The Supreme Court Just Sent a Strong Message About Racism in the Justice System

In a 7-1 opinion, the court grants a new trial for a black death row inmate convicted by an all-white jury.

Chief Justice John Roberts Jr. at the State of the Union address, 2016Evan Vucci/AP

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


“Nonsense.” That’s how Chief Justice John Roberts Jr. described the contention that Georgia prosecutors had not been motivated by race when they weeded out every potential black juror from a 1987 death penalty trial. Roberts penned the majority opinion in Foster v. Chatman, which reversed a decision by the Georgia Supreme Court that overlooked new evidence of racial discrimination in the trial of Timothy Foster, an African American man, which was a factor leading to his death sentence by an all-white jury.

The case had been pending in the high court for an unusually long time, after being argued in November, suggesting that the justices were torn over how to decide it, particularly after the death of Justice Antonin Scalia. But in the end, the eight-member court ruled 7-1 that Georgia prosecutors had unconstitutionally rejected jurors from Foster’s trial based on their race. The lone dissenter was the court’s only African American justice, Clarence Thomas, who sided firmly with state of Georgia.

The case had presented stark evidence of the kind of racial discrimination that pervades the criminal justice system. In 2006, defense lawyers for Foster, who was convicted of murdering a white woman in Butts County, Georgia, pried out of the prosecutors’ office a remarkable file full of documents showing how they had gone about picking a jury for the case.

In notes, prosecutors had highlighted the African Americans on several different lists of potential jurors. On one list, under the heading “Definite NOs,” prosecutors listed six potential jurors, all but one of whom were black. The prosecutors ranked the prospective black jurors in case “it comes down to having to pick one of the black jurors.”

As Foster’s lawyer Stephen Bright said after the decision was released on Monday, “this discrimination became apparent only because we obtained the prosecution’s notes which revealed their intent to discriminate. Usually that does not happen. The practice of discriminating in striking juries continues in courtrooms across the country. Usually courts ignore patterns of race discrimination and accept false reasons for the strikes. Even after the undeniable evidence of discrimination was presented in this case, the Georgia courts ignored it and upheld Foster’s conviction and death sentence.” 

Foster’s 1987 conviction came just months after the US Supreme Court had issued a decision in Batson v. Kentucky that was supposed to ban racial discrimination in jury selection during what are known as “peremptory strikes.” That’s the mechanism for lawyers in a trial to exclude jurors for no reason. Such strikes have been used extensively to keep minority citizens off juries.

Batson, though, has failed to halt the cherry-picking of all-white juries in criminal cases against black men. That’s largely because prosecutors, when challenged, have learned to justify a decision to kick someone off a jury in “race-neutral” terms, and courts have accepted them. Foster was no exception. Notes in the prosecutors’ file indicated that they focused on the race of the jurors from the outset, as Roberts points out in his opinion. They justified excluding black jurors in his case for such nebulous reasons as “failure to make eye contact” or being defiant. (One of the rejected black jurors, Marilyn Garrett, told me last year that if she wasn’t making eye contact or was defiant with the prosecutors while they were questioning her, it was because “they really were nasty to me.” She said the prosecutors had treated her “like I was a criminal.”)

Roberts didn’t buy the prosecutors’ rationale for ejecting two black jurors in particular, and he methodically ripped holes in their arguments before sending the case back to the lower courts for further proceedings. “Two peremptory strikes on the basis of race are two more than the Constitution allows,” he concluded.

The decision is a forceful blow against racism in the courts, and somewhat unusual coming from the same chief justice who has made a name for himself for helping to dismantle the Voting Rights Act and affirmative action. The Foster decision isn’t going to help Roberts’ reputation among tea partiers, including Sen. Ted Cruz (R-Texas), who have decided the former conservative darling of a chief justice has become a liberal traitor.

Tea partiers should be much happier with the lone dissenter in the case, Thomas. As he often does in death penalty cases, he opened his opinion by focusing from the outset on the victim—in this case, 79-year-old Queen Madge White, whom Thomas noted was sexually assaulted by Foster with a bottle of salad dressing. Far from acknowledging the racist motives in the jury selection, Thomas lambasted the majority ruling for perpetuating a criminal justice system in which “finality” means nothing, and any criminal case can be appealed ad nauseam.

His opinion avoids any acknowledgement of the stark failures of the justice system in recent years, injustices that would have largely remained hidden if the courts had taken Thomas’ strict view of unwavering procedural rules that until recently protected prosecutors in Georgia in Foster’s case from any accountability for their racial discrimination.

The decision in Foster won’t put an end to racial discrimination in jury selection. But it is certainly vindication for the potential jurors, including Marilyn Garrett, who weren’t allowed to fulfill their civic duty all those years ago because of their race. As for Foster, his future is still in limbo. Monday’s decision entitles him to a new trial, with a jury of his peers that hasn’t been tainted by racial discrimination. But that doesn’t guarantee a different outcome. The new Georgia jury may come to the same conclusion as the old one. But if nothing else, his date with the death chamber has likely been put off for many years to come. In the world of death penalty litigation, that counts as a win.

WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We can’t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

The upshot: Being able to rally $253,000 in donations over these next few weeks is vitally important simply because it is the number that keeps us right on track, helping make sure we don't end up with a bigger gap than can be filled again, helping us avoid any significant (and knowable) cash-flow crunches for now. We used to be more nonchalant about coming up short this time of year, thinking we can make it by the time June rolls around. Not anymore.

Because the in-depth journalism on underreported beats and unique perspectives on the daily news you turn to Mother Jones for is only possible because readers fund us. Corporations and powerful people with deep pockets will never sustain the type of journalism we exist to do. The only investors who won’t let independent, investigative journalism down are the people who actually care about its future—you.

And we need readers to show up for us big time—again.

Getting just 10 percent of the people who care enough about our work to be reading this blurb to part with a few bucks would be utterly transformative for us, and that's very much what we need to keep charging hard in this financially uncertain, high-stakes year.

If you can right now, please support the journalism you get from Mother Jones with a donation at whatever amount works for you. And please do it now, before you move on to whatever you're about to do next and think maybe you'll get to it later, because every gift matters and we really need to see a strong response if we're going to raise the $253,000 we need in less than three weeks.

payment methods

WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We can’t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

The upshot: Being able to rally $253,000 in donations over these next few weeks is vitally important simply because it is the number that keeps us right on track, helping make sure we don't end up with a bigger gap than can be filled again, helping us avoid any significant (and knowable) cash-flow crunches for now. We used to be more nonchalant about coming up short this time of year, thinking we can make it by the time June rolls around. Not anymore.

Because the in-depth journalism on underreported beats and unique perspectives on the daily news you turn to Mother Jones for is only possible because readers fund us. Corporations and powerful people with deep pockets will never sustain the type of journalism we exist to do. The only investors who won’t let independent, investigative journalism down are the people who actually care about its future—you.

And we need readers to show up for us big time—again.

Getting just 10 percent of the people who care enough about our work to be reading this blurb to part with a few bucks would be utterly transformative for us, and that's very much what we need to keep charging hard in this financially uncertain, high-stakes year.

If you can right now, please support the journalism you get from Mother Jones with a donation at whatever amount works for you. And please do it now, before you move on to whatever you're about to do next and think maybe you'll get to it later, because every gift matters and we really need to see a strong response if we're going to raise the $253,000 we need in less than three weeks.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate