In the 1985 case Batson v. Kentucky, James Kirkland Batson was convicted of burglary and receipt of stolen goods by an all-white jury after his defense attorney's objections to the prosecution's removal of all four potential African American jurors were overruled. The U.S Supreme Court ruled in favor of Batson, stating that a prosecutor’s dismissal of potential jurors based on their race violated the Equal Protection Clause under the Fourteenth Amendment. This landmark decision established what is known as "Batson Challenge", where a party can object to peremptory challenges (the right in jury selection for attorneys to reject a certain number of potential jurors without stating a reason) if they believe these are being used to discriminate based on race or sex.

In the dissenting opinion for Batson v. Kentucky, Justice Thurgood Marshall agreed with the majority that racial discrimination in jury selection is unconstitutional but argued that it was not enough to merely establish new standards for proving such discrimination. He believed that peremptory challenges should be eliminated altogether because they allow potential jurors to be dismissed without reason and thus provide a cover for racial bias. Furthermore, he expressed skepticism about whether courts would effectively enforce the new rules set by this case due to historical failures of similar attempts at reform. Ultimately, he contended that only complete abolition of peremptory challenges could ensure equal protection under law and maintain public confidence in the justice system.