It isn’t easy to engage in racial discrimination so egregious that multiple Republican nominees of the Shelby County Court can’t ignore it, but Mississippi managed to pull it off by having a prosecutor with a history of racial discrimination try to strike 41 of 42 prospective African-American jurors. Roberts shrewdly assigned the opinion to Bart O’Kavanaugh to give him some moderate cred before he provides the critical fifth vote to declare permanent Republican rule in Wisconsin and North Carolina etc. next week. As Alito made clear in his pained “please don’t mistake me for someone who is going to start caring about racial discrimination of violations of civil liberties on the regular” concurrence, this was an extreme set of facts that doesn’t portend any fundamental shift in the Court’s jurisprudence, but still better to have it come out the right way that not.
Meanwhile, Thomas (joined on this point by Gorsuch) argues that “the only clear errors in this case are committed by today’s majority,” because they didn’t apply standards that would have it essentially impossible to prove racial discrimination. The majority, according to Thomas, is ignoring the real victim here, the southern criminal justice system:
Perhaps the Court lacked confidence in the proceedings below. Flowers’ case, like the others needlessly remanded in light of Foster, comes to us from a state court in the South. These courts are “familiar objects of the Court’s scorn.”
The reasons for this are a complete mystery!
Thomas is right on one point — the thrust of the majority’s opinion undermines the whole concept of preemptory challenges. But of course the appropriate conclusion if this is true is to join Breyer and Thurgood Marshall in finding preemptory challenges in criminal trials inherently inconsistent with the 14th Amendment.