The Supreme Court began this week by correcting an injustice. A local prosecutor in Mississippi tried and convicted Curtis Flowers six times for allegedly murdering four people at a furniture store in 1996. Two of those trials ended in hung juries; courts tossed out three of the convictions for prosecutorial misconduct or racial discrimination in jury selection. The Mississippi Supreme Court upheld the sixth conviction of Flowers, who is black, because the prosecutor let a single black person onto the jury after striking all other potential African Americans.



Writing for the majority, Justice Brett Kavanaugh found that the Mississippi high court had misapplied Batson v. Kentucky, the 1987 case that banned racial discrimination in jury selection. He cited numerous instances where the prosecutor questioned black jurors far more intensely than white jurors to find reasons to exclude them. The 7–2 decision transcended the usual ideological lines. Justice Samuel Alito, who rarely sides with criminal defendants, wrote separately that the “totality of the circumstances” meant that Flowers’s conviction “cannot stand.”

Only two justices disagreed. Justice Clarence Thomas, joined by Justice Neil Gorsuch, wrote that the court had misapplied Batson and distorted the facts of the case. Then he took aim at Batson itself. To Thomas, the 1987 case “requires that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on the jury.” He wrote that he favored returning the court to “to our pre-Batson understanding” of racial bias in jury selection, which he wrote would be more effective at fighting prejudice. (Gorsuch did not join this part of the dissent.)

It’s been a busy term for Thomas, who is always one of the court’s most prolific writers. His concurring opinions and dissents have long offered an unorthodox view of the court’s precedents and practices that set him apart from his colleagues. As the court’s conservative bloc reasserts itself after Anthony Kennedy’s retirement, Thomas is reasserting his constitutional vision as well—one that points toward a society that’s radically different than the one experienced today.



Since joining the court in 1991, Thomas has never shied away from identifying the precedents with which he takes issue. But the 2018–2019 term stands apart for the magnitude of his calls. In February, the court declined to hear McKee v. Cosby, a defamation case brought against Bill Cosby by Katherine McKee, who accused him of rape in 2014. The dispute turned on whether McKee’s decision to come forward made her a “limited-purpose public figure,” which would make it harder to prove Cosby had defamed her. Thomas agreed with his colleagues’ decision not to take up the case, but wrote a concurring opinion to call upon them to reconsider the 1964 decision New York Times Co. v. Sullivan, which is the touchstone of modern American libel law.