Berghuis v. Smith

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BERGHUIS, WARDEN v. SMITH

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT

No. 08–1402. Argued January 20, 2010—Decided March 30, 2010
Criminal defendants have a Sixth Amendment right to trial by an im
partial jury drawn from a fair cross section of the community. See
Taylor v. Louisiana, 419 U. S. 522. To establish a prima facie viola
tion of the fair-cross-section requirement, a defendant must prove
that: (1) a group qualifying as “distinctive” (2) is not fairly and rea
sonably represented in jury venires, and (3) “systematic exclusion” in
the jury-selection process accounts for the underrepresentation.
Duren v. Missouri, 439 U. S. 357, 364.
At voir dire in the Kent County Circuit Court trial of respondent
Smith, an African-American, the venire panel included between 60
and 100 individuals, only 3 of whom, at most, were African-American.
At that time, African-Americans constituted 7.28% of the County’s
jury-eligible population, and 6% of the pool from which potential ju
rors were drawn. The court rejected Smith’s objection to the panel’s
racial composition, an all-white jury convicted him of second-degree
murder and felony firearm possession, and the court sentenced him
to life in prison with the possibility of parole.
On order of the Michigan Court of Appeals, the trial court con
ducted an evidentiary hearing on Smith’s fair-cross-section claim.
The evidence at the hearing showed, inter alia, that under the juror
assignment order in effect when Smith’s jury was empaneled, the
County assigned prospective jurors first to local district courts, and,
only after filling local needs, made remaining persons available to the
countywide Circuit Court, which heard felony cases like Smith’s.
Smith calls this procedure “siphoning.” The month after Smith’s voir
dire, however, the County reversed course and adopted a Circuit-
Court-first assignment order. It did so based on the belief that the
district courts took most of the minority jurors, leaving the Circuit
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Syllabus

Court with a jury pool that did not represent the entire County. The
trial court noted two means of measuring the underrepresentation of
African-Americans on Circuit Court venires. First, the court de
scribed the “absolute disparity” test, under which the percentage of
African-Americans in the jury pool (6%) is subtracted from the per
centage of African-Americans in the local, jury-eligible population
(7.28%). According to this measure, African-Americans were under
represented by 1.28%. Next, the court set out the “comparative dis
parity” test, under which the absolute disparity (1.28%) is divided by
the percentage of African-Americans in the jury-eligible population
(7.28%). The quotient (18%) indicated that, on average, African-
Americans were 18% less likely, when compared to the overall jury
eligible population, to be on the jury-service list. In the 11 months
after Kent County discontinued the district-court-first assignment
policy, the comparative disparity, on average, dropped from 18% to
15.1%. The hearing convinced the trial court that African-Americans
were underrepresented on Circuit Court venires. But Smith’s evi
dence, the trial court held, was insufficient to prove that the juror
assignment order, or any other part of the jury-selection process, had
systematically excluded African-Americans. The court therefore re
jected Smith’s fair-cross-section claim.
The state intermediate appellate court reversed and ordered a new
trial with jurors selected under the Circuit-Court-first assignment
order. Reversing in turn, the Michigan Supreme Court concluded
that Smith had not established a prima facie Sixth Amendment vio
lation. This Court, the state High Court observed, has specified no
preferred method for measuring whether representation of a distinc
tive group in the jury pool is fair and reasonable. The court noted
that lower federal courts had applied three tests: the absolute and
comparative disparity tests and a standard deviation test. Adopting
a case-by-case approach allowing consideration of all three means of
measuring underrepresentation, the court found that Smith had
failed to establish a legally significant disparity under any measure
ment. Nevertheless giving Smith the benefit of the doubt on under
representation, the court determined that he had not shown system
atic exclusion.
Smith then filed a federal habeas petition. The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) prohibits federal ha
beas relief unless the state court’s adjudication “resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States,” 28 U. S. C. §2254(d)(1), or “resulted in a deci
sion that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding,”
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§2254(d)(2). Finding no infirmity in the Michigan Supreme Court’s
decision when assessed under AEDPA’s standards, the District Court
dismissed Smith’s petition. The Sixth Circuit reversed. The Court of
Appeals ruled, first, that courts should use the comparative disparity
test to measure underrepresentation where, as here, the allegedly ex
cluded group is small. The court then held that Smith’s comparative
disparity statistics demonstrated that African-Americans’ represen
tation in County Circuit Court venires was unfair and unreasonable.
It next stated that Smith had shown systematic exclusion. In accord
with the Michigan intermediate appellate court, the Sixth Circuit be
lieved that the district-court-first assignment order significantly re
duced the number of African-Americans available for Circuit Court
venires. Smith was entitled to relief, the Sixth Circuit concluded, be
cause no important state interest supported the district-court-first al
location system.
Held: The Sixth Circuit erred in ruling that the Michigan Supreme
Court’s decision “involv[ed] an unreasonable application o[f] clearly
established Federal law,” §2254(d)(1). Duren hardly establishes—no
less “clearly” so—that Smith was denied his Sixth Amendment right
to an impartial jury drawn from a fair cross section of the commu
nity. Pp. 10–16.
(a) The Duren defendant readily met all three parts of the Court’s
prima facie test when he complained of the dearth of women in a
county’s jury pool. First, he showed that women in the county were
both “numerous and distinct from men.” 439 U. S., at 364. Second,
to establish underrepresentation, he proved that women were 54% of
the jury-eligible population, but accounted for only 26.7% of those
summoned for jury service, and only 14.5% of those on the postsum
mons weekly venires from which jurors were drawn. Id., at 364–366.
Finally, to show the “systematic” cause of the underrepresentation,
he pointed to Missouri’s law permitting any woman to opt out of jury
service and to the manner in which the county administered that
law. This Court noted that “appropriately tailored” hardship exemp
tions would likely survive a fair-cross-section challenge if justified by
an important state interest, id., at 370, but concluded that no such
interest could justify the exemption for each and every woman, id., at
369–370. Pp. 10–11.
(b) Neither Duren nor any other decision of this Court specifies the
method or test courts must use to measure underrepresentation.
Each of the three methods employed or identified by the courts be
low—absolute disparity, comparative disparity, and standard devia
tion—is imperfect. Absolute disparity and comparative disparity
measurements can be misleading where, as here, members of the dis
tinctive group compose only a small percentage of the community’s
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Syllabus

