author: Justice Kennedy Justice O’Connor, Justice Blackmun, Justice Stevens,

text:
    HERNANDEZ v. NEW YORK
    No. 89-7645.
    Argued February 25, 1991
    Decided May 28, 1991

      Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and White and Souter, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment, in which Scalia, J., joined, post, p. 372. Blackmun, J., filed a dissenting opinion, post, p. 375. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 375.

      Kenneth Kimerling argued the cause for petitioner. With him on the briefs were Ruben Franco and Arthur Baer.

      Jay M. Cohen argued the cause for respondent. With him on the brief were Charles J. Hynes, Peter A. Weinstein, Carol Teague Schwartzkopf, and Victor Bar all.

        E. Richard Larson, Antonia Hernandez, and Juan Cartagena filed a brief for the Mexican American Legal Defense and Educational Fund et al. as amici curiae urging reversal.

   Justice Kennedy

announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White and Justice Souter join.

Petitioner Dionisio Hernandez asks us to review the New York state courts’ rejection of his claim that the prosecutor in his criminal trial exercised peremptory challenges to exclude Latinos from the jury by reason of their ethnicity. If true, the prosecutor’s discriminatory use of peremptory strikes would violate the Equal Protection Clause as interpreted by our decision in Batson v. Kentucky, 476 U. S. 79 (1986). We must determine whether the prosecutor offered a race-neutral basis for challenging Latino potential jurors and, if so, whether the state courts’ decision to accept the prosecutor’s explanation should be sustained.

Petitioner and respondent both, use the term “Latino” in their briefs to this Court. The amicus brief employs instead the term “Hispanic,” and the parties referred to the excluded jurors by that term in the trial court. Both words appear in the state-court opinions. No attempt has been made at a distinction by the parties and we make no attempt to distinguish the terms in this opinion. We will refer to the excluded venirepersons as Latinos in deference to the terminology preferred by the parties before the Court.

h — I

The case comes to us on direct review of petitioner’s convictions on two counts of attempted murder and two counts of criminal possession of a weapon. On a Brooklyn street, petitioner fired several shots at Charlene Calloway and her mother, Ada Saline. Calloway suffered three gunshot wounds. Petitioner missed Saline and instead hit two men in a nearby restaurant. The victims survived the incident.

The trial was held in the New York Supreme Court, Kings County. We concern ourselves here only with the jury selection process and the proper application of Batson, which had been handed down before the trial took place. After 63 potential jurors had been questioned and 9 had been empaneled, defense counsel objected that the prosecutor had used four peremptory challenges to exclude Latino potential jurors. Two of the Latino venirepersons challenged by the prosecutor had brothers who had been convicted of crimes, and the brother of one of those potential jurors was being prosecuted by the same District Attorney’s office for a probation violation. Petitioner does not press his Batson claim with respect to those prospective jurors, and we concentrate on the other two excluded individuals.

After petitioner raised his Batson objection, the prosecutor did not wait for a ruling on whether petitioner had established a prima facie case of racial discrimination. Instead, the prosecutor volunteered his reasons for striking the jurors in question. He explained:

“Your honor, my reason for rejecting the — these two jurors — I’m not certain as to whether they’re Hispanics. I didn’t notice how many Hispanics had been called to the panel, but my reason for rejecting these two is I feel very uncertain that they would be able to listen and follow the interpreter.” App. 3.

After an interruption by defense counsel, the prosecutor continued:

“We talked to them for a long time; the Court talked to them, I talked to them. I believe that in their heart they will try to follow it, but I felt there was a great deal of uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, especially where there were going to be Spanish-speaking witnesses, and I didn’t feel, when I asked them whether or not they could accept the interpreter’s translation of it, I didn’t feel that they could. They each looked away from me and said with some hesitancy that they would try, not that they could, but that they would try to follow the interpreter, and I feel that in a case where the interpreter will be for the main witnesses, they would have an undue impact upon the jury.” Id., at 3-4.

Defense counsel moved for a mistrial “based on the conduct of the District Attorney,” and the prosecutor requested a chance to call a supervisor to the courtroom before the judge’s ruling.

Following a recess, defense counsel renewed his motion, which the trial court denied. Discussion of the objection continued, however, and the prosecutor explained that he would have no motive to exclude Latinos from the jury:

“[TJhis case, involves four complainants. Each of the complainants is Hispanic. All my witnesses, that is, civilian witnesses, are going to be Hispanic. I have absolutely no reason — there’s no reason for me to want to exclude Hispanics because all the parties involved are Hispanic, and I certainly would have no reason to do that.” Id., at 5-6.

After further interchange among the judge and attorneys, the trial court again rejected petitioner’s claim. Id., at 12.

On appeal, the New York Supreme Court, Appellate Division, noted that though the ethnicity of one challenged bilingual juror remained uncertain, the prosecutor had challenged the only three prospective jurors with definite Hispanic surnames. 140 App. Div. 2d 543, 528 N. Y. S. 2d 625 (1986). The court ruled that this fact made out a prima facie showing of discrimination. The court affirmed the trial court’s rejection of petitioner’s Batson claim, however, on the ground that the prosecutor had offered race-neutral explanations for the peremptory strikes sufficient to rebut petitioner’s prima facie case.

The New York Court of Appeals also affirmed the judgment, holding that the prosecutor had offered a legitimate basis for challenging the individuals in question and deferring to the factual findings of the lower New York courts. 75 N. Y. 2d 350, 552 N. E. 2d 621 (1990). Two judges dissented, concluding that on this record, analyzed in the light of standards they would adopt as a matter of state constitutional law, the prosecutor’s exclusion of the bilingual potential jurors should not have been permitted. We granted cer-tiorari, 498 U. S. 894 (1990), and now affirm.

h-< i — j

In Batson, we outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. 476 U. S., at 96-98. The analysis set forth in Batson permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id., at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id., at 97-98. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id., at 98. This three-step inquiry delimits our consideration of the arguments raised by petitioner.

A

The prosecutor defended his use of peremptory strikes without any prompting or inquiry from the trial court. As a result, the trial court had no occasion to rule that petitioner had or had not made a prima facie showing of intentional discrimination. This departure from the normal course of proceeding need not concern us. We explained in the context of employment discrimination litigation under Title VII of the Civil Rights Act of 1964 that “[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 715 (1983). The same principle applies under Batson. Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.

