"We have exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death."

Justice Clarence Thomas, who has often condoned unfairness to defendants, has it right this time. His was the most telling point in the fiveopinions generated by the Supreme Court’s unfortunate June 18 decision to bar criminal defendants and their lawyers from talcing account of race in jury selection.

The majority’s bizarre holding in Georgia v. McCollum was that defense lawyers violate prospective jurors’ equal-protection rights-and do so on behalf of the state-when they use their peremptory challenges to strike people they suspect might be less sympathetic to the defendant because of their race.

This does violence both to the fairness of the criminal-justice process and to the integrity of the state-action doctrine. It also, paradoxically, vindicates the symbolic appearance of racial inclusion at the expense of the concrete interest of black defendants in choosing black jurors.

McCollum has been welcomed by some as a logical and benign corollary of the Court’s 1986 decision in Batson v. Kentucky to bar prosecutors from using peremptories to remove blacks from juries.

But the reality is that Justice Harry Blackmun’s majority opinion is a classic example of good intentions gone wrong and step-by-step extensions of legal doctrine gone too far.

The notion of curbing race-based peremptories by defendants may seem momentarily attractive to liberals in the wake of the acquittal of four white Los Angeles cops, who beat black motorist Rodney King, by a Simi Valley jury that included no blacks.

But McCollum’s main effect will not be to enhance the racial diversity of juries. It will be to preclude black defendants from removing whites in hopes of making room for blacks. Often it will leave them facing all-white juries.

That’s why Justice Thomas, who concurred in the result because he felt bound by precedent, asserted that "black criminal defendants will rue the day that this Court ventured down this road."

So single-mindedly has the Court pursued its ideal of purging racial stereotyping from the jury selection process that by the time of McCollum, Batson’s core goal of ensuring defendants a fair trial had vanished from the calculus.

Batson was a great anywise decision, resting on a solid constitutional foundation: Prosecutors’ use of peremptory challenges is clearly state action, and systematic elimination of black jurors violates the rights of black defendants.

But Batson should be understood not as mandating some ideal of colorblind jury selection, but as a necessary remedy for black defendants victimized by a sad history of racial oppression: One of the most notorious sources of unfairness in our criminal-justice system was the trial of black (and other minority) defendants by all-white juries, from which members of the defendant’s race had been systematically purged.

Such juries were common in most jurisdictions, where black jury-pool members were a minority, easily removed from each jury by peremptory challenge. Defense lawyers could not balance the scales, because any whites they struck would likely be replaced by other whites.

While this formula for picking all-white juries stigmatized black jurors as unfit to serve, Batson turned on the-violation of black defendants’ rights. They had-and have-every reason to believe themselves less likely to get fair trials from all-white or mostly white juries than from racially mixed juries.

Common sense and empirical studies alike show that jurors are most likely to sympathize with defendants of the same race. This does not necessarily reflect racism or disqualifying partiality; it is human nature.

The one flaw in Batson’s reasoning was that it blinked this reality by seeming to pretend that there was no reason for anyone to suppose that jurors’ sympathies might correlate with race.

This helps explain the Court’s wrong turns since Batson. First came Powers v. Ohio in April 1991, which held that a white defendant had standing to challenge a prosecutor’s race-based removal of black jurors as a violation of the equal-protection rights not of the defendant, but of the jurors.

Powers began the slide toward using the supposed rights of jurors as a pretext to vindicate at all costs the symbolic interest of the courts in the appearance of non-discriminatory jury selection.

Next came the June 1991 ruling in Edmonson v. Leesville Concrete Co. that race-based use of peremptories in civil cases violates jurors’ equal-protection rights. Not only was there no great injustice to be corrected on the civil front; to reach its result, the Court perverted the state-action doctrine by holding that private lawyers using peremptories in civil cases act for the state.

In McCollum, as Justice Antonin Scalia said in dissent, this logic reaches "the terminally absurd: A criminal defendant, in the process of defending himself against the state, is held to be acting on behalf of the state." And the state is held to have standing to challenge the defendant’s "state action."

The majority opinion in McCollum stresses that public confidence in the courts is "undermined where a defendant, assisted by racially discriminatory peremptory strikes, obtains an acquittal."

True. But while public confidence is important, the primary goal of ensuring every defendant a fair trial argues for preserving the deeply rooted tradition of untrammeled defense peremptories. As Justice Thomas explained, peremptories often play an essential role in "securing representation of the defendant’s race on the jury," and thus "may help to overcome racial bias and provide the defendant with a better chance of having a fair trial."

Of course, defendants will not always use their peremptories to produce a healthy racial mix.

In the McCollum case, for example, three white defendants charged with assaulting a black couple could have used their peremptories to remove all blacks from their jury in a 43-percent, black county. White cops charged with abusing black citizens have done the same in cases that include two highly publicized Miami trials ending in acquittals-and riots.

Similarly, in a majority-black city like Washington, black defendants might use their peremptories to strike all whites from the jury.

But the paradigmatic cases in which McCollum will make a difference are those involving black defendants in majority-white jurisdictions.

Nor will the fair-trial rights of white defendants be unaffected by McCollum: In a majority-black jurisdiction like Washington, a defendant like former Defense Secretary Caspar Weinberger, or a white cop charged with abusing black citizens, may want to use his peremptories to get some whites on the jury.

The hard reality is that as long as America remains balkanized along racial lines, there is no perfect way to handle the racial factor in jury selection. The practical effect and racial fallout of curbing defendants’ use of peremptories will vary from case to case and place to place.

But there will be one constant after McCollum: Defendants will have a harder time getting juries they consider fair. That is a move in the wrong direction if we believe, as we should, that it is better that 10 guilty people should go free than that one innocent person should be convicted.

Peremptories aside, Justice Thomas’ opinion, and Justice Sandra Day O’Connor’s assertion in dissent that "there is substantial reason to believe that the distorting influence of race is minimized on a racially mixed jury," raises another question:

Why not require that every jury reflect the racial mix of the general population, or at least include one or more members of the defendant’s race?

The answer is that this would plunge the jury system into endless, divisive disputes not only over race and subtler gradations of ethnicity, but also over gender, religion, age, disability, sexual preference, and political affiliation.

While we should face the reality that such group identifications still infect the jury process, it would only make things worse to move toward a quota regime. Ultimately, requiring multicultural juries would be a formula for hung juries-even for the demise of the jury system.

The politically driven urge to social-engineer juries to make largely symbolic points is already apparent in recent calls for a ban on the (relatively rare) use of gender-based peremptory challenges.

A student note in the Harvard Law Review’s June issue argues for such a ban to end "the dignitary harm and stigmatization" of female jurors so excluded-a harm the existence of which had apparently been unknown even to the jurors for whom the author’s heart bleeds.

Like the Court’s opinion in McCollum, the Harvard note is virtually devoid of reference to the fair-trial rights of the criminal defendants whose liberties are at stake. Obsessive pursuit of symbolic abstractions makes bad law.