jury-eligible population. And it appears that no court has relied ex
clusively on a standard deviation analysis. Even absent AEDPA’s
constraint, this Court would have no cause to take sides here on the
appropriate method or methods for measuring underrepresentation.
Although the Michigan Supreme Court concluded that Smith’s statis
tical evidence failed to establish a legally significant disparity under
either the absolute or comparative disparity tests, the court neverthe
less gave Smith the benefit of the doubt on underrepresentation in
order to reach the issue ultimately dispositive in Duren: To the extent
underrepresentation existed, was it due to “systematic exclusion”?
See Duren, 439 U. S., at 364. Pp. 11–13.
(c) Smith’s evidence gave the Michigan Supreme Court little reason
to conclude that the district-court-first assignment order had any
significant effect on the representation of African-Americans on Cir
cuit Court venires. Although the record established that some
County officials believed that the assignment order created racial
disparities, and the County reversed the order in response, the belief
was not substantiated by Smith’s evidence. He introduced no evi
dence that African-Americans were underrepresented on the Circuit
Court’s venires in significantly higher percentages than on the Dis
trict Court for Grand Rapids, which had the County’s largest African-
American population. He did not address whether Grand Rapids had
more need for jurors per capita than any other district in Kent
County. And he did not compare the African-American representa
tion levels on Circuit Court venires with those on the Federal District
Court venires for the same region. See Duren, 439 U. S., at 367,
n. 25. Smith’s best evidence of systematic exclusion was the decline
in comparative underrepresentation, from 18 to 15.1%, after Kent
County reversed its assignment order. But that evidence indicated
no large change and was, in any event, insufficient to prove that the
original assignment order had a significantly adverse impact on the
representation of African-Americans on Circuit Court venires. Pp.
13–14.
(d) In addition to renewing his “siphoning” argument, Smith urges
that a laundry list of factors—e.g., the County’s practice of excusing
prospective jurors without adequate proof of alleged hardship, and
the refusal of County police to enforce orders for prospective jurors to
appear—combined to reduce systematically the number of African-
Americans appearing on jury lists. No “clearly established” prece
dent of this Court supports Smith’s claim. Smith urges that one sen
tence in Duren, 439 U. S., at 368–369, places the burden of proving
causation on the State. But Smith clipped that sentence from its con
text: The sentence does not concern the demonstration of a prima face
case; instead, it speaks to what the State might show to rebut the de
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fendant’s prima facie case. The Michigan Supreme Court was there
fore far from “unreasonable,” §2254(d)(1), in concluding that Duren
first and foremost required Smith himself to show that the underrep
resentation complained of was due to systematic exclusion. This
Court, furthermore, has never “clearly established” that jury
selection-process features of the kind on Smith’s list can give rise to a
fair-cross-section claim. Rather, the Taylor Court “recognized broad
discretion in the States” to “prescribe relevant qualifications for their
jurors and to provide reasonable exemptions.” 419 U. S., at 537–538.
And in Duren, the Court understood that hardship exemptions re
sembling those Smith assails might well “survive a fair-cross-section
challenge.” 439 U. S., at 370. Pp. 14–16.
543 F. 3d 326, reversed and remanded.

GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS,
J., filed a concurring opinion.
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Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–1402
_________________

MARY BERGHUIS, WARDEN, PETITIONER v.

