In the 1964 case Swain v. Alabama, Robert Swain, a black man convicted of rape by an all-white jury in Talladega County, Alabama appealed his conviction to the U.S. Supreme Court on grounds that African Americans were systematically excluded from juries in criminal cases involving black defendants. The court ruled against him with a 6-2 decision stating that while systematic exclusion of racial groups from jury service would be unconstitutional, proving such discrimination required evidence beyond just statistical disparities between racial composition of potential and actual jurors. It was not enough for Swain to show that no black person had served on a petit (trial) jury for decades; he needed to demonstrate deliberate and systemic exclusion based on race during selection process which he failed to do so according to majority opinion.

In the dissenting opinion for Swain v. Alabama, Justice Goldberg, joined by Chief Justice Warren and Justice Douglas, argued that the systematic exclusion of African Americans from jury service violated their constitutional rights to equal protection under the law. They contended that such a practice was not only discriminatory but also undermined public confidence in the administration of justice. The dissenters pointed out that while it may be difficult to prove racial discrimination in any individual case, patterns of exclusion over time provided compelling evidence of bias. They disagreed with the majority's view that defendants had no right to a proportionate number of their race on juries; instead they asserted every defendant has a right to have charges against them considered by a jury selected without regard to race or color. Furthermore, they believed this case presented an opportunity for judicial action against racial discrimination in jury selection which should not be missed.