective jurors focus on systematic exclusion. See, e.g., Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (state may not challenge for cause potential jurors opposed to death penalty; possibly due process rather than Sixth Amendment grounds); Taylor v. Louisiana, 419 U.S. 522, 533, 95 S.Ct. 692, 699, 42 L.Ed.2d 690 (1975) (“women cannot be systematically excluded from jury panels from which petit juries are drawn”); Duren v. Missou*1137ri, 439 U.S. 357, 360, 99 S.Ct. 664, 666, 58 L.Ed.2d 579 (1979) (the “systematic exclusion of women that results in jury venires averaging less than 15% female violates the Constitution’s fair-cross-section requirement”).
Moreover, the Sixth Amendment cases do not show a retreat from Swain. For example, in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), on which the majority relies, Justice White stated:
All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels; a defendant may not, for example, challenge the makeup of a jury merely because no members of his race are on the jury, but must prove that his race has been systematically excluded. See Swain v. Alabama, 380 U.S. 202, 208-209 [85 S.Ct. 824, 829-830, 13 L.Ed.2d 759] (1965) ....
406 U.S. at 413, 92 S.Ct. at 1634 (plurality opinion; emphasis added). In addition, in Taylor, the Court made it clear that it imposed
no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, Fay v. New York, 332 U.S. 261, 284 [67 S.Ct. 1613, 1625, 91 L.Ed. 2043] (1947); Apodaca v. Oregon, 406 U.S., at 413 [92 S.Ct. at 1634] (plurality opinion); but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.
419 U.S. at 538, 95 S.Ct. at 702 (emphasis added). I therefore find the majority’s analysis of the interaction between Swain and Sixth Amendment precedent unpersuasive.
Even if we could decide this case in a vacuum, removed from the precedent against the majority’s approach, there are a number of practical factors that militate against the majority’s decision. First, the majority gives far too little weight to the peremptory challenge’s long history as a tool used to ensure an impartial jury.2 An attorney who uses her challenges to exclude from the jury members of the same race, religion, sex, occupation, class or ethnic background as her opponent’s client is not invidiously discriminating against members of that group. Rather, the attorney is trying to ensure that her client faces a jury that at least will be unbiased and at best will be receptive to her view of the case. We must remember that at the same time the defense counsel, who may well have more challenges, is engaged in the same process. The result of this adversarial system should be an impartial jury. As the Supreme Court recognized in Swain, the nature of this system means that peremptory challenges are often
exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be____ Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which *1138may include their group affiliations, in the context of the case to be tried.
380 U.S. at 220-21, 85 S.Ct. at 836 (footnotes omitted).
Although the majority finds such group based assumptions “fallacious” and “pernicious,” an attorney has not only a right but an obligation to challenge a prospective juror who may be biased, even if the basis of her belief is a broad generalization, which may not in fact be true. Thus, the actual issue in this case is not whether a prosecutor may systematically exclude members of some group from sitting on juries but whether a prosecutor may use peremptory challenges to exclude individual members of a group because she believes that in that particular case they may be biased in favor of members of the defendant’s group.3 A competent prosecutor will only strike a member of the defendant’s group in situations where she believes the possibility of that individual having a group bias — even if very small — is greater than the possibility of some other prospective juror having a bias. Where the group based assumption against members of the defendant’s group is outweighed by some other assumption, the prosecutor will turn to the other assumptions; for instance, if a black college student is being tried in a draft registration case, the prosecutor may prefer to challenge a white social worker rather than a black veteran. By banning the use of such assumptions, the majority has severely limited the effectiveness of the peremptory challenge. See also King v. County of Nassau, 581 F.Supp. 493, 500-01 (E.D.N.Y.1984).
In addition, the majority fails to confront the obvious implication of its ruling for defense attorneys. As the Seventh Circuit recently recognized, “[i]t would be hard to argue that only a defendant should be allowed to challenge racially motivated peremptory challenges____ As it cannot be right to believe that racial discrimination is wrong only when it harms a criminal defendant, and not when it harms the law abiding community represented by the prosecutor____” Clark, 737 F.2d at 682. See also Florida v. Neil, 457 So.2d 481 (Fla.1984) (Alderman, J, dissenting); Commonwealth v. Soares, 377 Mass. 461, 489-90 n. 35, 387 N.E.2d 499, 517 n. 35, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); People v. Wheeler, 22 Cal.3d 258, 282 n. 29, 148 Cal.Rptr. 890, 907 n. 29, 583 P.2d 748, 765 n. 29 (1978).
This very problem, and the negative impact it will have for defendants, was foreseen in Newman.
