Solitary Confinement And White Juries

I have a piece up on Anthony Kennedy’s concurrence drawing attention to solitary confinement, contrasting it with Clarence Thomas’s opinions from last Thursday, which were apparently a collage of Michael Savage transcripts and Harry Callahan quotes.

I discuss it briefly, but another of the underlying issues in Davis v. Ayala — the use of peremptory challenges by prosecutors to systematically remove people of color from the jury pool — is also extremely important. The latest in Mark Graber’s recent series on equality and American constitutional law in 2015 is excellent on this point:

The bottom line is that ensuring white-only juries is getting easier and easier. First, you claim trial strategy and exclude defense counsel from the Batson hearing. Then you point to a difference between the answers given by a potential juror of color and a potential white juror. You detected more hesitation when the potential juror of color stated he or she would impose capital punishment. You felt the potential white juror more willing to look you in the eye. If your trial judge believes you, you are home free.

One of my most distinguished colleagues recently said that criminal justice will be the civil rights issue of the future. With all due respect, she is wrong. As the lack of response to the substance of Davis v. Ayala demonstrates, no one cares if the United States is slowly moving back to the days of all-white juries. A Supreme Court that declares a right to same-sex marriage will be lionized and free to do what they want in the criminal justice system. The civil rights issue of the future will concern the concerns of the upper-middle class, not the fate of the Hector Ayala’s of the world.

My only quibble is that I don’t see the causal connection implied in the “free to do what they want in the criminal justice system.” Since all that is required in this case is for them to do nothing, the Court doesn’t need any legitimacy points from a decision legalizing same-sex marriage to (as the casino manager in Owning Mahony instructed his clerk after he told him he “didn’t do nothing” to keep a whale happy) don’t do nothing again. Irrespective of the Court’s general popularity, it’s not going to face a backlash by being too deferential on criminal procedure issues. In addition — as I’m sure Graber would agree — the failure of the Court to stop racially discriminatory jury selection isn’t inherent to its power but is the consequence of the Court’s long-term control by Republicans. It’s worth noting that the most moderate justice appointed by a Democratic president has suggested that because they provide such an easy cover for discrimination peremptory challenges violate the Fourteenth Amendment. Ayala was 5-4, and the dissent written by Sonia Sotomayor, who is assembling a significant body of work on equality issues. Change on this particular issue may be a long time coming, or it may be “just” a change in the median vote away.