The Supreme Court just undid the work of a prosecutor whose astounding incompetence was matched only by his racism. This prosecutor somehow managed to try Curtis Flowers, an African American man from Mississippi, six times for the same murders — and he botched every single trial.

The upshot of the Supreme Court’s 7-2 decision in Flowers v. Mississippi is that Mr. Flowers will need to be tried again — this time because of the prosecutor’s long record of excluding jurors because they are black. Even Justice Samuel Alito, who is normally a free space for prosecutors playing Supreme Court bingo, joined Brett Kavanaugh’s majority opinion tossing out Flowers’ conviction. (Alito did write separately to note that this is “a highly unusual case” that is “likely one of a kind.”)

There are few surprises in Kavanaugh’s opinion — sometimes easy cases make for easy decisions. One surprise is that two members of the court, Justice Clarence Thomas and Neil Gorsuch, dissented.

Perhaps most strikingly, however, was the nature of Thomas’s dissent, which went so far as to suggest that prosecutors should be free to remove jurors because of their race.


The case involves “peremptory challenges,” which allow both prosecutors and defense attorneys to remove jurors for nearly any reason. As Kavanaugh explains in his opinion, “the Constitution forbids striking even a single prospective juror for a discriminatory purpose.”

Over the course of six trials, “the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck.” In the most recent trial, the prosecution appears to have accepted a single black juror in an effort to create the impression that it wasn’t targeting jurors because of their race — and then it proceeded to remove five more. It also grilled black potential jurors in an apparent effort to find reasons to strike them, while largely letting white jurors go by without much probing.

“The State asked the five black prospective jurors who were struck a total of 145 questions,” Kavanaugh notes. “By contrast, the State asked the 11 seated white jurors a total of 12 questions. ”

So Flowers is a victory for racial justice. It is also a testament to just how parsimoniously this conservative Supreme Court deals out justice when it is forced to admit that racism still exists. Though Kavanaugh points to four facts that, combined, justify vacating Flowers’ conviction, he goes to great pains to note that “we need not and do not decide that any one of those four facts alone would require reversal.” He also emphasizes that “we break no new legal ground” in Flowers.

Yet even this slight helping of racial equity was too much for Thomas. Thomas spends the bulk of his opinion disagreeing with Kavanaugh’s factual conclusions — and these parts of his opinion are joined by Gorsuch. He then spends the final eight pages of his dissent arguing that racial jury discrimination should effectively be legalized. Not even Gorsuch was willing to endorse that view.


As Thomas notes, there are some virtues to peremptory challenges. Among other things, they “eliminate extremes of partiality on both sides.” Yet, in the hands of a racist prosecutor, they become a weapon that can be directed entirely against jurors of a particular race.

The seminal Supreme Court opinion prohibiting lawyers from using these challenges to engage in race discrimination Batson v. Kentucky. Thomas’ dissent goes to war with Batson — which, in Thomas’ words “requires that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on the jury.”

Thomas sees a prosecutor’s racist decision to exclude a juror as an injury to that juror — and not a broader attack on the fairness of the entire trial. Because the Constitution does not permit individuals to seek relief from a federal court unless they’ve been somehow injured, a requirement known as “standing,” Thomas claims that criminal defendants “should not have standing to assert the excluded juror’s claim.”

As a practical matter, that means that virtually no one would ever challenge racist juror exclusions, since the juror is unlikely to care enough about the outcome of a trial to sue because they were kicked off a jury. And, in any event, Thomas argues that excluded jurors should not be able to challenge other people’s convictions. So Thomas’ would neutralize Batson altogether.

More than that, however, Thomas disagrees with the entire project of Batson. “The ‘entire line of cases following Batson,‘” he writes, is “a misguided effort to remedy a general societal wrong by using the Constitution to regulate the traditionally discretionary exercise of peremptory challenges.”