In Whitus et al. v. Georgia (1966), the U.S Supreme Court ruled that a jury selection process which resulted in racial discrimination was unconstitutional, violating the Equal Protection Clause of the Fourteenth Amendment. The case involved an African American man, Robert Whitus, who had been convicted by an all-white jury for murder in Taylor County, Georgia. Despite making up approximately 45% of taxpaying residents eligible to serve on juries in this county at that time, no black person had served on a grand or petit jury there for over 15 years prior to his trial due to discriminatory practices such as separate lists and boxes for white and black potential jurors. The court unanimously held that these procedures were not racially neutral and reversed Whitus's conviction.

In the dissenting opinion for Whitus et al. v. Georgia, Justice Harlan argued that there was no constitutional violation in this case because the jury selection process did not intentionally discriminate against African Americans. He believed that it was insufficient to prove discrimination based solely on statistical disparities between racial groups within a community and their representation on juries. Instead, he asserted that intentional exclusion or discriminatory intent must be proven to establish a violation of equal protection under the Fourteenth Amendment. Furthermore, he contended that if unintentional effects of neutral state laws could constitute unconstitutional discrimination, then many other aspects of society would also have to be considered discriminatory due to similar disparities in outcomes among different racial groups.