B

Petitioner contends that the reasons given by the prosecutor for challenging the two bilingual jurors were not race neutral. In evaluating the race neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law. A court addressing this issue must keep in mind the fundamental principle that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact. . . . Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 264-265 (1977); see also Washington v. Davis, 426 U. S. 229, 239 (1976). “ ‘Discriminatory purpose’. . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected ... a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979) (footnote and citation omitted); see also McCleskey v. Kemp, 481 U. S. 279, 297-299 (1987).

A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.

Petitioner argues that Spanish-language ability bears a close relation to ethnicity, and that, as a consequence, it violates the Equal Protection Clause to exercise a peremptory challenge on the ground that a Latino potential juror speaks Spanish. He points to the high correlation between Spanish-language ability and ethnicity in New York, where the case was tried. We need not address that argument here, for the prosecutor did not rely on language ability without more, but explained that the specific responses and the demeanor of the two individuals during voir dire caused him to doubt their ability to defer to the official translation of Spanish-language testimony.

The prosecutor here offered a race-neutral basis for these peremptory strikes. As explained by the prosecutor, the challenges rested neither on the intention to exclude Latino or bilingual jurors, nor on stereotypical assumptions about Latinos or bilinguals. The prosecutor’s articulated basis for these challenges divided potential jurors into two classes: those whose conduct during voir dire would persuade him they might have difficulty in accepting the translator’s rendition of Spanish-language testimony and those potential jurors who gave no such reason for doubt. Each category would include both Latinos and non-Latinos. While the prosecutor’s criterion might well result in the disproportionate removal of prospective Latino jurors, that disproportionate impact does not turn the prosecutor’s actions into a per se violation of the Equal Protection Clause.

Petitioner contends that despite the prosecutor’s focus on the individual responses of these jurors, his reason for the peremptory strikes has the effect of a pure, language-based reason because “[a]ny honest bilingual juror would have answered the prosecutor in the exact same way.” Brief for Petitioner 14. Petitioner asserts that a bilingual juror would hesitate in answering questions like those asked by the judge and prosecutor due to the difficulty of ignoring the actual Spanish-language testimony. In his view, no more can be expected than a commitment by a prospective juror to try to follow the interpreter’s translation.

But even if we knew that a high percentage of bilingual jurors would hesitate in answering questions like these and, as a consequence, would be excluded under the prosecutor’s criterion, that fact alone would not cause the criterion to fail the race-neutrality test. As will be discussed below, disparate impact should be given appropriate weight in determining whether the prosecutor acted with a forbidden intent, but it will not be conclusive in the preliminary race-neutrality step of the Batson inquiry. An argument relating to the impact of a classification does not alone show its purpose. See Personnel Administrator of Mass. v. Feeney, supra, at 279. Equal protection analysis turns on the intended consequences of government classifications. Unless the government actor adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principle of race neutrality. Nothing in the prosecutor’s explanation shows that he chose to exclude jurors who hesitated in answering questions about following the interpreter because he wanted to prevent bilingual Latinos from serving on the jury.

If we deemed the prosecutor’s reason for striking these jurors a racial classification on its face, it would follow that a trial judge could not excuse for cause a juror whose hesitation convinced the judge of the juror’s inability to accept the official translation of foreign-language testimony. If the explanation is not race neutral for the prosecutor, it is no more so for the trial judge. While the reason offered by the prosecutor for a peremptory strike need not rise to the level of a challenge for cause, Batson, 476 U. S., at 97, the fact that it corresponds to a valid for-cause challenge will demonstrate its race-neutral character.

C

Once the prosecutor offers a race-neutral basis for his exercise of peremptory challenges, “[t]he trial court then [has] the duty to determine if the defendant has established purposeful discrimination.” Id., at 98. While the disproportionate impact on Latinos resulting from the prosecutor’s criterion for excluding these jurors does not answer the race-neutrality inquiry, it does have relevance to the trial court’s decision on this question. “[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [classification] bears more heavily on one race than another.” Washington v. Davis, 426 U. S., at 242. If a prosecutor articulates a basis for a peremptory challenge that results in the disproportionate exclusion of members of a certain race, the trial judge may consider that fact as evidence that the prosecutor’s stated reason constitutes a pretext for racial discrimination.

In the context of this trial, the prosecutor’s frank admission that his ground for excusing these jurors related to their ability to speak and understand Spanish raised a plausible, though not a necessary, inference that language might be a pretext for what in fact were race-based peremptory challenges. This was not a case where by some rare coincidence a juror happened to speak the same language as a key witness, in a community where few others spoke that tongue. If it were, the explanation that the juror could have undue influence on jury deliberations might be accepted without concern that a racial generalization had come into play. But this trial took place in a community with a substantial Latino population, and petitioner and other interested parties were members of that ethnic group. It would be common knowledge in the locality that a significant percentage of the Latino population speaks fluent Spanish, and that many consider it their preferred language, the one chosen for personal commu-' nication, the one selected for speaking with the most precision and power, the one used to define the self.

The trial judge can consider these and other factors when deciding whether a prosecutor intended to discriminate. For example, though petitioner did not suggest the alternative to the trial court here, Spanish-speaking jurors could be permitted to advise the judge in a discreet way of any concerns with the translation during the course of trial. A prosecutor’s persistence in the desire to exclude Spanish-speaking jurors despite this measure could be taken into account in determining whether to accept a race-neutral explanation for the challenge.

The trial judge in this case chose to believe the prosecutor’s race-neutral explanation for striking the two jurors in question, rejecting petitioner’s assertion that the reasons were pretextual. In Batson, we explained that the trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal:

“In a recent Title VII sex discrimination case, we stated that ‘a finding of intentional discrimination is a finding of fact’ entitled to appropriate deference by a reviewing court. Anderson v. Bessemer City, 470 U. S. 564, 573 (1985). Since the trial judge’s findings in the context under consideration here largely turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Id., at 575-576.” Batson, supra, at 98, n. 21.

Batson’s treatment of intent to discriminate as a pure issue of fact, subject to review under a deferential standard, accords with our treatment of that issue in other equal protection cases. See Hunter v. Underwood, 471 U. S. 222, 229 (1985) (Court of Appeals correctly found that District Court committed clear error in concluding state constitutional provision was not adopted out of racial animus); Rogers v. Lodge, 458 U. S. 613, 622-623 (1982) (clearly-erroneous standard applies to review of finding that at-large voting system was maintained for discriminatory purposes); Dayton Bd. of Ed. v. Brinkman, 443 U. S. 526, 534 (1979) (affirming Court of Appeals’ conclusion that District Court’s failure to find the intentional operation of a dual school system was clearly erroneous); Akins v. Texas, 325 U. S. 398, 401-402 (1945) (great respect accorded to findings of state court in discriminatory jury selection case); see also Miller v. Fenton, 474 U. S. 104, 113 (1985). As Batson’s citation to Anderson suggests, it also corresponds with our treatment of the intent inquiry under Title VII. See Pullman-Standard v. Sivint, 456 U. S. 273, 293 (1982).

Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding “largely will turn on evaluation of credibility.” 476 U. S., at 98, n. 21. In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.” Wainwright v. Witt, 469 U. S. 412, 428 (1985), citing Patton v. Yount, 467 U. S. 1025, 1038 (1984).

The precise formula used for review of factfindings, of course, depends on the context. Anderson was a federal civil case, and we there explained that a federal appellate court reviews the finding of a district court on the question of intent to discriminate under Federal Rule of Civil Procedure 52(a), which permits factual findings to be set aside only if clearly erroneous. While no comparable rule exists for federal criminal cases, we have held that the same standard should apply to review of findings in criminal cases on issues other than guilt. Maine v. Taylor, 477 U. S. 131, 145 (1986); Campbell v. United States, 373 U. S. 487, 493 (1963). See also 2 C. Wright, Federal Practice and Procedure § 374 (2d ed. 1982 and Supp. 1990). On federal habeas review of a state conviction, 28 U. S. C. § 2254(d) requires the federal courts to accord state-court factual findings a presumption of correctness.

This case comes to us on direct review of the state-court judgment. No statute or rule governs our review of facts found by state courts in cases with this posture. The reasons justifying a deferential standard of review in other contexts, however, apply with equal force to our review of a state trial court’s findings of fact made in connection with a federal constitutional claim. Our cases have indicated that, in the absence of exceptional circumstances, we would defer to state-court factual findings, even when those findings relate to a constitutional issue. See 324 Liquor Corp. v. Duffy, 479 U. S. 335, 351 (1987); California Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 111-112 (1980); see also Time, Inc. v. Firestone, 424 U. S. 448, 463 (1976); General Motors Corp. v. Washington, 377 U. S. 436, 441-442 (1964) (quoting Norton Co. v. Department of Revenue of Ill., 340 U. S. 534, 537-538 (1951)); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 68 (1963); Lloyd A. Fry Roofing Co. v. Wood, 344 U. S. 157, 160 (1952). Moreover, “an issue does not lose its factual character merely because its .resolution is dispositive of the ultimate constitutional question.” Miller v. Fenton, supra, at 113 (citing Dayton Bd. of Ed. v. Brinkman, supra).

Petitioner advocates “independent” appellate review of a trial court’s rejection of a Batson claim. We have difficulty understanding the nature of the review petitioner would have us conduct. Petitioner explains that “[ijndependent review requires the appellate court to accept the findings of historical fact and credibility of the lower court unless they are clearly erroneous. Then, based on these facts, the appellate court independently determines whether there has been discrimination.” Reply Brief for Petitioner 17. But if an appellate court accepts a trial court’s finding that a prosecutor’s race-neutral explanation for his peremptory challenges should be believed, we fail to see how the appellate court nevertheless could find discrimination. The credibility of the prosecutor’s explanation goes to the heart of the equal protection analysis, and once that has been settled, there seems nothing left to review.

Petitioner seeks support for his argument in Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 (1984), and Miller v. Fenton, supra. Bose Corp. dealt with review of a trial court’s finding of “actual malice,” a First Amendment precondition to liability in a defamation case, holding that an appellate court “must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity.” 466 U. S., at 514. Miller accorded similar treatment to a finding that a confession was voluntary. 474 U. S., at 110. Those cases have no relevance to the matter before us. They turn on the Court’s determination that findings of voluntariness or actual malice involve legal, as well as factual, elements. See Miller, supra, at 115-117; Bose Corp., supra, at 501-502; see also Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657, 685 (1989) (“The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law”). Whether a prosecutor intended to discriminate on the basis of race in challenging potential jurors is, as Batson recognized, a question of historical fact.

Petitioner also looks to a line of this Court’s decisions reviewing state-court challenges to jury selection procedures. Many of these cases, following Norris v. Alabama, 294 U. S. 587 (1935), have emphasized this Court’s duty to “analyze the facts in order that the appropriate enforcement of the federal right may be assured,” id., at 590, or to “make independent inquiry and determination of the disputed facts,” Pierre v. Louisiana, 306 U. S. 354, 358 (1939). See, e. g., Whitus v. Georgia, 385 U. S. 545, 550 (1967); Avery v. Georgia, 345 U. S. 559, 561 (1953); Patton v. Mississippi, 332 U. S. 463, 466 (1947); Smith v. Texas, 311 U. S. 128, 130 (1940). The review provided for in those cases, however, leaves room for deference to state-court factual determinations, in particular on issues of credibility. For instance, in Akins v. Texas, 325 U. S. 398 (1945), we said:

“[T]he transcript of the evidence presents certain inconsistencies and conflicts of testimony in regard to limiting the number of Negroes on the grand jury. Therefore, the trier of fact who heard the witnesses in full and observed their demeanor on the stand has a better opportunity than a reviewing court to reach a correct conclusion as to the existence of that type of discrimination. While our duty, in reviewing a conviction upon a complaint that the procedure through which it was obtained violates due process and equal protection under the Fourteenth Amendment, calls for our examination of evidence to determine for ourselves whether a federal constitutional right has been denied, expressly or in substance and effect, Norris v. Alabama, 294 U. S. 587, 589-90; Smith v. Texas, 311 U. S. 128, 130, we accord in that examination great respect to the conclusions of the state judiciary, Pierre v. Louisiana, 306 U. S. 354, 358. That respect leads us to accept the conclusion of the trier on disputed issues ‘unless it is so lacking in support in the evidence that to give it effect would work that fundamental unfairness which is at war with due process,’ Lisenba v. California, 314 U. S. 219, 238, or equal protection. Cf. Ashcraft v. Tennessee, 322 U. S. 143, 152, 153; Malinski v. New York, 324 U. S. 401, 404.” Id., at 401-402.

Other cases in the Norris line also express our respect for factual findings made by state courts. See Whitus, supra, at 550; Pierre, supra, at 358.

In the case before us, we decline to overturn the state trial court’s finding on the issue of discriminatory intent unless convinced that its determination was clearly erroneous. It “would pervert the concept of federalism,” Bose Corp., supra, at 499, to conduct a more searching review of findings made in state trial court than we conduct with respect to federal district court findings. As a general matter, we think the Norris line of cases reconcilable with this clear error standard of review. In those cases, the evidence was such that a “reviewing court on the entire evidence [would be] left with the definite and firm conviction that a mistake ha[d] been committed.” United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948). For instance, in Norris itself, uncontradicted testimony showed that “no negro had served on any grand or petit jury in [Jackson County, Alabama,] within the memory of witnesses who had lived there all their lives.” 294 U. S., at 591; see also Avery v. Georgia, supra, at 560-561; Patton v. Mississippi, supra, at 466; Smith v. Texas, supra, at 131. In circumstances such as those, a finding of no discrimination was simply too incredible to be accepted by this Court.