DIAPOLIS SMITH

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[March 30, 2010]

JUSTICE GINSBURG delivered the opinion of the Court.
The Sixth Amendment secures to criminal defendants
the right to be tried by an impartial jury drawn from
sources reflecting a fair cross section of the community.
See Taylor v. Louisiana, 419 U. S. 522 (1975). The ques
tion presented in this case is whether that right was ac
corded to respondent Diapolis Smith, an African-American
convicted of second-degree murder by an all-white jury in
Kent County, Michigan in 1993. At the time of Smith’s
trial, African-Americans constituted 7.28% of Kent
County’s jury-eligible population, and 6% of the pool from
which potential jurors were drawn.
In Duren v. Missouri, 439 U. S. 357 (1979), this Court
described three showings a criminal defendant must make
to establish a prima facie violation of the Sixth Amend
ment’s fair-cross-section requirement. He or she must
show: “(1) that the group alleged to be excluded is a ‘dis
tinctive’ group in the community; (2) that the representa
tion of this group in venires from which juries are selected
is not fair and reasonable in relation to the number of
such persons in the community; and (3) that this under
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representation is due to systematic exclusion of the group
in the jury-selection process.” Id., at 364. The first show
ing is, in most cases, easily made; the second and third are
more likely to generate controversy.
The defendant in Duren readily met all three measures.
He complained of the dearth of women in the Jackson
County, Missouri, jury pool. To establish underrepresen
tation, he proved that women were 54% of the jury-eligible
population, but accounted for only 26.7% of the persons
summoned for jury service, and only 14.5% of the persons
on the postsummons weekly venires from which jurors
were drawn. To show the “systematic” cause of the under
representation, Duren pointed to Missouri’s law exempt
ing women from jury service, and to the manner in which
Jackson County administered the exemption. Concluding
that no significant state interest could justify Missouri’s
explicitly gender-based exemption, this Court held the
law, as implemented in Jackson County, violative of the
Sixth Amendment’s fair-cross-section requirement.
We here review the decision of the United States Court
of Appeals for the Sixth Circuit holding that Smith “sat
isf[ied] the prima facie test established by Duren,” and
granting him habeas corpus relief, i.e., release from im
prisonment absent a new trial commenced within 180 days
of the Court of Appeals’ order. 543 F. 3d 326, 336 (2008).
Despite marked differences between Smith’s case and
Duren’s, and a cogent Michigan Supreme Court decision
holding that Smith “ha[d] not shown . . . systematic exclu
sion,” People v. Smith, 463 Mich. 199, 205, 615 N. W. 2d 1,
3 (2000), the Sixth Circuit found the matter settled. Cog
nizant of the restrictions Congress placed on federal ha
beas review of state-court convictions, the Court of Ap
peals considered that a decision contrary to its own would
“involv[e] an unreasonable application o[f] clearly estab
lished Federal law, as determined by the Supreme Court
of the United States,” 28 U. S. C. §2254(d)(1). 543 F. 3d,
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Opinion of the Court

at 335.
The Sixth Circuit erred in so ruling. No decision of this
Court “clearly establishe[s]” Smith’s entitlement to fed
eral-court relief. According to the Sixth Circuit, Smith
had demonstrated that a Kent County prospective-juror
assignment procedure, which Smith calls “siphoning,”
“systematic[ally] exclu[ded]” African-Americans. Under
this procedure, Kent County assigned prospective jurors
first to local district courts, and, only after filling local
needs, made remaining persons available to the county
wide Circuit Court, which heard felony cases like Smith’s.
The Michigan Supreme Court, however, had rejected
Smith’s “siphoning” plea for lack of proof that the assign
ment procedure caused underrepresentation. Smith, 463
Mich., at 205, 615 N. W. 2d, at 3. As that determination
was not at all unreasonable, the Sixth Circuit had no
warrant to disturb it. See §2254(d)(2).
In addition to renewal of his “siphoning” argument,
Smith here urges that a host of factors combined to reduce
systematically the number of African-Americans appear
ing on Kent County jury lists, for example, the Kent
County court’s practice of excusing people without ade
quate proof of alleged hardship, and the refusal of Kent
County police to enforce orders for prospective jurors to
appear. Brief for Respondent 53–54. Our decisions do not
address factors of the kind Smith urges. We have cau
tioned, however, that “[t]he fair-cross-section principle
must have much leeway in application.” Taylor, 419 U. S.,
at 537–538; see id., at 537 (Court’s holding that Sixth
Amendment is violated by systematic exclusion of women
from jury service “does not augur or authorize the fashion
ing of detailed jury-selection codes by federal courts.”).
I
A
On November 7, 1991, Christopher Rumbley was shot
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Opinion of the Court

