Supreme Court's Curtis Flowers decision is a blow to racial discrimination. It's also a warning.

It's good that the majority of justices concluded Flowers’ criminal trial was infected by racial discrimination. But not everyone is so lucky.
FLOWERS
Curtis Flowers at his third capital murder trial on Feb. 6, 2004, in Winona, Mississippi. Flowers was being tried for the 1996 robbery and shooting deaths of four furniture store workers. Dale Gerstenslager / Winona Times via AP file
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By Leah Litman, assistant professor of law at the University of Michigan Law School

In Flowers v. Mississippi, the Supreme Court took the welcome step of addressing racial discrimination in the criminal justice system by overturning the murder conviction of death-row inmate Curtis Flowers. The prosecutor in Flowers’ case had prevented some people from serving on the jury because they were black. But while the result in Flowers is laudable, the decision underscores just how impossibly high the bar is for courts to declare that racial discrimination has occurred, and how many victims of racial discrimination receive no remedy at all.

The evidence of racial discrimination at Flowers’ trial was overwhelming. The state tried him six times for the 1996 execution-style murders of four furniture store employees in Winona, Miss. The case was tried so many times because the prosecutor repeatedly removed prospective jurors from serving on the jury because they were black.

At trial, both the prosecution and the defense have the opportunity to use what are called peremptory strikes to remove individuals from serving on the jury. At the first and second trials, District Attorney Doug Evans used peremptory strikes to remove all of the potential black jurors from serving. The state courts then found that the prosecutor had used peremptory strikes to discriminate on the basis of race.

While the result in Flowers is laudable, the decision underscores just how impossibly high the bar is for courts to declare racial discrimination occurred.

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Not to be deterred, Evans used all of his peremptory strikes to remove potential black jurors at Flowers’ third and fourth trials. The state courts also overturned those convictions, again because the courts concluded that the prosecutor had used peremptory strikes in a racially discriminatory way.

The same prosecutor then tried Flowers again. This time, he allowed one black juror to serve on the jury before striking the other potential black jurors — all five of them. Over the course of six trials, the prosecutor struck 41 of 43 potential black jurors. And at the last trial, the prosecutor asked the prospective jurors who were black an average of 29 questions, whereas he asked the prospective jurors who were white only one question.

The evidence of racial discrimination in Flowers’ case included this powerful statistical evidence and a long history of racial discrimination at Flowers’ trials. It should be obvious that most cases do not involve this kind of evidence.

But that doesn’t mean that other trials are not infected by racial discrimination. Far from it. Race discrimination occurs even when government decision-makers do not broadcast their discriminatory motives for everyone to see. But the modern court has been hesitant to find racial discrimination in cases where government decision-makers know enough to hide their true purposes.

For example, last term in Abbott v. Perez, the court concluded that Texas did not discriminate on the basis of race when it drew legislative districts that diluted the power of minority voters. As Justice Sonia Sotomayor noted in her dissent, there was a wealth of circumstantial evidence of racial discrimination, including that minority members of the Texas Legislature were “excluded completely from the process of drafting new maps, while the preferences of [white] members were frequently solicited and honored.”

Even when plaintiffs have direct evidence of racial discrimination, like Flowers’ did, the court has found ways to let the government get away with discrimination. Consider the travel ban case from the previous Supreme Court term. In that case, the court upheld President Donald Trump’s ban on entry of people from several Muslim majority countries. As a candidate, Trump had promised a complete and total shutdown of Muslims entering the United States, which provided direct evidence of his discriminatory purpose. Soon after he entered office, he suspended entry from several Muslim majority countries while allowing religious minorities from those countries to enter the United States, all without consulting any relevant agencies. The president’s initial entry ban discriminated, on its face, on the basis of religion. And indeed, after signing the entry ban, the president continued to make derogatory statements about Muslims and Islam.

Even when plaintiffs have direct evidence of racial discrimination, like Flowers’ did, the court has found ways to let the government get away with discrimination.

The Supreme Court ultimately upheld a revised version of the president’s entry ban even though there was direct evidence of the president’s animus toward Muslims and even though the ban emerged from a process that was infected with racial discrimination. The court said it had to uphold the entry ban because the ban could reasonably be understood to have a legitimate purpose even if it did not actually have a legitimate purpose. That kind of deference is appropriate, the court reasoned, because of the president’s powers over immigration and national security.

And the court appears poised to turn a blind eye again to discrimination in the case of the Trump administration’s addition of the citizenship question to the 2020 census. In that case, which is expected to be decided any day now, the plaintiffs produced volumes of evidence indicating that the administration wanted to add the citizenship question in order to depress response rates among Democrats and racial minorities and advantage “Republicans and non-Hispanic whites.” Yet at oral arguments, the five conservative justices suggested that courts should not second-guess the Commerce Department’s rationale for adding the question about citizenship.

The court has also made it increasingly difficult to prove racial discrimination in criminal cases where, unlike in the Flowers’ case, the discrimination occurred at the arrest stage, rather than the trial. The court has made it so that a criminal defendant cannot prove that his arrest was the product of racial discrimination if the arresting officer reasonably suspected that the defendant committed a crime —even if the crime is a minor traffic infraction. Given the breath of criminal law, that makes it almost impossible for defendants to prove they were discriminated against because of their race.

It is a good thing that the court concluded Flowers’ criminal trial was infected by racial discrimination. But the decision should also serve as a reminder of the many other victims of racial discrimination who will find they have no recourse before the current court.