The right to peremptory challenges is of great importance, both to the Government and to the defendants — but mostly to the defendants, because they are personally involved in the result of the trial and for this reason usually have more of the peremptory challenges than the Government. These challenges provide one of the most effective assurances that a party will have a fair and impartial jury____ Once, however, a plaintiff or prosecutor is required to submit to inter*1139rogation concerning his reasons for making a peremptory challenge, it will probably not be long before defendants will be required to do likewise. This, in all likelihood, would spell the end of peremptory challenges; and Blacks and other recognizable minority groups would thereby suffer a major loss in the removal of one of the greatest safeguards the law has provided for a fair trial.
549 F.2d at 250 n. 8.4
The majority also fails to confront the virtual limitlessness of its Sixth Amendment analysis. To establish a prima facie case under the majority’s standard, the defendant need only show “(1) the group alleged to be excluded is a cognizable group in the community, and (2) there is a substantial likelihood that the challenges leading to this exclusion have been made on the basis of the individual venireperson’s group affiliation rather than because of any indication of a possible inability to decide the case on the basis of the evidence presented.” Majority op. at 1131-32 (emphasis added). Thus, a group based assumption may not be used to exclude a member of any Sixth Amendment “cognizable” or “distinctive group.” “Distinctive groups” under the Sixth Amendment are those that “are sufficiently numerous and distinct” that if they are systematically excluded from jury venires, “the Sixth Amendment fair-cross-section requirement cannot be satisfied.” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979) (quoting Taylor, 419 U.S. at 531, 95 S.Ct. at 698). For example, in any given community, people opposed to the death penalty may be a “distinctive group” and thus under the majority’s analysis they may not be peremptorily challenged.5 It also appears that men, women, old people, young people, laborers, professionals, Democrats, Republicans, etc. are distinctive groups. Therefore, no group based assumptions may be used to eliminate any member of these groups. Such a change is not simply “a modification of the way in which the peremptory challenge system works,” Majority op. at 1132. It effectively eliminates the peremptory challenge for all but the most frivolous reasons (people who wear gray, smile, or wear contact lenses).
I believe the result the majority reaches spells the end of the peremptory challenge as an effective jury selection tool. Again a return to Swain is appropriate. As the Supreme Court stated in Swain, the peremptory challenge is by definition “an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.” Swain, 380 U.S. at 219, 85 S.Ct. at 835 (quoting Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892)). It added: “The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.” Swain, 380 U.S. at 220, 85 S.Ct. at 836. The Court concluded by recognizing that once the prosecutor is required to explain her challenge,
*1140[t]he challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.
380 U.S. at 222, 85 S.Ct. at 837.
The continued validity of the Court’s concern in Swain was recently pointed out by the Seventh Circuit. In expressing its doubt that Swain has been undercut by the Sixth Amendment cases, that court recognized the practical considerations that weigh against such an analysis. First among these was “[t]he potential for stretching out criminal trials that are already too long, by making the voir dire a Title VII proceeding in miniature.” Clark, 737 F.2d at 682. The court also observed that if the prosecutor is faced with having to defend his peremptory challenges,
it is hard to see how the peremptory challenge ... will survive. Whenever counsel alleged that his opponent had a racial or similar type of motivation in exercising a peremptory challenge (whether he used that challenge to exclude a white or a black — and it would have to be one or the other — or, extending the principle as one could hardly resist doing, a man or a woman, a Jew or a gentile, etc.) the opponent would have to come forward with a reason for wanting to exclude the juror. In other words he would have to provide good cause, or something very close to it; and the peremptory challenge would collapse into the challenge for cause.
Id.
The majority, however, steadfastly asserts that it is not imposing a cause standard. However, the line it is attempting to draw is at best gossamery. Moreover, any inquiry into the motivation of the prosecutor entails a tremendous burden. As Judge Wexler recently explained:
Even assuming the existence of a clear theoretical rule regarding what types of peremptory challenges are legal, enormous difficulties would arise from any attempt to implement such a rule in practice. A great deal of time, effort and expense would be necessary to attempt to determine whether any given peremptory challenge is legal. Any such determination would entail the extremely difficult task of assessing the internal motives of the attorneys. It might also require an inquiry by the Court into the ethnic or religious backgrounds of prospective jurors, thereby promoting the very emphasis on such factors which the rule seeks to avoid____ Most important of all, attorneys, confronted with a rule completely or partially restricting their right to act with the internal motive of helping their clients when making peremptory challenges, will be under enormous pressure to lie regarding their motives. Such a rule will foster hypocrisy and disrespect for our system of justice. Indeed, it is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal.