and killed during a bar brawl in Grand Rapids, Michigan.
The bar was crowded at the time of the brawl, with 200-to
300 people on the premises. All patrons of the bar were
African-American. The State charged Smith with the
murder in Kent County Circuit Court.
Voir dire for Smith’s trial took place in September 1993.
The venire panel included between 60 and 100 individuals.
The parties agree that, at most, three venire members
were African-American. Smith unsuccessfully objected to
the composition of the venire panel.
Smith’s case proceeded to trial before an all-white jury.
The case for the prosecution turned on the identity of the
man who shot Rumbley. Thirty-seven witnesses from the
bar, including Smith, testified at the trial. Of those, two
testified that Smith fired the gun. Five testified that the
shooter was not Smith, and the remainder made no identi
fications of the shooter. The jury convicted Smith of sec
ond-degree murder and possession of a firearm during a
felony, and the court sentenced him to life imprisonment
with the possibility of parole.
B
On first appeal, the Michigan Court of Appeals ordered
the trial court to conduct an evidentiary hearing on
Smith’s fair-cross-section claim. The hearing occurred in
early 1998. Smith’s evidence showed that Grand Rapids,
the largest city in Kent County, was home to roughly 37%
of Kent County’s population, and to 85% of its African-
American residents. Felony charges in Kent County were
tried in a sole Circuit Court. Misdemeanors were prose
cuted in 12 district courts, each covering a discrete geo
graphical area. To fill the courts’ venires, Kent County
sent questionnaires to prospective jurors. The Circuit
Court Administrator testified that about 5% of the forms
were returned as undeliverable, and another 15 to 20%
were not answered. App. 13a. From the pool of prospec
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Opinion of the Court

tive jurors who completed questionnaires, the County
granted requests for hardship exemptions, e.g., for lack of
transportation or child care. Id., at 21a. Kent County
then assigned nonexempt prospective jurors to their local
district courts’ venires. After filling the district courts’
needs, the County assigned the remaining prospective
jurors to the Circuit Court’s panels. Id., at 20a, 22a.
The month after voir dire for Smith’s trial, Kent County
reversed the assignment order. It did so, according to the
Circuit Court Administrator, based on “[t]he belief . . . that
the respective districts essentially swallowed up most of
the minority jurors,” leaving the Circuit Court with a jury
pool that “did not represent the entire county.” Id., at 22a.
The Jury Minority Representation Committee, its co-chair
testified, held the same view concerning the impact of
choosing district court jurors first and not returning un
used persons to the pool available for Circuit Court selec
tions. Id., at 64a–65a.
The trial court considered two means of measuring the
extent of underrepresentation of African-Americans on
Circuit Court venires: “absolute disparity” and “compara
tive disparity.” “Absolute disparity” is determined by
subtracting the percentage of African-Americans in the
jury pool (here, 6% in the six months leading up to Smith’s
trial) from the percentage of African-Americans in the
local, jury-eligible population (here, 7.28%). By an abso
lute disparity measure, therefore, African-Americans were
underrepresented by 1.28%. “Comparative disparity” is
determined by dividing the absolute disparity (here,
1.28%) by the group’s representation in the jury-eligible
population (here, 7.28%). The quotient (here, 18%),
showed that, in the six months prior to Smith’s trial,
African-Americans were, on average, 18% less likely, when
compared to the overall jury-eligible population, to be on
the jury-service list. App. to Pet. for Cert. 215a.
Isolating the month Smith’s jury was selected, Smith’s
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Opinion of the Court

statistics expert estimated that the comparative disparity
was 34.8%. App. 181a. In the 11 months after Kent
County discontinued the district-court-first assignment
policy, the comparative disparity, on average, dropped
from 18% to 15.1%. Id., at 102a–103a, 113a.
Smith also introduced the testimony of an expert in
demographics and economics, who tied the underrepresen
tation to social and economic factors. In Kent County, the
expert explained, these forces made African-Americans
less likely than whites to receive or return juror-eligibility
questionnaires, and more likely to assert a hardship ex
cuse. Id., at 79a–80a.
The hearing convinced the trial court that African-
Americans were underrepresented in Circuit Court veni
res. App. to Pet. for Cert. 210a. But Smith’s evidence was
insufficient, that court held, to prove that the juror
assignment order, or any other part of the jury-selection
process, had systematically excluded African-Americans.
Id., at 210a–212a. The court therefore rejected Smith’s
fair-cross-section claim.
C
The Michigan Court of Appeals concluded that the juror
allocation system in place at the relevant time did result
in the underrepresentation of African-Americans. Id., at
182a–183a. Reversing the trial court’s judgment, the
intermediate appellate court ordered a new trial, with
jurors selected under the Circuit-Court-first assignment
order installed shortly after the voir dire in Smith’s case.
Ibid.; see supra, at 5.
The Michigan Supreme Court, in turn, reversed the
Court of Appeals’ judgment, concluding that Smith “ha[d]
not established a prima facie violation of the Sixth
Amendment fair-cross-section requirement.” Smith, 463
Mich., at 207, 615 N. W. 2d, at 4. The Michigan High
Court observed, first, that this Court has specified “[no]
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preferred method for measuring whether representation of
a distinctive group in the jury pool is fair and reasonable.”
Id., at 203, 615 N. W. 2d, at 2. The court then noted that
lower federal courts had applied three different methods
to measure fair and reasonable representation: the abso
lute and comparative disparity tests, described supra, at 5,
and “the standard deviation test.”1
Recognizing that no single test was entirely satisfactory,
the Michigan Supreme Court adopted a case-by-case
approach allowing consideration of all three means of
measuring underrepresentation. Smith, 463 Mich., at
204, 615 N. W. 2d, at 3. Smith’s statistical evidence, the
court found, “failed to establish a legally significant dis
parity under either the absolute or comparative disparity
tests.” Id., at 204–205, 615 N. W. 2d, at 3. (The parties
had presented no expert testimony regarding application
of the standard deviation test. Id., at 204, n. 1, 615 N. W.
2d, at 3, n. 1; supra, at 5–6.)
Nevertheless “grant[ing] [Smith] the benefit of the doubt
on unfair and unreasonable underrepresentation,” the
Michigan Supreme Court ultimately determined that “he
ha[d] not shown systematic exclusion.” Smith, 463 Mich.,
at 203, 205, 615 N. W. 2d, at 2, 3. Smith’s evidence, the
court said, did not show “how the alleged siphoning of
African American jurors to district courts affected the
circuit court jury pool.” Id., at 205, 615 N. W. 2d, at 3. In
particular, the court observed, “[t]he record does not dis
close whether the district court jury pools contained more,
fewer, or approximately the same percentage of minority
jurors as the circuit court jury pool.” Ibid. The court also
ruled that “the influence of social and economic factors on
——————
1 Standard deviation analysis seeks to determine the probability that

