Cite as: 601 U. S. ____ (2024) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
DILLION GAGE COMPTON v. TEXAS
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF TEXAS
No. 23–5682. Decided April 15, 2024
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE JACKSON joins,
dissenting from the denial of certiorari.
“The Constitution forbids striking even a single prospec-
tive juror for a discriminatory purpose.” Flowers v. Missis-
sippi, 588 U. S. 284, 303 (2019). A pattern of strikes against
jurors with the same race or sex suggests that a prosecutor
is striking jurors based on impermissible stereotypes about
those protected characteristics rather than the juror’s indi-
vidual views. “More powerful than these bare statistics,
however, are side-by-side comparisons of [jurors with cer-
tain protected characteristics] who were struck and [jurors
without those characteristics] allowed to serve.” Miller-El
v. Dretke, 545 U. S. 231, 241 (2005). “If a prosecutor’s prof-
fered reason for striking a [female] panelist applies just as
well to an otherwise-similar [male] who is permitted to
serve, that is evidence tending to prove purposeful discrim-
ination.” Ibid. A prosecutor may claim that he is striking
a woman based on her hesitation to impose the death pen-
alty. When the prosecutor fails to strike a man who has
expressed even greater hesitancy, however, it indicates that
the woman was struck based on unconstitutional stereo-
types about women rather than objective facts.
In this capital case, prosecutors used 13 of their 15 per-
emptory strikes on women. They offered only one justifica-
tion in each case: the woman’s views on the death penalty.
In reviewing the challenged jurors, the Texas Court of
Criminal Appeals (TCCA) failed to conduct a side-by-side
2 COMPTON v. TEXAS
SOTOMAYOR, J., dissenting
comparison. Instead, it tested the prosecution’s justifica-
tion in the aggregate, looking to the women’s views on cap-
ital punishment as a group instead of individually. That
legal error hid the best indication of discriminatory pur-
pose. Under a side-by-side comparison, it is clear that at
least one woman struck by the State had more favorable
views on the death penalty than at least one man the State
did not strike. I would summarily vacate the decision below
and remand for the TCCA to apply the proper comparative
analysis.
I
A
Dillion Gage Compton was charged with capital murder
for the death of a prison guard. After voir dire, there were
42 qualified venirepersons for a 12-person jury. Of those 42
potential jurors, 23 were women and 19 were men, making
the initial pool 55% women. The State used 13 of its 15
strikes on women. After both sides submitted their strikes,
the 12-person jury consisted of only four women and eight
men, or 33% women.
Compton challenged the State’s peremptory strikes based
on J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 (1994),
arguing that the State had discriminated based on gender.
In response, the prosecutor explained he was “certainly fo-
cused almost single-han[dedly] on the issue of the death
penalty.” 21 Tr. 16 (Sept. 25, 2018). The defense objected
that the “gender basis has not been explained to the Court
sufficiently.” Id., at 18. The trial court denied the chal-
lenge.
After trial, the jury convicted Compton of capital murder.
The trial court sentenced him to death.
B
On appeal, Compton again challenged the State’s per-
Cite as: 601 U. S. ____ (2024) 3
SOTOMAYOR, J., dissenting
emptory strikes under J. E. B. Compton identified four fe-
male potential jurors struck by the State for whom the rec-
ord allegedly did not support the State’s rationale. He iden-
tified three male potential jurors who expressed views on
the death penalty as or less favorable than the struck
women. The State defended its views-on-the-death-penalty
rationale for each struck woman but never compared their
views with those of the men it did not strike. Thus, it did
not respond to Compton’s comparative argument that the
State had retained men with similar views on the death
penalty to the struck women.
In evaluating the J. E. B. challenge, the TCCA deter-
mined that Compton had made a prima facie showing of
bias under the first step of Batson v. Kentucky, 476 U. S. 79
(1986). Under the second step, the court reasoned that the
State had provided a gender-neutral reason for the strikes:
that “each individual . . . expressed more concern, hesita-
tion, or opposition to imposing the death penalty than those
venirepersons the State chose not to strike.” 666 S. W. 3d
685, 711 (Tex. Crim. App. 2023).
In examining whether that reason was pretextual under
the third step, the TCCA found the “statistical evidence . . .
concerning.” Ibid. It noted that the State’s use of 13 of 15
peremptory strikes against women combined with “the fact
that only four women made it onto the jury despite the
panel having more women than men does raise concerns.”