We discern no clear error in the state trial court’s determination that the prosecutor did not discriminate on the basis of the ethnicity of Latino jurors. We have said that “[w]here there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U. S. 564, 574 (1985). The trial court took a permissible view of the evidence in crediting the prosecutor’s explanation. Apart from the prosecutor’s demeanor, which of course we have no opportunity to review, the court could have relied on the facts that the prosecutor defended his use of peremptory challenges without being asked to do so by the judge, that he did not know which jurors were Latinos, and that the ethnicity of the victims and prosecution witnesses tended to undercut any motive to exclude Latinos from the jury. Any of these factors could be taken as evidence of the prosecutor’s sincerity. The trial court, moreover, could rely on the fact that only three challenged jurors can with confidence be identified as Latinos, and that the prosecutor had a verifiable and legitimate explanation for two of those challenges. Given these factors, that the prosecutor also excluded one or two Latino venire-persons on the basis of a subjective criterion having a disproportionate impact on Latinos does not leave us with a “definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., supra, at 395.

D

Language permits an individual to express both a personal identity and membership in a community, and those who share a common language may interact in ways more intimate than those without this bond. Bilinguals, in a sense, inhabit two communities, and serve to bring them closer. Indeed, some scholarly comment suggests that people proficient in two languages may not at times think in one language to the exclusion of the other. The analogy is that of a high-hurdler, who combines the ability to sprint and to jump to accomplish a third feat with characteristics of its own, rather than two separate functions. Grosjean, The Bilingual as a Competent but Specific Speaker-Hearer, 6 J. Multilingual & Multicultural Development 467 (1985). This is not to say that the cognitive processes and reactions of those who speak two languages are susceptible of easy generalization, for even the term “bilingual” does not describe a uniform category. It is a simple word for a more complex phenomenon with many distinct categories and subdivisions. Sánchez, Our Linguistic and Social Context, in Spanish in the United States 9, 12 (J. Amastae & L. Elias-Olivares eds. 1982); Dodson, Second Language Acquisition and Bilingual Development: A Theoretical Framework, 6 J. Multilingual & Multicultural Development 325, 326-327 (1985).

Our decision today does not imply that exclusion of bilinguals from jury service is wise, or even that it is constitutional in all cases. It is a harsh paradox that one may become proficient enough in English to participate in trial, see, e. g., 28 U. S. C. §§ 1865(b)(2), (3) (English-language ability required for federal jury service), only to encounter disqualification because he knows a second language as well. As the Court observed in a somewhat related context: “Mere knowledge of [a foreign] language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable.” Meyer v. Nebraska, 262 U. S. 390, 400 (1923).

Just as shared language can serve to foster community, language differences can be a source of division. Language elicits a response from others, ranging from admiration and respect, to distance and alienation, to ridicule and scorn. Reactions of the latter type all too often result from or initiate racial hostility. In holding that a race-neutral reason for a peremptory challenge means a reason other than race, we do not resolve the more difficult question of the breadth with which the concept of race should be defined for equal protection purposes. We would face a quite different case if the prosecutor had justified his peremptory challenges with the explanation that he did not want Spanish-speaking jurors. It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis. Cf. Yu Cong Eng v. Trinidad, 271 U. S. 500 (1926) (law prohibiting keeping business records in other than specified languages violated equal protection rights of Chinese businessmen); Meyer v. Nebraska, supra (striking down law prohibiting grade schools from teaching languages other than English). And, as we make clear, a policy of striking all who speak a given language, without regard to the particular circumstances of the trial or the individual responses of the jurors, may be found by the trial judge to be a pretext for racial discrimination. But that case is not before us.

l — H HH H-i

We find no error in the application by the New York courts of the three-step Batson analysis. The standard inquiry into the objecting party’s prima facie case was unnecessary given the course of proceedings in the trial court. The state courts came to the proper conclusion that the prosecutor offered a race-neutral basis for his exercise of peremptory challenges. The trial court did not commit clear error in choosing to believe the reasons given by the prosecutor.

Affirmed.

Justice O’Connor,

with whom Justice Scalia joins, concurring in the judgment.

I agree with the plurality that we review for clear error the trial court’s finding as to discriminatory intent, and agree with its analysis of this issue. I agree also that the finding of no discriminatory intent was not clearly erroneous in this case. I write separately because I believe that the plurality opinion goes further than it needs to in assessing the constitutionality of the prosecutor’s asserted justification for his peremptory strikes.

Upon resolution of the factfinding questions, this case is straightforward. Hernandez asserts an equal protection violation under the rule of Batson v. Kentucky, 476 U. S. 79 (1986). In order to demonstrate such a violation, Hernandez must prove that the prosecutor intentionally discriminated against Hispanic jurors on the basis of their race. The trial court found that the prosecutor did not have such intent, and that determination is not clearly erroneous. Hernandez has failed to meet his burden.

An unwavering line of cases from this Court holds that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent; the disproportionate effects of state action are not sufficient to establish such a violation. In Washington v. Davis, 426 U. S. 229, 239 (1976), we explained that “our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” “[A] defendant who alleges an equal protection violation has the burden of proving ‘the existence of purposeful discrimination.’” McCleskey v. Kemp, 481 U. S. 279, 292 (1987). See also Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 264-265 (1977); Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 198 (1973); Wright v. Rockefeller, 376 U. S. 52, 56-57 (1964).

We have recognized the discriminatory intent requirement explicitly in the context of jury selection. Thus, “[a] purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination.” Akins v. Texas, 325 U. S. 398, 403-404 (1945). See also Alexander v. Louisiana, 405 U. S. 625, 628-629 (1972); Whitus v. Georgia, 385 U. S. 545, 549-550 (1967); Norris v. Alabama, 294 U. S. 587, 589 (1935); Neal v. Delaware, 103 U. S. 370, 394 (1881). The point was made clearly in Batson itself: “As in any equal protection case, the ‘burden is, of course,’ on the defendant who alleges discriminatory selection ... ‘to prove the existence of purposeful discrimination.’” 476 U. S., at 93, quoting Whitus, supra, at 550.