the disparity between a group’s jury-eligible population and the group’s
percentage in the qualified jury pool is attributable to random chance.
See People v. Smith, 463 Mich. 199, 219–220, 615 N. W. 2d 1, 9–10
(2000) (Cavanagh, J., concurring).
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juror participation does not demonstrate a systematic
exclusion.” Id., at 206, 615 N. W. 2d, at 3.
D
In February 2003, Smith filed a habeas corpus petition
in the United States District Court for the Western Dis
trict of Michigan, reasserting his fair-cross-section claim.
Because Smith is “in custody pursuant to the judgment of
a State court,” the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), §2254, governed the District
Court’s review of his application for federal habeas corpus
relief. Under the controlling provision of AEDPA, codified
in §2254(d), a state prisoner’s application may not be
granted as to “any claim . . . adjudicated . . . in State
court” unless the state court’s adjudication
“(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly estab
lished Federal law, as determined by the Supreme
Court of the United States; or
“(2) resulted in a decision that was based on an un
reasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
Applying these standards, the District Court dismissed
Smith’s habeas petition. App. to Pet. for Cert. 40a–42a.
The Court of Appeals reversed. Where, as here, the
allegedly excluded group is small, the Sixth Circuit ruled,
courts should use the comparative disparity test to meas
ure underrepresentation. 543 F. 3d, at 338. In that
court’s view, Smith’s comparative disparity statistics
sufficed “to demonstrate that the representation of African
American veniremen in Kent County . . . was unfair and
unreasonable.” Ibid. As to systematic exclusion, the Sixth
Circuit, in accord with the Michigan intermediate appel
late court, believed that the juror-assignment order in
effect when Smith’s jury was empaneled significantly
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Opinion of the Court

reduced the number of African-Americans available for
Circuit Court venires. Id., at 342. Smith was entitled to
relief, the court concluded, because no important state
interest supported that allocation system. Id., at 345.2
The State petitioned for certiorari attacking the Sixth
Circuit’s decision on two principal grounds: First, the
State charged that the federal appellate court erred in
adopting the comparative disparity test to determine
whether a distinctive group was underrepresented in the
jury pool. Pet. for Cert. ii. Second, the State urged that,
in any event, “there was no . . . systematic exclusion of
African Americans from juries in Kent County, Michigan,”
id., at 25, and no warrant for the Sixth Circuit’s contrary
determination.3 We granted review, 557 U. S. ____ (2009),
and now reverse the Sixth Circuit’s judgment.
According to the Sixth Circuit, the Michigan Supreme
Court’s rejection of Smith’s Sixth Amendment plea “in
volved an unreasonable application o[f] clearly established
Federal law, as determined by [this Court in Duren].”
——————
2 The Sixth Circuit also found that the Michigan Supreme Court had

unreasonably applied Duren v. Missouri, 439 U. S. 357 (1979), when it
declared that social and economic factors could not establish systematic
exclusion. 543 F. 3d, at 341–342. Because such factors disproportion
ately affect African-Americans, the Sixth Circuit said, Kent County’s
routine grants of certain hardship exemptions “produced systematic
exclusion within the meaning of Duren.” Ibid. The Sixth Circuit held,
however, that the hardship exemptions could not establish a fair-cross
section claim because the State “has a significant interest [in] avoiding
undue burdens on individuals” by allowing such excuses. Id., at 345.
3 Although the question presented by the State homes in on the

