At the very end of last week’s oral argument in Flowers v. Mississippi, Justice Clarence Thomas asked a question. That fact was notable, because Justice Thomas almost never asks questions of attorneys who appear before the Court. His question in Flowers broke a three-year silence and was only his second in a decade.
Yet for all of the attention Justice Thomas has gotten for speaking, Court watchers have paid insufficient attention to what he said. His question implied a view that is rather strongly at odds with a position that he and other conservative justices have staked out—namely, that the Constitution forbids all government consideration of race, even if employed to counteract prior race discrimination.
Doug Evans is the Inspector Javert of Mississippi
The Flowers case now before the Supreme Court involves the application of the 1986 decision in Batson v. Kentucky. In Batson, the Court held that while a prosecutor need not generally have a good reason for using a peremptory challenge to dismiss a juror, he may not exercise peremptory challenges based on a juror’s race. Batson challenges often involve tricky questions of proof. Prosecutors rarely admit that they were motivated by race, so defense attorneys must try to prove illicit intent through circumstantial evidence, including statistics about the race of the jurors struck.
By any measure, the Flowers case is extraordinary, which explains why it is the subject of Season 2 of the podcast In the Dark. Curtis Flowers is an African American man who was convicted of a 1996 quadruple homicide in a small town in Mississippi. He has consistently maintained his innocence. The case currently pending arises out of his sixth trial for the same offense.
The five prior cases resulted in mistrials or convictions that were overturned on appeal. Two reversals were based on misconduct by prosecutor Doug Evans. And in two of the prior cases Evans committed Batson violations. Across all six trials, Evans had the opportunity to use peremptory challenges against 42 African American jurors. He did so with respect to 41 of them. Evans allowed one African American juror to serve on the jury in the sixth trial, presumably because he believed that doing so would minimize the likelihood of an acquittal or hung jury while also avoiding the charge of a Batson violation. But a prosecutor violates Batson by using any peremptories in a racially discriminatory manner. The fact that Evans did not use all of his peremptories unconstitutionally hardly satisfies that standard.
Most of the Supreme Court oral argument in Flowers focused on two questions. Justice Samuel Alito acknowledged that the backstory was very troubling but wanted to know whether the record established a Batson violation even without regard to that history. Chief Justice John Roberts wanted to know how to formulate a general rule regarding the relevance of the history of a particular prosecutor so that it could be applied in less extreme cases. Other justices had these and other concerns, such as why a prosecutor without an apparent vendetta against Flowers did not at some point substitute for Evans.
An Unfamiliar Voice
My Cornell Law School colleague Sheri Johnson argued for Flowers in the Supreme Court. She had just said that she would waive her rebuttal time if none of the justices had any further questions, when Justice Thomas startled everyone in the courtroom by asking his. He wanted to know whether “any peremptories [were] exercised by the defendant.” Professor Johnson said yes, leading Justice Thomas to follow up by asking “what was the race of the jurors?” that defense trial counsel struck.
Professor Johnson said they were all white but hastened to add that the only issue before the Court was the prosecutor’s race-based motives, not any illicit motive on the part of defense counsel. She also added, in response to a question from Justice Sonia Sotomayor, that defense counsel had only one opportunity even to consider using a peremptory challenge, because prosecutor Evans struck all the other African American jurors before defense counsel had a chance to consider them. The oral argument then concluded.
If I had to predict an outcome in the case, I would say it is likely that Flowers will win. In addition to the four Democratic appointees, Justice Brett Kavanaugh pretty clearly signaled that he regards the Flowers prosecution as deeply flawed. Some of the other conservative justices were troubled by the case but also concerned about how to rule in favor of Flowers without inviting scrutiny of every prosecutor’s history each time a Batson claim is raised. I have no basis for further speculation about the eventual lineup and rationale.
What Was Justice Thomas Implying?
I do want to pause over the apparent premise of Justice Thomas’s question. It is impossible to know exactly what Justice Thomas had in mind. After all, he asked a question rather than made a statement. Still, we can draw some informed inferences.
