As of Friday, Clarence Thomas has been a Supreme Court justice for 10,096 days. In that time, he has probably disgraced the seat occupied by Thurgood Marshall 10,096 times–and that’s probably a conservative estimate.
It initially appeared that his lowest point came in his dissent from Obergefell v. Hodges, in which he suggested–with a straight face–that black slaves did not lose their dignity simply because they were enslaved, and Japanese-Americans didn’t lose their dignity when they were interned during World War II. Thomas apparently expected us to believe when a person loses his freedom, he does not lose his dignity.
Anyone reading that dissent can hardly be blamed for wondering how someone this staggeringly ignorant of history could wind up on any court, let alone the highest court in the country. Well, Thomas gave us yet another reason to wonder how he wound up on the Supreme Court. We now know that if it were up to him, prosecutors would be able to boot potential jurors just because they’re black.
Back in 1996, Curtis Flowers was arrested and charged with murdering four people outside a furniture store in Winona, Mississippi. He has been tried six times in the last two decades for this murder. In at least five of them, Montgomery County prosecutor Doug Evans used all of his peremptory challenges to bounce prospective black jurors. Peremptory challenges allow either prosecutors or defense attorneys to remove prospective jurors without stating a reason.
Three trials ended in death sentences that were reversed on appeal to the Mississippi Supreme Court due to prosecutorial misconduct. One of those reversals came after the state supremes found that Evans blatantly discriminated against potential black jurors–and in so doing, violated Batson v. Kentucky, a 1986 Supreme Court decision that ruled peremptory challenges cannot be racially motivated.
Two others ended in mistrials due to hung juries. The sixth trial also ended in a conviction and death sentence that was appealed all the way to the Supreme Court. During oral arguments in March, the Supremes indicated that they were troubled by Evans’ tactics. Watch here, via CBS News.
On Thursday, the Supremes threw out Flowers’ conviction in a 7-2 decision, with three of the court’s conservatives–Chief Justice John Roberts, Samuel Alito, and Brett Kavanaugh–joining all four liberals. Kavanaugh wrote an opinion that amounted to a 31-page tongue-lashing of Evans.
Kavanaugh, who has sought to eradicate racial bias in jury selection since his law school days, rightly noted that trials must be “free of racial discrimination in the jury selection process” in order to be credible. He wrote that Evans’ handling of the trial didn’t even begin to meet that standard. Not only did Evans bounce all but one perspective black juror, but he questioned the prospective black jurors more closely than their white counterparts.
All of this led him to conclude that Evans’ stated reasons for excluding black jurors didn’t add up, and were mere cover for discriminatory intent. Kavanaugh paid particular attention to Evans’ challenge of Carolyn Wright, a black prospective juror. While Evans claimed he bounced Wright because she knew several defense witnesses and had worked at the same Walmart as Flowers’ father, Kavanaugh noticed that at least three white prospective jurors had connections to witnesses in the case–and Evans didn’t ask about them.
To Kavanaugh’s mind, excluding Wright was a “clear error” that demanded reversing the conviction. The ruling raises the possibility that Flowers will be tried for a seventh time if prosecutors go that route.
Now who would have a problem with this ruling? Well, Thomas had a big problem with it–big enough that he felt he needed 42 pages to express it. He spent most of his dissent trying to knock down Kavanaugh’s reasoning, in which the other dissenter, Neil Gorsuch, joined.
But he went several miles off the rails in the final eight pages. If it were up to him, he would strike down Batson, since it raises the prospect of a manifestly guilty person being allowed to go free “because a juror was arguably deprived of his right to serve on a jury.” He believes that if a juror is bounced for discriminatory reasons, a defendant shouldn’t have standing to challenge his conviction as a result.
There are few more egregious violations of the 14th Amendment than excluding jurors on account of race. Indeed, Kavanaugh notes that the only more “substantial opportunity” that ordinary people have to take part in our democracy is to vote. And yet, if it were up to Thomas, a defendant would not be able to say a word if it emerged that a prosecutor used peremptory challenges to bounce jurors for racial reasons.
Thomas either doesn’t know or doesn’t understand that excluding jurors for that reason, especially in areas with particularly fraught racial histories, creates the appearance that there is one set of rules for white defendants and another set of rules for black defendants. That is un-American. Apparently Gorsuch knew this too, as he didn’t join in this portion.
More seriously, if we take Thomas’ logic further, it would cut the legs out from under one of the most sacrosanct principles of our criminal-justice system–that even those who are manifestly guilty have rights that must be respected. There’s a reason that principle is in place–to protect the integrity of the system. And yet, a Supreme Court justice is willing to go on record as saying that principle doesn’t matter.
There is a grotesque irony in this. Marshall made his reputation by leading the successful effort to knock down racial segregation in public schools. And now, the man who occupies his Supreme Court seat has effectively said that he is fine with one of the most pernicious legacies of racial discrimination.
That rumbling sound you heard when the decision was released was the sound of Marshall turning in his grave. It cannot be repeated enough–the seat he occupied for 24 years has been disgraced yet again.
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