Ibid.
The court then purported to examine “[s]ide-by-side com-
parisons of stricken and accepted venirepersons.” Ibid. It
declined to “engag[e] in an exhaustive comparative analysis
of each prospective juror.” Ibid. Despite claiming to “[c]om-
par[e] [the male] venirepersons to the female venirepersons
struck by the State,” id., at 712, the TCCA failed to examine
individually the four female potential jurors identified by
4 COMPTON v. TEXAS
SOTOMAYOR, J., dissenting
Compton as having favorable views on the death penalty.1
Instead, it conducted its analysis entirely in the aggregate.
It concluded that “the State was, in fact, focused on death-
penalty issues and struck most of the female venirepersons
based on their responses” that indicated reservations about
the death penalty. Id., at 711 (emphasis added). The TCCA
reasoned by bullet point that:
“Most of the State-stricken female venirepersons rated
themselves a three or four on a scale of one-to-six when
asked about their support for the death penalty;
“Most said they were generally opposed to the death
penalty except in a few cases, or that they were neutral
on the appropriateness of the death penalty;
“Nearly all disagreed that the death penalty ‘gives the
criminal what they deserve;’
“Nearly all expressed some favorable views about the
option of life without parole, the possibility of rehabili-
tation, religious redemption, and/or the fact that life
without parole forces offenders to live with the conse-
quences of their crimes;
“Nearly all agreed that life without parole could be an
adequate punishment for capital murder;
“Some, but not all, emphasized a defendant’s back-
ground and upbringing as relevant factors in assessing
whether the death penalty versus life without parole
was appropriate.” Id., at 711–712 (emphasis added).
——————
1 The TCCA knew how to conduct a side-by-side comparison. Compton
also challenged three strikes based on Batson v. Kentucky, 476 U. S. 79
(1986), arguing that the State discriminated based on race. The State
struck one Black man, one Black woman, and one Hispanic man. The
resulting 12-person jury included 1 Hispanic man and 11 white people.
The TCCA conducted side-by-side comparisons of the struck jurors and
three unstruck white male comparators. See 666 S. W. 3d, at 700–710.
It inexplicably failed to do so for the J. E. B. challenge, which required
equally scrupulous consideration.
Cite as: 601 U. S. ____ (2024) 5
SOTOMAYOR, J., dissenting
The TCCA held that “[c]omparatively speaking, the veni-
repersons—men and women—who were not struck by the
State generally expressed more favorable views towards the
death penalty and less favorable views towards the life-
without-parole option and mitigating evidence than did the
female venirepersons described above.” Id., at 712 (empha-
sis added). It distinguished the three male comparators not
struck by the State as “overall favorable for the State’s pre-
ferred punishment.” Ibid. (emphasis added). It rejected
Compton’s J. E. B. claim and affirmed the trial court’s judg-
ment of conviction and sentence of death.
II
This Court has repeatedly emphasized that the “Consti-
tution forbids striking even a single prospective juror for a
discriminatory purpose.” Flowers, 588 U. S., at 303; Foster
v. Chatman, 578 U. S. 488, 499 (2016); Snyder v. Louisiana,
552 U. S. 472, 478 (2008). Challenges to jury selection
based on unconstitutional proxies like race, see Batson, 476
U. S., at 96, or gender, see J. E. B., 511 U. S., at 128, exist
to protect the equal protection rights of “potential jurors, as
well as [defendants], . . . to jury selection procedures that
are free from state-sponsored group stereotypes,” ibid.
These challenges guard against prosecutorial bias: not only
the perception that a prospective juror might favor a de-
fendant because they share a protected characteristic, but
that a prospective juror might hold a particular view be-
cause of a stereotype based on race or gender. See id., at
141–142; Batson, 476 U. S., at 104–105 (Marshall, J., con-
curring).
