Sandra Day O'Connor

“ The government "normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." ”

“ A judge does not "significantly encourage" discrimination by the mere act of excusing a juror in response to an unexplained request.
There is another important distinction between Shelley and this case. The state courts in Shelley used coercive force to impose conformance on parties who did not wish to discriminate. "Enforcement" of peremptory challenges, on the other hand, does not compel anyone to discriminate; the discrimination is wholly a matter of private choice. ”

“ It cannot be gainsaid that a peremptory strike is a traditional adversarial act; parties use these strikes to further their own perceived interests, not as an aid to the government's process of jury selection. The Court does not challenge the rule of Dodson, yet concludes that private attorneys performing this adversarial function are state actors. ”

“ Notice was not only encouraged by the State, but positively required. There is no comparable state involvement here. No one is compelled by government action to use a peremptory challenge, let alone to use it in a racially discriminatory way. ”

“ The bulk of the practices the Court describes-the establishment of qualifications for jury service, the location and summoning of perspective jurors, the jury wheel, the voter lists, the jury qualification forms, the per diem for jury service-are independent of the statutory entitlement to peremptory strikes, or of their use. ”

“ This is because a lawyer, when representing a private client, cannot at the same time represent the government.
Trials in this country are adversarial proceedings. Attorneys for private litigants do not act on behalf of the government, or even the public as a whole; attorneys represent their clients. ”

“ Beyond this, the Court has misstated the law. The Court cites Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) , and Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) , for the proposition that state action may be imputed to one who carries out a "traditional governmental function." Ante, at 621. In those cases, the Court held that private control over certain core government activities rendered the private action attributable to the State. In Terry, the activity was a private primary election that effectively determined the outcome of county general elections. ”

“ It is not aimed at disqualification, but is exercised upon qualified jurors as matter of favor to the challenger." C. Lincoln, Abbott's Civil Jury Trials 92 (3d ed. 1912) , quoting O'Neil v. Lake Superior Iron Co., 67 Mich. ”

“ See Swain, supra, at 212-218, 85 S.Ct., at 831-835 (tracing history) ; Holland, 493 U.S., at 481, 110 S.Ct., at ---- (same) . Congress imported this tradition into federal civil trials in 1872. See ch. ”