Racial Justice in Jury Selection, SCOTUS takes it on . . . again.
On November 2, 2015, the United States Supreme Court is scheduled to hear oral arguments in Foster v. Chatman, 14-8349, which will be the first time SCOTUS has revisited the Batson v. Kentucky line of cases since its last decision in Snyder v. Louisiana, 552 U.S. 472 (2008). Membership on the Court has changed in the interim—replacing Souter and Stevens are Sotomayor and Kagan, respectively. Snyder always seemed to me to be a straight ahead application of the comparative juror rule that we also see in Miller-El v. Dretke, 545 U.S. 231 (2005). Foster promises to be interesting for a number of reasons (I hope). First, it’s coming up on direct review (and not after habeas proceedings have concluded) which means the Court will not be constrained (strangled?) by the legal albatross that is AEDPA. But also, the record on appeal includes a number of documents secured by state habeas counsel by way of an open records request that show that the prosecutors were acutely race-conscious in their jury selection as evidenced by their actual notes. These notes, it appears, tell a different story than the one they told the judge when asked to place their “race-neutral” reasons for their strikes on the record at trial. Hopefully the Court will tackle head-on what we all know to be the fiction of “race-neutral” peremptory challenges in the criminal justice system. Foster’s attorney is absolutely one of the best—Stephen Bright of the Southern Center for Human Rights out of Atlanta, Georgia. It’s hard to imagine that the Court would have taken up this case, and in this posture, except that it intends to do something very important. All that’s completely speculative tea-leaf reading, of course . . . but with all of the criminal justice issues percolating in the country right now, this is an excellent opportunity for the Court to affirm its commitment to color-blind justice.