The Supreme Court issued a surprisingly good decision in a racial jury-selection case on Thursday. In a 5–4 decision joined by Chief Justice John Roberts and the court’s three liberals, Justice Brett Kavanaugh explained how two Mississippi courts violated the Constitution by allowing criminal prosecutors to strike Black jurors from the courtroom, then preventing the defense’s lawyers from objecting to the strikes. The ruling, Pitchford v. Cain, is an important victory for Terry Pitchford and others like him who have been overprosecuted by Southern state governments. But how the opinion came to be is also a story of three others: Kavanaugh, who has a long history of being unusually clear-eyed in this area of the law, going back to his law school days; a former Mississippi prosecutor who has a sordid past with the Black citizenry he’s supposed to protect; and Roberts, who, despite ruling for decades on racial issues, can’t seem to decide whether racism exists.
Pitchford was a Black teenager who, in 2004, robbed a grocery store in Mississippi. He was joined in the robbery by another Black teenager, Eric Bullins. After they were arrested, the differences between Bullins and Pitchford proved key in the way the cases played out. Bullins was 16, and Pitchford was 18; it was Bullins, not Pitchford, who shot and killed the white store owner during the robbery. As is common, the two were tried separately, and Bullins reached a plea deal that led to a 20-year sentence for homicide. But even though Pitchford hadn’t taken the shots that killed the store owner, the state charged him with capital murder and sought the death penalty.
Jury selection can win or lose a case in racially charged criminal matters. That’s why it’s so important that in 1986’s Batson v. Kentucky, the Supreme Court affirmed that the 14th Amendment bars prosecutors from selecting or striking jurors based on race. When Pitchford’s case went to trial, Mississippi prosecutor Doug Evans tried to use his allotted peremptory strikes to remove four of the five Black candidates from the jury pool. Pitchford’s defense lawyer attempted to object to the prosecution’s juror strikes for being racially motivated, raising what’s called a Batson objection. After that, Evans provided what he said were race-neutral reasons for the strikes, including that one juror had been 15 minutes late to court after a break. The trial judge, Joseph Loper, then said he believed the prosecution, allowed the jurors to be struck, and prevented defense counsel any opportunity to make further argument, immediately moving on.
The problem with this is that Loper skipped a crucial step. Batson established a three-part framework for racial juror challenges: Defense counsel challenges a strike, the prosecutor gives race-neutral reasons for it, then defense counsel has the opportunity to rebut those proffered reasons as pretextual. Loper allowed the first two steps but never gave the defense another opportunity to argue that the race-neutral reasons were pretextual.
On Thursday, the Supreme Court saw through these suspicious procedural missteps and called foul. Kavanaugh’s opinion was short because the analysis was fairly simple: Batson requires a three-step process, yet the Mississippi trial court allowed only two. The Mississippi Supreme Court and the U.S. Court of Appeals for the 5th Circuit—far and away two of the most conservative courthouses in the country—ruled that Pitchford’s lawyer had waived the Batson objection by failing to raise it during the case. But as the justices explained, Pitchford’s lawyer had tried to raise it; the trial judge had simply shut down the lawyer after he attempted to bring up the point.
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This isn’t the first time Kavanaugh has written about the scourge of racism in jury selection. While attending Yale Law School, Kavanaugh wrote a law review student note about Batson, arguing that trial courts have a responsibility to hold robust Batson hearings that allow both the defense counsel and the court to test whether there are “truly neutral reasons for the peremptory challenges.” Then, in 2019, the justice wrote Flowers v. Mississippi, emphatically reaffirming Batson. Remarkably, Flowers involved the same prosecutor, Evans, trying a different Black man, Curtis Flowers, before the same judge, Loper. Evans tried the case an astounding six times, striking an inordinate number of potential Black jurors each go-round, until he finally got a capital conviction to stick. In Flowers, Kavanaugh criticized Evans’ “blatant pattern of striking black prospective jurors” as part of a “relentless, determined effort to rid the jury of black individuals.” Although he didn’t say so on Thursday, this history may have informed his suspicion that racial animus was afoot in Pitchford’s case too.
There is a striking incongruity between Kavanaugh’s ability to perceive racism in these cases and his broader refusal to acknowledge unconstitutional discrimination in just about every other context. For instance, the justice infamously wrote that the Constitution permits immigration agents to engage in racial profiling and detain individuals because they look or sound Latino. He signed on to the court’s blithe decision ending affirmative action by disregarding centuries of entrenched racism. Just last month, he joined Louisiana v. Callais, gutting the Voting Rights Act’s protection for racial minority groups and unleashing a wave of Jim Crow–style gerrymandering across the South. As chief justice, of course, Roberts wrote or joined all those decisions as well. So why did the two justices draw the line here, of all places, when the victims of racism are especially unsympathetic defendants accused of heinous crimes?
Perhaps both men genuinely believe in Batson’s promise. Or maybe, more cynically, they see these cases as an easy opportunity to prove that their addiction to “colorblindness” does occasionally redound to the benefit of minority groups. In so many other areas, a “colorblind Constitution” translates into a free hand for white supremacy; for proof, look no further than Callais, which condemned maps that consciously sought to preserve Black representation and praised ostensibly race-neutral maps that annihilated it. But in Batson cases, the colorblind rule really does help effectuate the 14th Amendment’s promise of equality. And it is most often imposed against particularly bumbling prosecutors who aren’t savvy enough to conceal their discriminatory tactics; just look at Evans, now twice rebuked by the Supreme Court, who marked prospective jurors by race, then devised comically implausible pretexts for striking them. Kavanaugh and Roberts are notoriously hesitant to accuse political actors of racism. Here, Evans pretty much invited the charge.
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What happens next? Kavanaugh’s opinion is quite narrow; it merely identifies a procedural Batson violation and does not by itself invalidate Terry Pitchford’s death sentence. But if history is any guide, that sentence won’t stand for long. In Flowers, Justice Clarence Thomas confidently declared in dissent that Mississippi could retry and convict Curtis Flowers. Instead, prosecutors dropped the charges and let him walk free. On Thursday, Justice Neil Gorsuch—dissenting alongside Thomas, as well as Justices Samuel Alito and Amy Coney Barrett—similarly suggested that Pitchford may still be put to death. “If the court’s decision is mistaken,” he wrote, “at least its impact is limited.” But Kavanaugh’s conclusion that Pitchford was denied his Batson rights is not so easy to dismiss. The damage inflicted by prematurely rejecting Pitchford’s jury objection was early in the case and fundamental to its verdict, and the majority opinion strongly suggests that the only fair remedy to this crucial error would be a new trial.
Kavanaugh and Roberts deserve credit for seeing through Evans’ efforts, in this case and Flowers, to construct as white a jury as possible. They should not, however, be expected to carry over this nuanced perception of racism in other settings. Their treasured colorblindness will continue to work against people of color in the vast majority of cases. And criminal defendants who face less malicious prosecutors will not have as much luck at SCOTUS. It is, no doubt, an encouraging sign that five justices will still draw the line somewhere. Yet this highly selective application of equal protection illustrates once again that this court will recognize genuine racism only when doing so costs it almost nothing.
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