proper measure for underrepresentation, it initially and more compre
hensively inquires whether Smith was denied his right to a jury drawn
from a fair cross section of the community. See Pet. for Cert. ii (asking
“[w]hether the U. S. Court of Appeals for the Sixth Circuit erred in
concluding that the Michigan Supreme Court failed to apply ‘clearly
established’ Supreme Court precedent under 28 U. S. C. §2254 on the
issue of the fair cross-section requirement under Duren . . . .”). We
therefore address that overarching issue.
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§2254(d)(1); see 543 F. 3d, at 345. We disagree. As ex
plained below, our Duren decision hardly establishes—no
less “clearly” so—that Smith was denied his Sixth
Amendment right to an impartial jury drawn from a fair
cross section of the community.
II
To establish a prima facie violation of the fair-cross
section requirement, this Court’s pathmarking decision in
Duren instructs, a defendant must prove that: (1) a group
qualifying as “distinctive” (2) is not fairly and reasonably
represented in jury venires, and (3) “systematic exclusion”
in the jury-selection process accounts for the underrepre
sentation. 439 U. S., at 364; see supra, at 1–2.
The defendant in Duren successfully challenged Jackson
County’s administration of a Missouri exemption permit
ting any woman to opt out of jury service. 439 U. S., at
360. The Court explained why it was plain that defendant
Duren had established a prima facie case. First, women in
Jackson County were both “numerous and distinct from
men.” Id., at 364 (quoting Taylor, 419 U. S., at 531).
Second, Duren’s “statistical presentation” showed gross
underrepresentation: Women were over half the jury
eligible population; in stark contrast, they accounted for
less than 15% of jury venires. 439 U. S., at 364–366.
Duren also demonstrated systematic exclusion with
particularity. He proved that women’s underrepresenta
tion was persistent—occurring in every weekly venire for
almost a year—and he identified the two stages of the
jury-selection process “when . . . the systematic exclusion
took place.” Id., at 366. First, questionnaires for prospec
tive jurors stated conspicuously that women could opt out
of jury service. Less than 30% of those summoned were
female, suggesting that women in large numbers claimed
the exemption at the questionnaire stage. Ibid. “More
over, at the summons stage women were . . . given another
 Cite as: 559 U. S. ____ (2010) 11

Opinion of the Court

opportunity to [opt out].” Id., at 366–367. And if a woman
ignored the summons, she was deemed to have opted out;
no further inquiry was made. Id., at 367. At this “final,
venire, stage,” women’s representation plummeted to
14.5%. Ibid. In the Federal District Court serving the
same territory, the Court noted, despite a women-only
childcare exemption, women accounted for nearly 40% of
those actually serving on juries. See ibid., n. 25.
The “disproportionate and consistent exclusion of
women from the [Jackson County] jury wheel and at the
venire stage,” the Court concluded, “was quite obviously
due to the system by which juries were selected.” Id., at
367. “[A]ppropriately tailored” hardship exemptions, the
Court added, would likely survive a fair-cross-section
challenge if justified by an important state interest. Id.,
at 370. But no such interest, the Court held, could justify
Missouri’s exemption for each and every woman—the
altogether evident explanation for the underrepresenta
tion. Id., at 369–370.
III

A

As the Michigan Supreme Court correctly observed, see
supra, at 6, neither Duren nor any other decision of this
Court specifies the method or test courts must use to
measure the representation of distinctive groups in jury
pools. The courts below and the parties noted three meth
ods employed or identified in lower federal court decisions:
absolute disparity, comparative disparity, and standard
deviation. See Smith, 463 Mich., at 204–205, 615 N. W.
2d, at 2–3; Brief for Petitioner 3; Brief for Respondent 26;
supra, at 6–7.
Each test is imperfect. Absolute disparity and compara
tive disparity measurements, courts have recognized, can
be misleading when, as here, “members of the distinctive
group comp[ose] [only] a small percentage of those eligible
12 BERGHUIS v. SMITH

Opinion of the Court

for jury service.” Smith, 463 Mich., at 203–204, 615 N. W.
2d, at 2–3. And to our knowledge, “[n]o court . . . has
accepted [a standard deviation analysis] alone as determi
native in Sixth Amendment challenges to jury selection
systems.” United States v. Rioux, 97 F. 3d 648, 655 (CA2
1996).
On direct review, as earlier stated, the Michigan Su
preme Court chose no single method “to measur[e]
whether representation was fair and reasonable.” Smith,
463 Mich., at 204, 615 N. W. 2d, at 3; see supra, at 7.
Instead, it “adopt[ed] a case-by-case approach.” Smith,
463 Mich., at 204, 615 N. W. 2d, at 3. “Provided that the
parties proffer sufficient evidence,” that court said, “the
results of all of the tests [should be considered].” Ibid. In
contrast, the Sixth Circuit declared that “[w]here the
distinctive group alleged to have been underrepresented is
small, as is the case here, the comparative disparity test is
the more appropriate measure of underrepresentation.”
543 F. 3d, at 338.
Even in the absence of AEDPA’s constraint, see supra,
at 8, we would have no cause to take sides today on the
method or methods by which underrepresentation is ap
propriately measured.4 Although the Michigan Supreme
Court concluded that “[Smith’s] statistical evidence failed
to establish a legally significant disparity under either the
absolute or comparative disparity tests,” Smith, 463 Mich.,
at 204–205, 615 N. W. 2d, at 3,5 that court nevertheless
——————
4 The State asks us to “adopt the absolute-disparity standard for

