If the rapid-fire release of 11 Supreme Court decisions issued in just over one week in June is indicative of a consensus among the evenly divided members, the many political and legal pundits have needlessly envisaged over the fear of a divided court. As the New York Times reports “the court’s most conservative members — Justices Clarence Thomas and Samuel A. Alito Jr. — wrote eight concurrences or dissents and its two most liberal members — Justices Ruth Bader Ginsburg and Sonia Sotomayor — wrote four.”

The Justice that wrote the most dissenting opinions was Clarence Thomas, the Bush nominee who instantly became controversial: The NAACP, Urban League, and the National Bar Association all took umbrage over his nomination. Feminists feared he would vote for cases that restricted or even banned abortions. He had petite experience as a judge– two years on the federal bench– and critics feared his mostly empty judicial slate.

The concerns that these people and others had were not far fetched—Thomas turned out to be worse, for civil rights and due process advocates, than anyone could have envisioned. A classic snippet from Thomas’s neurons is unveiled in a case that concerned prosecutors’ exclusion of all black potential jurors from the trial of a black defendant facing the death penalty. The Times reports “Chief Justice Roberts, writing for the majority, said a prosecutor’s explanation for striking a potential black juror was “nonsense.” But it was good enough for Justice Thomas, the member of the court least interested in consensus.” The issue before the court was whether the prosecutor’s use of peremptory strikes violated the holdings in Batson v. Kentucky that such strikes could not be based upon intentional racial motivation.

Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State exercised peremptory strikes against all four black prospective jurors qualified to serve.

The high court summarized the facts of the case like this: “On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White’s possessions were recovered from Foster’s home and from Foster’s two sisters.”

The State indicted Foster on charges of malice murder and burglary. He was convicted at trial and given the death penalty.

During the jury selection process there were five prospective black jurors, one was released for cause, and the other four were struck by the prosecutor. Long after the conviction, appellate lawyers were able to obtain evidence that the following procedures and acts were completed by the prosecutors in the case:

  1.   On the jury venire list, the names of the black prospective jurors were highlighted in bright green;
  2.   A legend on the sheet indicated that green highlighting represents “blacks”.
  3.   Internal prosecutor notes or testimony stated, “If it comes down to having to pick one of the black jurors, [this one] might be okay. This is solely my opinion. . . . Upon picking of the jury after listening to all of the jurors we had to pick, if we had to pick a black juror I recommend that [this juror] be one of the jurors.”
  4.  A handwritten document titled “definite NO’s,” listing six names. The first five were those of the five qualified black prospective jurors.
  5. A handwritten document titled “Church of Christ.” A notation on the document read: “NO. No Black Church.” The questionnaires that had been completed by several of the black prospective jurors. On each one, the juror’s response indicating his or her race had been circled.

In other words, the discriminatory and racial motivation of the prosecutors was crystal clear to the members of the Supreme Court– but not Justice Thomas. He wrote in a dissenting opinion:

. “Thirty years ago, Timothy Foster confessed to murdering Queen Madge White after sexually assaulting her with a bottle of salad dressing. In the decades since, Foster has sought to vacate his conviction and death sentence on the ground that prosecutors violated Batson v. Kentucky, 476 U. S. 79 (1986), when they struck all black prospective jurors before his trial. Time and again, the state courts have rejected that claim. The trial court twice rejected it, and the Supreme Court of Georgia unequivocally rejected it when Foster directly appealed his conviction and sentence. (citations omitted) And most recently, the Supreme Court of Georgia again rejected it as lacking “arguable merit,” Yet, today—nearly three decades removed from voir dire—the Court rules in Foster’s favor. It does so without adequately grappling with the possibility that we lack jurisdiction. Moreover, the Court’s ruling on the merits, based, in part, on new evidence that Foster procured decades after his conviction, distorts the deferential Batson inquiry. I respectfully dissent.

Who would have thought that Thomas could boot the boat by such wide margins? The aforementioned groups were right to fear his appointment. 



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