Concurring opinion by
Justice GRAVES.I concur in the majority opinion, but I write separately to question the efficacy of the modern peremptory challenge system.
There is no even-handed method in place for trial courts to evaluate the neutrality of a peremptory challenge, thereby creating inconsistent application and potential for seating a biased juror. For instance, in this Commonwealth, a trial judge sitting in McCracken County may find a peremptory challenge neutral, while a judge in Fayette County may find the same challenge a pretext for discrimination. Notwithstanding the subjectivity of such an inquiry, accepting an attorney’s pretextual reasoning at face value may be the most attractive alternative if a trial judge does not wish to accuse a colleague of discriminatory motives. Raymond J. Broderick, Why the Peremptory Challenge Should Be Abolished, 65 TEMP. L. REV. 369, 422 (1992).
The opinion of the majority knocks peremptory challenges from their prior “substantial right” perch. Consequently, applying harmless error review to a curative peremptory challenge does not unfairly deprive a litigant of a challenge; rather it furthers the state’s valid interest in seating an impartial jury. William G. Childs, The Intersection of Peremptory Challenges, Challenges for Cause, and Harmless Error, 27 AM. J. CRIM. L. 49, 65 (1999) (discussing the policy concerns of Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988)).
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) intended to prohibit race discrimination in the jury selection process. In a concurring opinion, Justice Marshall recognized, “[Batson] will not end the racial discrimination that per-emptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.” Id. at 102-03, 106 S.Ct. 1712 (Marshall, J., concurring).
Justice Breyer also recently quoted this passage in his concurring opinion in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Justice Breyer notes “the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge!,]” Id. at 2340, and proposes that “it is necessary to *116reconsider Batson’s test and the peremptory challenge system as a whole.” Id. at 2344 (Breyer, J., concurring).
While I support the changes that will occur as a result of this opinion, I hope it may be one step closer to the inevitable implosion of the current peremptory challenge system. In closing, I am reminded, “the right to a jury free of discriminatory taint is constitutionally protected — the right to use peremptory challenges is not.” Id. (Breyer, J., concurring).