measuring fair and reasonable representation” and to “requir[e] proof
that the absolute disparity exceeds 10%” to make out a prima facie fair
cross-section violation. Brief for Petitioner 45–46. Under the rule the
State proposes, “the Sixth Amendment offers no remedy for complete
exclusion of distinct groups in communities where the population of the
distinct group falls below the 10 percent threshold.” Brief for Respon
dent 35. We need not reach that issue.
5 For similar conclusions, see, for example, United States v. Orange,

447 F. 3d 792, 798–799, and n. 7 (CA10 2006) (absolute disparity of
 Cite as: 559 U. S. ____ (2010) 13

Opinion of the Court

gave Smith “the benefit of the doubt on underrepresenta
tion,” id., at 205, 615 N. W. 2d, at 3. It did so in order to
reach the issue ultimately dispositive in Duren: To the
extent underrepresentation existed, was it due to “system
atic exclusion”? Ibid.; see Duren, 439 U. S., at 364.
B
Addressing the ground on which the Sixth Circuit rested
its decision, Smith submits that the district-court-first
assignment order systematically excluded African-
Americans from Kent County Circuit Court venires. Brief
for Respondent 46–48. But as the Michigan Supreme
Court not at all unreasonably concluded, Smith, 463
Mich., at 205, 615 N. W. 2d, at 3, Smith’s evidence scarcely
shows that the assignment order he targets caused under
representation. Although the record established that
some officials and others in Kent County believed that the
assignment order created racial disparities, and the
County reversed the order in response, supra, at 5, the
belief was not substantiated by Smith’s evidence.
Evidence that African-Americans were underrepre
sented on the Circuit Court’s venires in significantly
higher percentages than on the Grand Rapids District
Court’s could have indicated that the assignment order
made a critical difference. But, as the Michigan Supreme
Court noted, Smith adduced no evidence to that effect.
See Smith, 463 Mich., at 205, 615 N. W. 2d, at 3. Nor did
Smith address whether Grand Rapids, which had the
County’s largest African-American population, “ha[d] more

——————

3.57%; comparative disparities “rang[ing] from 38.17% to 51.22%”);

United States v. Royal, 174 F. 3d 1, 10 (CA1 1999) (2.97% absolute

disparity; 61.1% comparative disparity); United States v. Rioux, 97

F. 3d 648, 657–658 (CA2 1996) (2.08% absolute disparity; 29% com
parative disparity); State v. Gibbs, 254 Conn. 578, 591–593, 758 A. 2d
327, 337–338 (2000) (2.49% absolute disparity; 37% comparative
disparity).
14 BERGHUIS v. SMITH

Opinion of the Court

need for jurors per capita than [any other district in Kent
County].” Tr. of Oral Arg. 26; id., at 18, 37. Furthermore,
Smith did not endeavor to compare the African-American
representation levels in Circuit Court venires with those
in the Federal District Court venires for the same region.
See id., at 46–47; Duren, 439 U. S., at 367, n. 25.
Smith’s best evidence of systematic exclusion was of
fered by his statistics expert, who reported a decline in
comparative underrepresentation, from 18 to 15.1%, after
Kent County reversed the assignment order. See supra, at
5. This evidence—particularly in view of AEDPA’s in
struction, §2254(d)(2)—is insufficient to support Smith’s
claim that the assignment order caused the underrepre
sentation. As Smith’s counsel recognized at oral argu
ment, this decrease could not fairly be described as “a big
change.” Tr. of Oral Arg. 51; see ibid. (the drop was “a
step in the right direction”). In short, Smith’s evidence
gave the Michigan Supreme Court little reason to conclude
that the district-court-first assignment order had a signifi
cantly adverse impact on the representation of African-
Americans on Circuit Court venires.
C
To establish systematic exclusion, Smith contends, the
defendant must show only that the underrepresentation is
persistent and “produced by the method or ‘system’ used to
select [jurors],” rather than by chance. Brief for Respon
dent 38, 40. In this regard, Smith catalogs a laundry list
of factors in addition to the alleged “siphoning” that, he
urges, rank as “systematic” causes of underrepresentation
of African-Americans in Kent County’s jury pool. Id., at
53–54. Smith’s list includes the County’s practice of ex
cusing people who merely alleged hardship or simply
failed to show up for jury service, its reliance on mail
notices, its failure to follow up on nonresponses, its use of
residential addresses at least 15 months old, and the
 Cite as: 559 U. S. ____ (2010) 15