Consistent with our established equal protection jurisprudence, a peremptory strike will constitute a Batson violation only if the prosecutor struck a juror because of the juror’s race. “[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that [Hispanic] jurors as a group will be unable impartially to consider the State’s case.” Batson, supra, at 89 (emphasis added). See also Powers v. Ohio, 499 U. S. 400, 409 (1991) (“[T]he Equal Protection Clause prohibits a prosecutor from using the State’s peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race”). Batson’s requirement of a race-neutral explanation means an explanation other than race.

In Washington v. Davis, supra, we outlined the dangers of a rule that would allow an equal protection violation on a finding of mere disproportionate effect. Such a rule would give rise to an unending stream of constitutional challenges:

“A rule that [state action] designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.” Id., at 248.

In the same way, a rule that disproportionate effect might be sufficient for an equal protection violation in the use of peremptory strikes runs the serious risk of turning voir dire into a full-blown disparate impact trial, with statistical evidence and expert testimony on the discriminatory effect of any particular nonracial classification. In addition to creating unacceptable delays in the trial process, such a practice would be antithetical to the nature and purpose of the peremptory challenge. Absent intentional discrimination vio-lative of the Equal Protection Clause, parties should be free to exercise their peremptory strikes for any reason, or no reason at all. The peremptory challenge is, “as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.” Lewis v. United States, 146 U. S. 370, 378 (1892) (internal quotation marks omitted).

In this case, the prosecutor’s asserted justification for striking certain Hispanic jurors was his uncertainty about the jurors’ ability to accept the official translation of trial testimony. App. 3-4. If this truly was the purpose of the strikes, they were not strikes because of race, and therefore did not violate the Equal Protection Clause under Batson. They may have acted like strikes based on race, but they were not based on race. No matter how closely tied or significantly correlated to race the explanation for a peremptory strike may be, the strike does not implicate the Equal Protection Clause unless it is based on race. That is the distinction between disproportionate effect, which is not sufficient to constitute an equal protection violation, and intentional discrimination, which is.

Disproportionate effect may, of course, constitute evidence of intentional discrimination. The trial court may, because of such effect, disbelieve the prosecutor and find that the asserted justification is merely a pretext for intentional race-based discrimination. See Batson, supra, at 93. But if, as in this ease, the trial court believes the prosecutor’s nonracial justification, and that finding is not clearly erroneous, that is the end of the matter. . Batson does not require that a prosecutor justify a jury strike at the level of a for-cause challenge. It also does not require that the justification be unrelated to race. Batson requires only that the prosecutor’s reason for striking a juror not be the juror’s race.

Justice Blackmun,

dissenting.

I dissent, essentially for the reasons stated by Justice Stevens in Part II of his opinion, post, at 378-379.

Justice Stevens,

with whom Justice Marshall joins, dissenting.

A violation of the Equal Protection Clause requires wl at our cases characterize as proof of “discriminatory purpose.” By definition, however, a prima facie case is one that is established by the requisite proof of invidious intent. Unless the prosecutor comes forward with an explanation for his pe-remptories that is sufficient to rebut that prima facie case, no additional evidence of racial animus is required to establish an equal protection violation. In my opinion, the Court therefore errs when it concludes that a defendant’s Batson challenge fails whenever the prosecutor advances a nonpre-textual justification that is not facially discriminatory.

1 — <

In Batson v. Kentucky, 476 U. S. 79 (1986), we held that a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination” sufficient to satisfy the defendant’s burden of proving an equal protection violation. Id., at 97. “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation.” Ibid. If the prosecutor offers no explanation, the defendant has succeeded in establishing an equal protection violation based on the evidence of invidious intent that gave rise to the prima facie case. If the prosecutor seeks to dispel the inference of discriminatory intent, in order to succeed his explanation “need not rise to the level justifying exercise of a challenge for cause.” Ibid. However, the prosecutor’s justification must identify “‘legitimate reasons’” that are “related to the particular case to be tried” and sufficiently persuasive to “rebu[t] a defendant’s prima facie case.” Id., at 98, and n. 20.

An avowed justification that has a significant disproportionate impact will rarely qualify as a legitimate, race-neutral reason sufficient to rebut the prima facie case because disparate impact is itself evidence of discriminatory purpose. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 265-266 (1977); Washington v. Davis, 426 U. S. 229, 242 (1976). An explanation based on a concern that can easily be accommodated by means less drastic than excluding the challenged venireperson from the petit jury will also generally not qualify as a legitimate reason because it is not in fact “related to the particular case to be tried.” Batson, 476 U. S., at 98; see Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 (1975) (availability of nondiscriminatory alternative is evidence of discriminatory motive). Cf. also Richmond v. J. A. Croson Co., 488 U. S. 469, 507 (1989) (State cannot make race-based distinctions if there are equally effective nondiscriminatory alternatives). And, as in any other equal protection challenge to a government classification, a justification that is frivolous or illegitimate should not suffice to rebut the prima facie case. See, e. g., Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985); id., at 452 (Stevens, J., concurring); Western & Southern Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U. S. 648, 677 (1981) (Stevens, J., dissenting).

If any explanation, no matter how insubstantial and no matter how great its disparate impact, could rebut a prima facie inference of discrimination provided only that the explanation itself was not facially discriminatory, “the Equal Protection Clause ‘would be but a vain and illusory requirement.’” Batson, 476 U. S., at 98 (quoting Norris v. Alabama, 294 U. S. 587, 598 (1935)). The Court mistakenly believes that it is compelled to reach this result because an equal protection violation requires discriminatory purpose. See ante, at 359-360, 364. The Court overlooks, however, the fact that the “discriminatory purpose” which characterizes violations of the Equal Protection Clause can sometimes be established by objective evidence that is consistent with a decisionmaker’s honest belief that his motive was entirely benign. “Frequently the most probative evidence of intent will be objective evidence of what actually happened,” Washington v. Davis, 426 U. S., at 253 (Stevens, J., concurring), including evidence of disparate impact. See, e. g., Yick Wo v. Hopkins, 118 U. S. 356 (1886); Gomillion v. Lightfoot, 364 U. S. 339 (1960); Sims v. Georgia, 389 U. S. 404, 407 (1967); Turner v. Fouche, 396 U. S. 346, 359 (1970). The line between discriminatory purpose and discriminatory impact is neither as bright nor as critical as the Court appears to believe.

