(“I will respect precedent!” –members of the conservative majority on the Supreme Court whispered quietly into the wind as they raced back to the partisan enclaves they crawled out of…)
Six trials, one alleged crime, one defendant. Each of the trials was either successfully challenged for prosecutorial misconduct or resulted in a hung jury. Meanwhile the defendant, an African-American man named Curtis Flowers, has been on and off death row since 1997—and none of the four juries that have convicted him had more than one black juror.
Thirty-three years ago today, the Supreme Court ruled that intentionally striking people from a jury because of their race violates the equal protection clause of the Fourteenth Amendment. The decision, Batson v. Kentucky, purported to counter decades of Jim Crow-era systematized racism in the criminal justice system and has been interpreted to lay the foundation that a single peremptory strike (the striking of a juror for an unenumerated reason) could be challenged as discriminatory.
This term, the Supreme Court will address several questions regarding the extent to which the criminal justice system will tolerate racial prejudice. While the answer ought to be “very little” or “not at all,” the Court is confronting two cases where lower courts believed the scale tipped in favor of letting open race discrimination stand, at the expense of defendants’ right to a fair and impartial trial. Presented with these issues head on, the Supreme Court must now recalibrate that scale, and make good on its own centuries-old precedents requiring that race discrimination be “eradicated root and branch” from the criminal justice system.
Last week the Court heard argument in Buck v. Davis, a case in which Duane Buck was sentenced to death because his own counsel relied on an expert witness who testified that because Mr. Buck was African-American, he was more likely to commit future acts of violence. Read more
Around this time last year, Supreme Court commentators were heralding what appeared to be the beginnings of a new liberal era on the Court. Among the supposed signs were decisions that saved the Affordable Care Act (once again) from a manufactured Republican challenge, and another that legalized same-sex marriage across the country. In response, we helped to curate an entire issue of The Nation magazine refuting that generalization.
Flash forward to this past week and reading the headlines was déjà vu. “[F]or the second year in a row,” David Savage of the L.A. Times proclaimed, “the court tilted to the left in its major decisions.” At The New York Times, a graphic displayed several conservative justices—including Justice Alito!—drifting to the ideological left. Another Times article observed that, “for the second term in a row,” the Roberts Court “delivered liberal decisions at a rate not seen since the famously liberal court led by Chief Justice Earl Warren.” Read more