Suppose we set aside Justice Sotomayor’s interjection. That is, suppose that the defense attorney at trial had numerous opportunities to use her peremptory challenges against African Americans but had instead used them exclusively against white prospective jurors. Why might that matter?
One might think that if the prosecutor uses peremptory challenges on African American jurors while the defense attorney uses them on whites, the result is a balanced jury. That might be true in a jurisdiction that has equal numbers of African Americans and whites in the jury pool, but when African Americans are a minority—as they are in Montgomery County, Mississippi—such “equal” discrimination will lead to an all or nearly-all white jury, as it did in the Flowers case.
Moreover, even if a racially representative jury had been chosen through the combination of discriminatory acts by the prosecutor and defense attorney, that would not obviate the Batson violation. The Court’s cases make clear both that there is no right to a racially representative petit jury and that Batson protects a right to a non-discriminatory process of jury selection, rather than a jury with any particular composition.
Is there some other way to make sense of Justice Thomas’s question? Perhaps he meant to invoke the Supreme Court’s 1992 precedent in Georgia v. McCollum. There the Court held that the Constitution forbids defense counsel as well as prosecutors from using peremptory challenges in a racially discriminatory manner. But that answer should be problematic for anyone and especially for Justice Thomas.
Although Justice Thomas concurred in the result in McCollum, he did so only because he thought the Court was bound by a decision from the previous year holding Batson applicable in civil cases. If he were writing on a clean slate, Justice Thomas said in McCollum, he would rule that a defense attorney (even if a public defender paid by the state) is not a “state actor” bound by the Constitution. Indeed, he went further to say that the whole Batson line of cases was misguided.
To be sure, Justice Thomas was entitled in 1992, as he is entitled today, to take the Court’s settled precedent for granted. However, even if we grant for the sake of argument that Flowers’s defense counsel violated McCollum, that hardly undercuts the Batson claim. For one thing, as Professor Johnson noted in response to Justice Thomas’s question, the only issue before the Court is whether prosecutor Evans violated the Constitution.
Two Wrongs Don’t Make a Right
More fundamentally, two wrongs don’t make a right. That’s not just a principle of the schoolyard. It’s also a basic principle of antidiscrimination law.
Consider the Supreme Court’s 1982 ruling in Connecticut v. Teal. African American plaintiffs sued their state employer for using a promotion eligibility exam that had a disparate racial impact. The state defended on the ground that in light of decisions made at the discretionary stage that favored African Americans who passed the test over whites who passed, there was no “bottom line” discrimination and thus no claim available for the plaintiffs who failed it. The Court rejected the argument on the ground that antidiscrimination law protects individuals, not groups. An employer cannot make up for disadvantaging some members of a group based on race by advantaging other members of the group based on race.
Teal was a statutory case under Title VII rather than an equal protection case, but that distinction only makes the two-wrongs-don’t-make-a-right principle stronger in a case like Flowers. Four justices dissented in Teal, because they thought that the kind of disparate impact claim allowed by Title VII but not under the Equal Protection Clause necessarily called for an aggregate approach. Speaking for the dissenters, Justice Lewis Powell wrote that “while disparate treatment cases focus on the way in which an individual has been treated, disparate impact cases are concerned with the protected group.” In other words, the dissenters—and thus all nine justices in Teal—fully endorsed the view that there can be no “bottom line” defense in disparate treatment cases. And Flowers is a disparate treatment case.
Indeed, the notion that a McCollum violation by a defense attorney could somehow “cancel out” a Batson violation by a prosecutor should be especially odious to Justice Thomas, because he is one of the Court’s most ardent critics of race-based affirmative action. In affirmative action cases, Justice Thomas and his conservative colleagues consistently reject the proposition that discriminating against one racial group counts as a permissible means of remedying discrimination against another racial group. As Chief Justice Roberts wrote in an opinion joined by Justice Thomas in a 2007 case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
One can legitimately criticize this so-called color-blind approach to equal protection cases, but notably, Justice Thomas enthusiastically promotes color blindness. To the extent that his question to Professor Johnson suggested that discrimination against one group can cancel out discrimination against another, it contradicted his core beliefs.