Opinion of the Court

refusal of Kent County police to enforce court orders for
the appearance of prospective jurors. Ibid.
No “clearly established” precedent of this Court supports
Smith’s claim that he can make out a prima facie case
merely by pointing to a host of factors that, individually or
in combination, might contribute to a group’s underrepre
sentation. Smith recites a sentence in our Duren opinion
that, he says, placed the burden of proving causation on
the State. See Tr. of Oral Arg. 33, 35. The sentence reads:
“Assuming, arguendo, that the exemptions mentioned by
the court below [those for persons over 65, teachers, and
government workers] would justify failure to achieve a fair
community cross section on jury venires, the State must
demonstrate that these exemptions [rather than the
women’s exemption] caused the underrepresentation
complained of.” 439 U. S., at 368–369. That sentence
appears after the Court had already assigned to Duren—
and found he had carried—the burden of proving that the
underrepresentation “was due to [women’s] systematic
exclusion in the jury-selection process.” Id., at 366. The
Court’s comment, which Smith clipped from its context,
does not concern the demonstration of a prima face case.
Instead, it addresses what the State might show to rebut
the defendant’s prima facie case. The Michigan Supreme
Court was therefore far from “unreasonable,” §2254(d)(1),
in concluding that Duren first and foremost required
Smith himself to show that the underrepresentation com
plained of was “due to systematic exclusion.” Id., at 364;
see Smith, 463 Mich., at 205, 615 N. W. 2d, at 3.
This Court, furthermore, has never “clearly established”
that jury-selection-process features of the kind on Smith’s
list can give rise to a fair-cross-section claim. In Taylor,
we “recognized broad discretion in the States” to “pre
scribe relevant qualifications for their jurors and to pro
vide reasonable exemptions.” 419 U. S., at 537–538. And
in Duren, the Court understood that hardship exemptions
16 BERGHUIS v. SMITH

Opinion of the Court

resembling those Smith assails might well “survive a fair
cross-section challenge,” 439 U. S., at 370.6 In sum, the
Michigan Supreme Court’s decision rejecting Smith’s fair
cross-section claim is consistent with Duren and “involved
[no] unreasonable application o[f] clearly established
Federal law,” §2254(d)(1).
* * *
For the reasons stated, the judgment of the Court of
Appeals for the Sixth Circuit is reversed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.

——————
6 We have also never “clearly” decided, and have no need to consider

here, whether the impact of social and economic factors can support a
fair-cross-section claim. Compare Smith, 463 Mich., at 206, 615 N. W.
2d, at 3 (“[T]he influence of social and economic factors on juror partici
pation does not demonstrate a systematic exclusion of [a distinctive
group].”), with 543 F. 3d 326, 341 (CA6 2008) (case below) (“[T]he Sixth
Amendment is concerned with social or economic factors when the
particular system of selecting jurors makes such factors relevant to who
is placed on the qualifying list and who is ultimately called to or ex
cused from service on a venire panel.”).
 Cite as: 559 U. S. ____ (2010) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–1402
_________________

MARY BERGHUIS, WARDEN, PETITIONER v.

DIAPOLIS SMITH

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[March 30, 2010]

JUSTICE THOMAS, concurring.
The text of the Sixth Amendment guarantees the right
to a trial by “an impartial jury.” Historically, juries did
not include a sampling of persons from all levels of society
or even from both sexes. See, e.g., Alschuler & Deiss, A
Brief History of the Criminal Jury in the United States, 61
U. Chi. L. Rev. 867, 877 (1994) (In 1791, “[e]very state
limited jury service to men; every state except Vermont
restricted jury service to property owners or taxpayers;
three states permitted only whites to serve; and one state,
Maryland, disqualified atheists”); Taylor v. Louisiana, 419
U. S. 522, 533, n. 13 (1975) (“In this country women were
disqualified by state law to sit as jurors until the end of
the 19th century”). The Court has nonetheless concluded
that the Sixth Amendment guarantees a defendant the
right to a jury that represents “a fair cross section” of the
community. Ante, at 1 (citing Taylor, supra).
In my view, that conclusion rests less on the Sixth
Amendment than on an “amalgamation of the Due Process
Clause and the Equal Protection Clause of the Fourteenth
Amendment,” Duren v. Missouri, 439 U. S. 357, 372 (1979)
(Rehnquist, J., dissenting), and seems difficult to square
with the Sixth Amendment’s text and history. Accord
ingly, in an appropriate case I would be willing to recon
sider our precedents articulating the “fair cross section”
2 BERGHUIS v. SMITH

THOMAS, J., concurring

requirement. But neither party asks us to do so here, and
the only question before us is whether the state court’s
disposition was contrary to, or an unreasonable applica
tion of, our precedents. See ante, at 2−3, 8−10; 28 U. S. C.
§2254(d). I concur in the Court’s answer to that question.