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Thomas Asks Rare Questions About Race in Jury Selection (4)

March 20, 2019, 3:27 PMUpdated: March 20, 2019, 8:45 PM

Justice Clarence Thomas asked his first questions in years at oral argument in a case about racism in jury selection at the U.S. Supreme Court.

The hour-long session was drawing to a close March 20 in the case where defendant Curtis Flowers appeared to be winning his argument that the prosecutor in his case unlawfully discriminated against prospective black jurors by improperly blocking them from sitting on the jury.

Each side in a prosecution gets a number of “peremptory strikes” that they can use to block jurors from sitting on a case, but the Supreme Court has ruled that lawyers can’t strike jurors for racist reasons.

“Would you be kind enough to tell me whether or not you exercised any peremptories?” Thomas asked Flowers’ lawyer, Sheri Lynn Johnson of Cornell Law School.

Johnson said she wasn’t the trial lawyer but that the trial lawyer did.

“And what was the race of the jurors struck there?” Thomas followed up.

“She only exercised peremptories against white jurors,” Johnson replied, referring to the trial lawyer.

“But I would add that the motive—her motivation is not the question here,” Johnson added.

“The question is the motivation of Doug Evans,” she said, referring to the local Mississippi prosecutor who tried Flowers six times for the same crime.

While it was surprising that Thomas asked questions, they’re unlikely to affect the outcome of the case. That’s because the rest of the justices’ questions before Thomas spoke up indicated that a majority is poised to rule for Flowers. The question is how broadly.

Thomas, 70, a member of the court since 1991, has said he thinks his colleagues ask too many questions during court sessions. He once went 10 years without speaking at an argument.

The court’s only black justice, he intervenes most commonly during cases involving race, including a 2003 argument over university affirmative action and a 2002 clash about cross burning.

His last questions came on Feb. 29, 2016, when he asked almost a dozen of them in a case over a federal law that bars firearm possession by people convicted of misdemeanor domestic violence.

Tried Six Times

Flowers was tried by Evans six times in Mississippi over decades for the same 1996 murders. The first five trials resulted in hung juries or convictions that got overturned due to Evans’ misconduct, including improper racial discrimination in jury selection.

Facing execution, Flowers argues that Evans violated high court precedent by serially blocking blacks from sitting on his juries.

He wants the justices to take a holistic view of Evans’ jury selection conduct, rather than just focus on the most recent trial in 2010, where a nearly all-white jury sentenced Flowers to death.

Nearly all of the justices and lawyers at the argument conceded that the case had troubling facts. Notably even the state’s lawyer, Jason Davis, conceded that a prosecutor’s history can be relevant to the inquiry. Yet he maintained that Evans’ strikes were nonetheless on solid footing here and that the prosecutor offered sufficient race-neutral reasons for the strikes.

While a majority of the court is unlikely to side with Davis’ view, the lingering question from the argument might not be whether Flowers will win, but how much the justices will say about jury discrimination for future cases.

Chief Justice John G. Roberts Jr. asked Johnson what rule she was asking the court to announce in the case—what limits there are to considering a prosecutors’ past discriminatory strikes. Justice Neil M. Gorsuch was curious about that point as well.

Justice Brett M. Kavanaugh, who, as a law student, wrote an article advocating robust protections for defendants during jury selection, appeared to feel the same way at the argument, with his questions suggesting he thinks a history of discrimination should be taken into account.

Kavanaugh noted that the Supreme Court’s landmark decision on discrimination in jury selection, Batson v. Kentucky, dealt with confidence of the community and the fairness of the criminal justice system. He challenged Davis on this point, asking the special assistant attorney general, “Can you say, as you sit here today, confidently you have confidence in the—how this all transpired in this case?”

Davis said he could.

A decision is expected by late June.

The case is Flowers v. Mississippi, U.S., 17-9572, 3/20/19.

(Updates both snapshots and includes new edits to paragraph 14.)

To contact the reporter on this story: Jordan S. Rubin (Bloomberg Law) in Washington at; Greg Stohr (Bloomberg) in Washington at
To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at