Should analysis of a prima facie case of discrimination under Batson prohibit reliance upon hypothetical justifications never advanced by the prosecutor?

QUESTIONS PRESENTED This Court has repeatedly held that the burden-shifting framework applicable to claims of discrimination in jury selection under Batson v. Kentucky, 476 U.S. 79 (1986) derives from and is defined as the framework set forth in this Court’s Title VII cases. Johnson v. California, 545 U.S. 162, 171 n.7 (2005) (prima facie case “comports with our interpretation of the burden-shifting framework in cases arising under Title VII’); Batson, 476 U.S. at 94 (“prima facie burden of proof rules” explained by “[o]ur decisions concerning ‘disparate treatment’ under Title VII”). Under Title VII cases, federal courts have universally determined that consideration of an employer’s reasons for adverse action is not permitted at the prima facie stage. The persuasiveness and credibility of the reasons for adverse action are examined only at the third stage. See, e.g., MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1119 (10th Cir. 1991) (“the common thread running through all [circuit court] decisions is the courts’ refusal to consider a defendant’s proffered reasons for discharge in assessing the existence of a prima facie case”). Simlar rules flatly prohibit considering any reasons not proferred by the employer. See, e.g., E.E.O.C. v. West Bros. Dept. Store of Mansfield, La., Inc., 805 F.2d 1171, 1172 (5th Cir. 1986). The Third, Ninth and Tenth Circuits apply a rule consistent with this approach in the Batson context: refusing to hypothesize reasons not urged by a prosecutor in determining the existence of a prima facie case. Bronshtein v. Horn, 404 F.3d 700, 723 (3d Cir. 2005); Johnson v. Finn, 665 F.3d 1063, 1069 (9th Cir. 2011); Johnson v. Martin, 3 F.4th 1210, 1224 (10th Cir. 2021). In conflict with these circuits, the California high court has adopted a rule whereby courts are permitted to speculate regarding the existence of potential justifications (never articulated by the prosecutor) to defeat the prima facie case. Under the California approach, adopted also by the First and Seventh Circuits, see U.S. v. Stephens, 421 F.3d 503, 515 (7th Cir. 2005), Sanchez v. Roden, 753 F.3d 279, 302 (1st Cir. 2014) the California Supreme Court has denied every Batson claim analyzed at the prima facie stage. This case thus poses the following question: 1. Should analysis of a prima facie case of discrimination under Batson prohibit reliance upon hypothetical justifications never advanced by the prosecutor? il STATEMENT OF