The third step of this Court’s test in particular protects
against impermissible stereotypes by checking the State’s
proffered reason against its other decisions. “If a prosecu-
tor’s proffered reason for striking a [female] panelist applies
just as well to an otherwise-similar [male] who is permitted
6 COMPTON v. TEXAS
SOTOMAYOR, J., dissenting
to serve, that is evidence tending to prove purposeful dis-
crimination to be considered at Batson’s third step.” Dretke,
545 U. S., at 241.
Here, the TCCA failed to conduct that important side-by-
side comparison of struck female jurors against male jurors
permitted to serve. Before the trial court, the TCCA, and
this Court, the State offered only one reason for striking
these women: their hesitations about imposing the death
penalty. If a struck female panelist’s views on the death
penalty were more favorable than an otherwise-similar
man permitted to serve, that would be strong evidence of
invidious discrimination under Batson’s third step. Yet the
TCCA evaluated the strikes only in the aggregate, reason-
ing that “most” or “nearly all” struck women expressed
views less favorable toward the death penalty than the men
permitted to serve. That analysis directly contradicts the
principle that striking even one prospective juror for a dis-
criminatory reason violates the Constitution.
Considering only one example in this record suggests that
the prosecutor’s proffered reason was pretextual. V. P., a
female juror struck by the prosecutors, strongly supported
capital punishment. V. P. rated herself a five out of six in
terms of her support for the death penalty. She endorsed
punishment as more important than rehabilitation and
agreed that capital punishment was “absolutely justified”
and “just and necessary.” 14 Record 5912. She was “con-
cern[ed]” about life in prison instead of the death penalty
because sometimes the prisoner could “continu[e] to do
harm to others while in prison.” Id., at 5914. When ques-
tioned about mitigation during voir dire, she said that read-
ing the mitigation special issues made her angry, because
“some people use just whatever—you know, they blame—I
don’t like the blame game.” 17 Tr. 180 (Sept. 17, 2018).
In contrast, the State did not strike a male prospective
juror who expressed less favorable views of the death pen-
Cite as: 601 U. S. ____ (2024) 7
SOTOMAYOR, J., dissenting
alty. That prospective juror, P. K., wrote that he was op-
posed to the death penalty except in some cases, and that
he would be “very conflicted” about returning a verdict of
death, underlining “very” for emphasis. 12 Record 5252,
5256. He agreed that “[c]apital punishment is not neces-
sary in modern civilization” and embraced the idea that
“[e]xecution of criminals is a disgrace to civilized society.”
Id., at 5257. He thought that Texas used the death penalty
“too often.” Id., at 5261.
This case illustrates the hazards of analysis by aggregate.
The TCCA may have been right that most of the struck
women expressed less favorable views on the death penalty
than most of the men permitted to serve. When the State,
however, extends a reason true of many female potential
jurors to another female potential juror not based on what
she says, but based on the fact that she is a woman, it
crosses the line into invidious discrimination. Just because
most female potential jurors had hesitations about the
death penalty does not mean that V. P. did.
The State never offered any justification other than fe-
male potential jurors’ views on the death penalty for its
strikes.2 The TCCA erred when it allowed the views of
other female prospective jurors to infect its assessment of
the State’s justification for V. P.’s strike.
——————
2 In the State’s brief before the TCCA, it emphasized that V. P. “was
struck by the State and the defense.” Brief for Appellee in No. AP–
77,087, p. 47. A strike by the defense, however, is irrelevant to a Batson
or J. E. B. inquiry, which focuses “solely on evidence concerning the pros-
ecutor’s exercise of peremptory challenges.” Batson, 476 U. S., at 96; see
also Miller-El v. Dretke, 545 U. S. 231, 255, n. 14 (2005) (“[Defendant’s]
shuffles are flatly irrelevant to the question whether prosecutors’ shuf-
fles revealed a desire to exclude blacks”). Indeed, it makes sense that
Compton sought to exclude a juror like V. P. who expressed such pro-
death penalty views. Moreover, this evidence of potential bias against
V. P. could have informed the challenges against the three other struck
women Compton identified.
8 COMPTON v. TEXAS
SOTOMAYOR, J., dissenting
* * *
“America’s trial judges operate at the front lines of Amer-
ican justice.” Flowers, 588 U. S., at 302. They bear “the
primary responsibility to enforce Batson and prevent . . .
discrimination from seeping into the jury selection process.”
Ibid. That responsibility requires scrutinizing the prosecu-
tor’s proffered reason for a peremptory strike by comparing
any struck juror challenged by the defense with a retained
juror who does not share the same protected characteristic.
When a court conducts a Batson or J. E. B. inquiry not
based on individual comparisons but by aggregate, it too
runs the risk of generalizing based on impermissible stere-
otypes. I would summarily vacate the decision below and
remand for the TCCA to correct its legally erroneous anal-
ysis with respect to the J. E. B.-challenged jurors. I respect-
fully dissent.