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Monthly Archives: May 2016


Supreme Court goes minimalist in jury selection ruling

How egregious must a state’s racially discriminatory behavior in jury selection be before the Roberts Court, with its pervasive skepticism toward claims of racial discrimination, is willing to rap the perpetrator’s knuckles? On Monday, we found out when the Supreme Court voted 7-1 to overturn a Georgia man’s death sentence because the state had used its peremptory challenges to systematically strip the jury of all African-American potential jurors. (Unlike challenges for cause, under which jurors may be removed only for specified reasons pointing to bias, peremptory challenges do not require any justification.) Notably, the opinion was self-assigned by Chief Justice John Roberts, who once wrote, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Under the leading Supreme Court precedent on peremptory challenges, Batson v. Kentucky (1986)once a defendant claims that the prosecution has struck potential jurors in a racially discriminatory manner,  the state shoulders the burden of offering a race-neutral justification for its removals. The defendant then must demonstrate that the state’s proffered justification was pretext for illicit discrimination. This last stage is the one where Batson claimants tend to get stuck: trial judges tend to take prosecutors’ explanations at face value, appellate judges defer strongly to trial judges’ rulings on Batson motions, and defendants typically lack the evidence needed to demonstrate that prosecutors were not, in fact, behaving race-neutrally.

What was different in the scenario featured in Foster v. Chatman? First, the defendant, Timothy Foster, was able to invoke Georgia’s Open Records Act to force disclosure of the prosecution’s file from his trial. Without this information, his Batson claim would have been rejected, much as his previous two Batson claims had been.Instead, Foster was able to reveal the arsenal of smoking guns left by the prosecution. Second, the Supreme Court, with the notable exception of Justice Clarence Thomas, did not display typical levels of deference to the state courts’ rulings on Foster’s Batson motions. Chief Justice Roberts explained thoroughly, and in pointed prose, how the Georgia prosecutors’ race-neutral justifications for its peremptory challenges could not withstand even the most cursory scrutiny. The result was a ruling that garnered the support of most of the Court’s conservatives, as well as all of its liberals.

As I argued in an earlier post, this ruling should not have been surprising, given the evidence unearthed by the defendant. Any suspense would have to come from the scope of the ruling. Few should have expected the Court to consider whether peremptory challenges as a practice could be reconciled with the Fourteenth Amendment, a position Justice Thurgood Marshall rejected in his Batson concurrence. In Marshall’s view, peremptory challenges were inherently about hunch-playing, and since there was no way to ensure that prosecutorial hunch-playing would be free of invidious stereotyping, prosecutors should be limited to challenges for cause. But Marshall concurred alone, unable to persuade even his fellow liberal William Brennan to join him, and no other justice has subsequently taken Marshall’s position.

The question, then, was whether the Court would set further constraints on the use of peremptory challenges. That did not happen either; what we got was a straightforward application of Batson principles, aided by all that juicy documentary evidence. What will happen when, as is typically the case, such evidence is not readily available? The majority didn’t offer much guidance. Perhaps the cost of a near-unanimous ruling was a narrow holding, but while that narrow holding serves Timothy Foster well, it does little for the next Timothy Foster in the system.


I know justices, I’ll have the best justices

Here, courtesy of AP, is the list of names Donald Trump is floating as potential Supreme Court nominees:

  • Steven Colloton of Iowa (8th Circuit Court of Appeals since 2003)(served as associate independent counsel for the Whitewater investigation.)
  • Allison Eid of Colorado (Colorado Supreme Court since 2006)
  • Raymond Gruender of Missouri (8th Circuit Court of Appeals since 2004)
  • Thomas Hardiman of Pennsylvania (3rd Circuit Court of Appeals since 2007)
  • Raymond Kethledge of Michigan (6th Circuit Court of Appeals since 2006)
  • Joan Larsen of Michigan (Michigan Supreme Court since 2015)
  • Thomas Lee of Utah (Utah Supreme Court since 2010)
  • William Pryor of Alabama (11th Circuit Court of Appeals since 2004; previously state’s Attorney General)
  • David Stras of Minnesota (Minnesota Supreme Court since 2010)
  • Diane Sykes of Wisconsin (7th Circuit Court of Appeals since 2004; previously associate justice of Wisconsin Supreme Court)
  • Don Willett of Texas (Texas Supreme Court since 2005)(not a fan of Trump)

If Jim Geraghty’s post at National Review earlier that day was representative, conservatives were getting antsy over the lengthy interval since Trump’s March 21 promise to release a list of potential nominees. But they’ll probably see little to dislike in this list, stocked high with young nominees with sterling conservative credentials and a paucity of heterodox rulings needing absolution from conservative voters and commentators. (Ian Millhiser at Think Progress describes why Pryor and Sykes, two of the favorites from this list, would be a nightmare for progressives. For other criticism, see here and here.) Trump certainly got his money’s worth from the Heritage Foundation and any other movement conservative outlets to which he outsourced this task. And anyone indulging in the Naderite fantasy that a presidential election without Bernie Sanders offers a Tweedledee vs. Tweedledum should think really, really hard about the prospect of several of these individuals holding seats on the Supreme Court for the next 30 years.