The Court therefore errs in focusing the entire inquiry on the subjective state of mind of the prosecutor. Injury selection challenges, the requisite invidious intent is established once the defendant makes out a prima facie case. No additional evidence of this intent is necessary unless the explanation provided by the prosecutor is sufficiently powerful to rebut the prima facie proof of discriminatory purpose. By requiring that the prosecutor's explanation itself provide additional, direct evidence of discriminatory motive, the Court has imposed on the defendant the added requirement that he generate evidence of the prosecutor's actual subjective intent to discriminate. Neither Batson nor our other equal protection holdings demand such a heightened quantum of proof.

II

Applying the principles outlined above to the facts of this case, I would reject the prosecutor's explanation without reaching the question whether the explanation was pretex-tual. Neither the Court nor respondent disputes that petitioner made out a prima facie case. See ante, at 359. Even assuming the prosecutor’s explanation in rebuttal was advanced in good faith, the justification proffered was insufficient to dispel the existing inference of racial animus.

The prosecutor’s explanation was insufficient for three reasons. First, the justification would inevitably result in a disproportionate disqualification of Spanish-speaking veni-repersons. An explanation that is “race neutral” on its face is nonetheless unacceptable if it is merely a proxy for a discriminatory practice. Second, the prosecutor’s concern could easily have been accommodated by less drastic means. As is the practice in many jurisdictions, the jury could have been instructed that the official translation alone is evidence; bilingual jurors could have been instructed to bring to the attention of the judge any disagreements they might have with the translation so that any disputes could be resolved by the court. See, e. g., United States v. Perez, 658 F. 2d 654, 662-663 (CA9 1981). Third, if the prosecutor’s concern was valid and substantiated by the record, it would have supported a challenge for cause. The fact that the prosecutor did not make any such challenge, see App. 9, should disqualify him from advancing the concern as a justification for a peremptory challenge.

Each of these reasons considered alone might not render insufficient the prosecutor’s facially neutral explanation. In combination, however, they persuade me that his explanation should have been rejected as a matter of law. Accordingly, I respectfully dissent.

       The prosecutor later gave the same explanation for challenging the bilingual potential jurors:
      “. . . I felt that from their answers they would be hard pressed to accept what the interpreter said as the final thing on what the record would be, and I even had to ask the Judge to question them on that, and their answers were — I thought they both indicated that they would have trouble, although their final answer was they could do it. I just felt from the hesitancy in their answers and their lack of eye contact that they would not be able to do it.” App. 6.

       The trial judge appears to have accepted the prosecutor’s reasoning as to his motivation. In response to a charge by defense counsel that the prosecutor excluded Latino jurors out of fear that they would sympathize with the defendant, the judge stated:
      “The victims are all Hispanics, he said, and, therefore, they will be testifying for the People, so there could be sympathy for them as well as for the defendant, so he said [it] would not seem logical in this case he would look to throw off Hispanics, because I don’t think that his logic is wrong. They might feel sorry for a guy who’s had a bullet hole through him, he's Hispanic, so they may relate to him more than they’ll relate to the shooter.” Id., at 8.

      Respondent cites United States v. Perez, 658 F. 2d 654 (CA9 1981), which illustrates the sort of problems that may arise where a juror fails to accept the official translation of foreign-language testimony. In Perez, the following interchange occurred:

        “DOROTHY KIM (JUROR NO. 8): Your Honor, is it proper to ask the interpreter a question? I’m uncertain about the word La Vado [sic]. You say that is a bar.
      “THE COURT: The Court cannot permit jurors to ask questions directly. If you want to phrase your question to me—
      “DOROTHY KIM: I understood it to be a restroom. I could better believe they would meet in a restroom rather than a public bar if he is undercover.
      “THE COURT: These are matters for you to consider. If you have any misunderstanding of what the witness testified to, tell the Court now what you didn’t understand and we’ll place the—
      “DOROTHY KIM: I understand the word La Vado [sic] — l thought it meant restroom. She translates it as bar.
      “MS. IANZITI: In the first place, the jurors are not to listen to the Spanish but to the English. I am a certified court interpreter.
      “DOROTHY KIM: You’re an idiot.” Id., at 662.
      Upon further questioning, “the witness indicated that none of the conversations in issue occurred in the restroom.” Id., at 663. The juror later explained that she had said “ ‘it’s an idiom’ ” rather than “ ‘you’re an idiot,’ ” but she was nevertheless dismissed from the jury. Ibid.

      In Washington v. Davis, 426 U. S. 229 (1976) (concurring opinion), I noted that the term "purposeful discrimination" has been used in many different contexts.
      "Although it may be proper to use the same language to describe the constitutional claim in each of these contexts, the burden of proving a prima facie case may well involve differing evidentiary considerations. The extent of deference that one pays to the trial court's determination of the factual issue, and indeed, the extent to which one characterizes the intent issue as a question of fact or a question of law, will vary in different contexts.
      "Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor.
      "My point in making this observation is to suggest that the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court's opinion might assume. I agree, of course, that a constitutional issue does not arise every time some disproportionate impact is shown. On the other hand, when the disproportion is as dramatic as in Gomillion v. Light foot 364 U. S. 339 or Yick Wo v. Hopkins 118 U. S. 356 it really does not matter whether the standard is phrased in terms of purpose or effect Id. at 253-254.

       An even more effective solution would be to employ a translator, who is the only person who hears the witness’ words and who simultaneously translates them into English, thus permitting the jury to hear only the official translation.


source: Caselaw Access Project

author: Justice Souter

license: Public Domain

text:
    ILLINOIS v. KENTUCKY
    No. 106,
    Orig.
    Argued March 18, 1991
    Decided May 28, 1991

      Souter, J., delivered the opinion for a unanimous Court.

      John Brunsman, Assistant Attorney General of Illinois, argued the cause for plaintiff. With him on the brief was Neil F. Hartigan, Attorney General.

      Rickie L. Pearson, Assistant Attorney General of Kentucky, argued the cause for defendant. With him on the brief were Frederic J. Cowan, Attorney General, and James M. Ringo, Assistant Attorney General.
   Justice Souter

delivered the opinion of the Court.

In this case we return again to the history and geography of the Ohio River valley, as we consider the location of the boundary of the Commonwealth of Kentucky with the State of Illinois. We hold it to be the line of the low-water mark along the river’s northerly shore as it was in 1792.

I — I

In July 1986, Illinois sought leave to file a bill of complaint against Kentucky, invoking this Court’s original jurisdiction to resolve a disagreement about the location of the common boundary of the two States. See U. S. Const., Art. Ill, §2. Illinois asked the Court to declare “the boundary line ... to be the low-water mark on the northerly shore of the Ohio River as it existed in 1792,” Report of Special Master 1-2, and to enjoin Kentucky “from disturbing in any manner the State of Illinois or its citizens from the peaceful use, and enjoyment of all land, water and jurisdiction within the boundaries of Illinois as established by the Court,” id., at 2. We granted leave to file the bill of complaint, 479 U. S. 879 (1986), and appointed the Honorable Robert Van Pelt as Special Master.

