Bloomberg Law
April 18, 2022, 2:12 PMUpdated: April 18, 2022, 4:16 PM

Divided Supreme Court Denies Appeal Over Race, Death Penalty (1)

Jordan S. Rubin
Jordan S. Rubin

The U.S. Supreme Court rejected a Black death-row inmate’s appeal despite one of his Texas jurors believing non-whites are more dangerous than whites.

In the latest 6-3 capital-punishment split, the three Democratic appointees said in dissent on Monday that the court should have sent the case back to Texas for “proper consideration” of the issue that wasn’t considered on the merits.

The Court of Criminal Appeals of Texas denied the defendant “any meaningful review of his federal constitutional claim,” Justice Sonia Sotomayor wrote, joined by Justices Stephen Breyer and Elena Kagan.

The denial underscores the difficulties capital defendants face at the high court dominated by Republican appointees.

In 2018, Kristopher Love was convicted of killing Kendra Hatcher in a 2015 murder-for-hire plot. One of the jurors who voted to sentence Love to death said during jury selection that he believed non-whites are more violent than whites. In deciding whether to vote for death, Texas juries consider whether defendants will be violent in the future.

During jury selection, each side is given a limited number of peremptory strikes, but a judge can also strike a juror for cause. The trial judge denied Love’s attempt to strike the juror for cause. The Texas appeals court said any error was harmless because Love was given two extra peremptory strikes earlier in jury selection, which he used before the juror at issue was questioned.

“An already-expended peremptory strike is no cure for the seating of an allegedly biased juror,” Sotomayor wrote, calling the state ruling “plainly erroneous.”

Racial bias infecting a capital case “deprives a defendant of his right to an impartial tribunal in a life-or-death context” and poisons public confidence in the judicial process, Sotomayor wrote. “The seating of a racially biased juror, therefore, can never be harmless.”

Opposing U.S. high court review, Texas officials said the justices lacked jurisdiction because the state appeals court ruled against Love on state-law grounds. “In any event, the record does not support Love’s claim that a racially prejudiced juror was seated on his jury,” the state’s opposition brief said.

Sotomayor’s dissent cited the high court’s 2016 decision in Buck v. Davis, where the court ruled for a Black man whose Texas jury was told Black people are more dangerous.

“Our law punishes people for what they do, not who they are,” Chief Justice John Roberts wrote for the court in Buck, joined by now-retired Justice Anthony Kennedy and the late Ruth Bader Ginsburg as well as Monday’s dissenters. Kennedy and Ginsburg were replaced by Justices Brett Kavanaugh and Amy Coney Barett, who are both more likely than their predecessors to side with the government in capital cases.

In 2019’s Flowers v. Mississippi, the Supreme Court ruled for a Black man whose prosecutor serially struck Black jurors over the course of six trials. Writing for the seven-justice majority in Flowers, Kavanaugh emphasized that “we break no new legal ground,” pointing to “the extraordinary facts of this case.”

The case is Love v. Texas, U.S., No. 21-5050.

(Adds opinion detail and reporting on Texas system, jury selection. )

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Tom P. Taylor at; Seth Stern at; John Crawley at