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.