In its answer to the complaint, Kentucky denied that the boundary was the 1792 line and claimed it to be the river’s northerly low-water mark “as it exists from time to time.” The answer raised the “affirmative defenses” of acquiescence and laches, and invoked certain “principles of riparian boundaries.” Report of Special Master 2.

The parties spent the next three years in discovery and, after submitting evidence to the Special Master in January 1990, were granted additional time to develop the evidentiary record on Kentucky’s claim of prescription and acquiescence. After receiving this evidence in April 1990, the Special Master submitted a report to this Court, which was ordered filed. 498 U. S. 803 (1990).

The Special Master recommended that we (1) determine the boundary between Illinois and Kentucky to be the “low-water mark on the northerly side of the Ohio River as it existed in the year 1792”; (2) find that the record fails to “support the Commonwealth of Kentucky’s affirmative defenses”; (3) find that the construction of dams on the Ohio River has caused “the present low-water mark on the Illinois side of the river [to be] farther north than it was in 1792”; and (4) order the two States’ common boundary to be determined, “as nearly as [the 1792 line] can now be ascertained, . . . either (a) by agreement of the parties, (b) by joint survey agreed upon by both parties, or (c) in the absence of such an agreement or survey, [by the Court] after hearings conducted by the Special Master and the submission by him to the Court of proposed findings and conclusions.” Report of Special Master 48-49.

Kentucky has filed exceptions to the Special Master’s report. While Kentucky challenges many of the factual findings, its primary dispute is with the conclusion that Kentucky has failed to prove its claim, styled as an affirmative defense, that under the doctrine of prescription and acquiescence the boundary is the low-water mark as it may be from time to time.

II

A

We agree in large measure with the Special Master’s report. The threshold issue presented in this case was resolved in Ohio v. Kentucky, 444 U. S. 335 (1980), in which we held that Kentucky’s boundary with Ohio was the northerly low-water mark of the Ohio River as it was in 1792. We based that holding on the history of Virginia’s 1784 cession to the United States of the lands “northwest of the river Ohio” and Kentucky’s succession to Virginia’s northwest boundary upon reaching statehood in 1792. Id., at 337-338. We relied on the prior opinion in Indiana v. Kentucky, 136 U. S. 479, 518-519 (1890), in which Justice Field, for a unanimous Court, reviewed this history and held that Kentucky’s boundary with Indiana followed the low-water mark on the northerly shore of the Ohio River “when Kentucky became a State.” Ibid. The same history and precedent that supplied the general rule for determining the boundary separating Kentucky from its neighboring States of Ohio and Indiana on the Ohio River also govern the determination of Kentucky’s historical boundary on that river with Illinois.

Kentucky has, indeed, conceded that “if this case were before the Court simply as a matter of law, Ohio v. Kentucky . . . would be controlling precedent.” Exceptions of Commonwealth of Kentucky 9 (emphasis in original). Kentucky’s exceptions assume, rather, that the case does not turn on the issue of law decided in Ohio v. Kentucky, but on the “factual issue of acquiescence which Kentucky has raised as an affirmative defense on the question of its boundary with Illinois.” Exceptions of Commonwealth of Kentucky 9-10. Kentucky contends that it has long asserted, and Illinois has acquiesced in the assertion, that the common boundary of the two States is the low-water mark of the Ohio River, not as it was in 1792, but as it may be from time to time.

Although Kentucky has styled its acquiescence claim an affirmative defense, this “defense,” if successfully proved, would not only counter Illinois’ boundary claim but also establish Kentucky’s own position. To do this on a theory of prescription and acquiescence, Kentucky would need to show by a preponderance of the evidence, first, a long and continuous possession of, and assertion of sovereignty over, the territory delimited by the transient low-water mark. Longstanding “[possession and dominion are essential elements of a claim of sovereignty by prescription and acquiescence.” Georgia v. South Carolina, 497 U. S. 376, 389 (1990). Kentucky would then have the burden to prove Illinois’ long acquiescence in those acts of possession and jurisdiction. As we stated in Oklahoma v. Texas, 272 U. S. 21, 47 (1926), there is a “general principle of public law” that, as between States, a “long acquiescence in the possession of territory under a claim of right and in the exercise of dominion and sovereignty over it, is conclusive of the rightful authority.” See also Georgia v. South Carolina, supra, at 389 (“[L]ong acquiescence in the practical location of an interstate boundary, and possession in accordance therewith, often has been used as an aid in resolving boundary disputes” between States).

The record developed before the Special Master in this case fails to support Kentucky’s claim of sovereignty by prescription and acquiescence. After a thorough review of the voluminous evidence presented by both States, the Special Master concluded that Kentucky had proved neither long and continuous action in support-of its claim to a boundary at the northerly low-water mark as it might be from time to time, nor Illinois’ acquiescence in that claim. While Kentucky’s many exceptions to the extensive factual findings on these issues do not merit discussion seriatim, an examination of a few will indicate the evidentiary support generally for the Special Master’s conclusions.

The Special Master first assessed the evidence bearing on Kentucky’s exercise of dominion. According to Kentucky’s view of the boundary, for example, any permanent structure extending out over the water from the river’s northern bank would be within Kentucky’s territory and subject to its taxing power, one of the primary indicia of sovereignty. The record in this case, however, shows that Kentucky has imposed a property tax on only 3 of the 15 structures that extend out, into, or over the water from the Illinois shoreline. Of the three affected taxpayers, one who received a Kentucky tax bill for property extending south into the river was also taxed on the same structure by Illinois, and another paid the Kentucky bill only under protest, “claiming that the property [taxed was] within the State of Illinois.” Report of Special Master 37. The remaining 12 structures extending south into the river from Illinois have never been taxed by Kentucky.

Kentucky advanced what it took to be a stronger claim to having exercised exclusive taxing jurisdiction right up to the transient low-water mark by offering evidence of its ad valo-rem taxation of barges and other watercraft traveling on the river. But this evidence simply fails to speak directly to the boundary issue in this case. Vessels traveling the river usually follow a sailing line charted by the United States Army Corps of Engineers which, for most of the stretch in question, is either close to the center of the river or near the Kentucky shore. Illinois does not dispute that the sailing line, like most of the river, is within the boundary and jurisdiction of Kentucky. Id., at 38. The territory in question, rather, is thought to be a comparatively narrow sliver of the Ohio along its northerly shore, where barges and watercraft would rarely venture. As to the sliver, Kentucky’s acts of taxation have been, at best, equivocal, and the Special Master was accordingly correct when he observed that the fact of Kentucky’s taxation of barges “traveling on the Ohio River within the acknowledged jurisdiction of Kentucky, does not support Kentucky’s claim of exclusive jurisdiction of the entire breadth of the river.” Ibid.