King v. County of Nassau, 581 F.Supp. 493, 501-02 (E.D.N.Y.1984) (holding Swain is still controlling law).6
In sum, the majority reaches its conclusion only by rejecting the overwhelming weight of authority and by minimizing the burdens that its result will place on the court and the litigants. Although it is offended by any group based assumptions, it fails to recognize that in a particular case such assumptions are not illogical and may *1141weigh heavily with the attorney attempting to select a jury. By acting on these assumptions, the attorney is not invidiously discriminating against members of the group excluded, be they blacks, whites, men, women, Catholics or Jews. Rather the attorney is using his best judgment and acting within an adversarial system designed to create an impartial and unbiased jury, which is, after all, the overriding Sixth Amendment goal. The majority’s attempt to fine tune this system, even though well intentioned, is bound to cause more harm than good.
I would vacate the order of the district court granting the petition for a writ of habeas corpus and remand with directions to dismiss the petition.
. The majority refers on several occasions to the state’s concession that the use of race as a factor in making peremptory challenges violates the Sixth and Fourteenth Amendments. However, the majority recognized that the state’s concession of a possible equal protection violation was erroneous. I agree with them on that point, but I also find the state's concession of a possible Sixth Amendment violation to be erroneous. Moreover, given the precedent in this area, I find the state’s concession to be incomprehensible from a legal viewpoint.
. The majority places great emphasis on the absence of a constitutional provision allowing peremptory challenges. While there is no constitutional requirement for peremptory challenges, the challenge is designed to secure an impartial jury, which is the overriding Sixth Amendment objective. The Supreme Court has recognized its importance in holding the peremptory challenge to be "a necessary part of trial by jury,” Swain, 380 U.S. at 219, 85 S.Ct. at 835, and "essential in contemplation of law to the impartiality of the trial,” Lewis, 146 U.S. at 378, 13 S.Ct. at 139. Thus, I believe that the majority has unduly minimized the significance of the peremptory challenge.
. At times in its opinion the majority attempts to cast the case before us as one involving systematic exclusion. Indeed, based on the Sixth Amendment guarantee of an impartial jury in "all criminal cases," the majority states that a systematic exclusion may be established in an individual case. Majority Op. at 1130-1131, 1132. I find it difficult to accept its interpretation of systematic. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Court defined the term systematic in the following passage: "[Petitioners’] undisputed demonstration that a large discrepancy occurred not just Occasionally, but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the underrepresentation was systematic — that is, inherent in the particular jury-selection process utilized." 439 U.S. at 366, 99 S.Ct. at 669. Thus, to establish systematic exclusion, even in Sixth Amendment cases, the defendant must show case after case exclusion. If in the case before us the defendant cottld make this showing, Swain would outlaw the practice and there would be no need to look to the Sixth Amendment. However, such an analysis does not satisfy the majority because it finds a Swain violation too difficult to prove. Thus, it redefines systematic and develops an easier test. What the majority ignores in so doing is that perhaps the reason Swain violations have not been proved in an "acceptable” number of cases is that they do not exist in an acceptable number of cases.
. The extension of the majority’s restrictions to the defense will create problems. The prosecution will then have every right, for example, to contend that a black defendant may not use his peremptory challenges exclusively against whites. This not only doubles potential delay and requires all attorneys to keep records of who they are challenging and why, it may also mean that a minority defendant will have to challenge some minority prospective jurors peremptorily in order to rebut a charge of discrimination. Furthermore, the defense is often entitled to more peremptory challenges than the prosecution is, see, e.g., Fed.R.Crim.P. 24(b). Consequently, in order to avoid an inference of discrimination the defense may be forced to challenge more minority prospective jurors than the prosecution would. This is even more “pernicious" than the result the majority condemns.
. Such a result is contrary to the holdings of at least two circuits which have considered this issue. Dobbert v. Strickland, 718 F.2d 1518, 1524-25 (11th Cir.1983) (although under Wither-spoon state may not challenge prospective jurors opposed to death penalty for cause, state may peremptorily challenge those prospective jurors); Jordan v. Watkins, 681 F.2d 1067, 1070 (5th Cir.1982) (Witherspoon inapplicable to situation where prospective juror was peremptorily challenged). Thus, to the extent that the majority relies on Witherspoon, Majority Op. at 1129, its result is again contrary to the law of other circuits.
. The majority believes that its prima facie test will be difficult to meet. I find its belief unwarranted. To establish a prima facie case in their case-by-case approach, the defendant will only have to show that members of the distinctive group were repeatedly challenged. Thus, if a venire contains three members of a “cognizable group” and all three are challenged or maybe two of three are challenged, a prima facie case appears to be established. I find it hard to believe that this result will occur in only a "few” cases. Moreover, the impact of the threat of having to justify every challenge will be significant, see supra note 4.