This evidence of Kentucky's failure to engage in consistent and unequivocal acts of occupation and dominion does not stand alone, however, for we are concerned not only with what its officers have done, but with what they have said, as well. And what they have said has, in several instances, supported Illinois’ claim. The Legislative Research Commission of the Kentucky General Assembly and the Attorney General of Kentucky have each taken the position in the recent past that Kentucky’s northern border is the 1792 low-water mark. An Information Bulletin issued by the Legislative Research Commission in December 1972 states that “‘Kentucky’s North and Western boundary, to-wit, the low-water mark on the North shore of the Ohio River as of 1792 has been recognized as the boundary based upon the fact that Kentucky was created from what was then Virginia.’” Id., at 15. An earlier opinion by the Commonwealth’s Attorney General issued in 1963 asserted that the “‘law, of course is that the boundary line between the states of Indiana and Kentucky is the low-water [mark] on the north shore of the Ohio as it existed when Kentucky became a state in 1792.’” Id., at 12. These statements came to our attention in Kentucky’s last boundary case in this Court, where we found it “of no little interest” in deciding Ohio v. Kentucky, 444 U. S., at 340-341, that these “Kentucky sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary.” It is hardly of less interest this time.

Just as this representative evidence fails to indicate any longstanding exercise of occupation and dominion of the disputed area by Kentucky, the record is equally unsupportive of the claim of Illinois’ acquiescence. It is true that the Illinois Constitution of 1818 described the State’s boundary with Kentucky on the Ohio River simply as following “along its north-western shore,” Ill. Const., Preamble (1818), and the same description was employed in the State Constitutions of 1848 and 1870, see Ill. Const., Art. I (1848), Ill. Const., Art. I (1870). But these are verbatim recitations of the congressional language describing Illinois’ boundary in the State’s Enabling Act of April 18, 1818, ch. 67, 3 Stat. 428, and the Special Master correctly reasoned that “[w]hat Congress intended to be the southern boundary of Illinois, was the same southern boundary granted the states of Ohio and Indiana when they were formed. . . . Illinois, like Ohio and Indiana, was created from the territory ceded by Virginia to the United States. ...” Report of Special Master 28. Although the current version of the Illinois Constitution, adopted in 1970, omits any description of the State’s boundaries, the 1870 Constitution’s language remained the reference point in the most recent Illinois case dealing with the State’s river' boundary that has come to our attention. See People ex rel. Scott v. Dravo Corp., 10 Ill. App. 3d 944, 944-945, 295 N. E. 2d 284, 285 (1973), cert. denied, 416 U. S. 951 (1974).

The courts of Illinois, indeed, for some time took an even less hospitable view of Kentucky’s interests than the Illinois Constitution did. In Joyce-Watkins Co. v. Industrial Comm’n, 325 Ill. 378, 381, 156 N. E. 346, 348 (1927), the State Supreme Court adopted a theory that would have ratchetted the boundary line forever southward toward the deepest point of the river, by holding the boundary to be the low-water mark on the northerly shore of the river at the “point to which the water receded at its lowest stage.” This description of the boundary was followed by Illinois courts until at least 1973, see People ex rel. Scott v. Dravo Corp., supra, and while it plainly conflicts with our decisions in Indiana v. Kentucky, 136 U. S. 479 (1890), and Ohio v. Kentucky, supra, its use over nearly 50 years shows that Illinois did not acquiesce in any claim by Kentucky to a low-water mark that might edge northward over time.

Such was the force of the evidence adduced, and such was its failure to support Kentucky’s claim of prescription and acquiescence.

B

Kentucky’s other affirmative defenses are likewise unavailing. The Special Master correctly observed that the laches defense is generally inapplicable against a State. See Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U. S. 273, 294 (1983) (O’Connor, J., dissenting) (collecting authorities); Guaranty Trust Co. v. United States, 304 U. S. 126, 132-133 (1938); cf. Weber v. Board of Harbor Comm’rs, 18 Wall. 57, 70 (1873) (statutes of limitations generally not applicable to State). Although the law governing interstate boundary disputes takes account of the broad policy disfavoring the untimely assertion of rights that underlies the defense of laches and statutes of limitations, it does so through the doctrine of prescription and acquiescence, see generally Georgia v. South Carolina, supra, which Kentucky has failed to satisfy.

Kentucky’s affirmative defenses based on the “principles of riparian boundaries, including accretion, erosion and avulsion,” require no extended consideration, for Kentucky concedes that these would affect the ultimate boundary determination only if it prevailed on the issues of prescription and acquiescence. Exceptions of Commonwealth of Kentucky 48-49 (“It is Kentucky’s position that if it prevails on its affirmative defense of acquiescence, then the well-recognized principles of accretion, erosion and avulsion would obviously apply to a current shoreline boundary as it may change from time to time”). We have previously held as much, concluding that “the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river” have no application to Kentucky’s Ohio River boundary because of the “historical factors” stemming from the cession by Virginia of the land northwest of the river to the United States. Ohio v. Kentucky, supra, at 337.

Kentucky’s final exception to the Special Master’s report goes to the finding in Part III.C. that construction of dams on the river has permanently raised its level above that of 1792, consequently placing the present low-water mark on the Illinois side farther north than it was in 1792. Kentucky calls any question about the relative locations of the 1792 line and today’s low-water mark premature, and we agree. Indeed, the Special Master himself suggested that this issue might, if necessary, “be determined at a later date,” Report of Special Master 47, after he had made further recommendations to resolve any disputes the parties may have about the exact location of the 1792 line.

Ill

The exception of the Commonwealth of Kentucky to Part III.C. and Recommendation (3) of the report of the Special Master, as to the effect of modern dams on the level of the Ohio River, is sustained. Kentucky’s other exceptions are overruled. The report, save for Part III.C. and Recommendation (3), is adopted, and the case is remanded to the Special Master for such further proceedings as may be necessary to prepare and submit an appropriate decree for adoption by the Court, locating the 1792 line.

It is so ordered.

      In June 1988, we appointed a new Special Master, Matthew J. Jasen, Esq., to replace Judge Van Pelt, who had died in April 1988. 487 U. S. 1215.