Three Republican-appointed Supreme Court justices just openly sided with racism

Ever since Republicans stole a Supreme Court seat from President Obama, the court has remained at an unproductive equilibrium of 4-4 decisions, occasionally broken up by frequent swing Justice Anthony Kennedy. If Donald Trump remains in office, however, the United States faces the prospect of a conservative majority on the Supreme Court, and a Supreme Court decision this week chillingly illustrates what that could look like.

In the case of Peña-Rodriguez v. Colorado, the Court ruled that juror testimony about racial bias among one or more jurors can be considered in deciding whether to impeach a verdict. The defendant, Miguel Peña-Rodriguez, was seeking a new trial because two jurors revealed that another juror — a former law enforcement officer — had said, during deliberations, “I think he did it because he’s Mexican, and Mexican men take whatever they want,” and that “nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls.”

The majority opinion in the case, authored by Kennedy, ruled in favor of the defendant and held that testimony about racial bias by jurors could be considered in contravention of Colorado’s “no impeachment” rule. Kennedy’s opinion noted the following:

Racial bias, unlike the behavior in McDonald, Tanner, or Warger, implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice. It is also distinct in a pragmatic sense, for the Tanner safeguards may be less effective in rooting out racial bias. But while all forms of improper bias pose challenges to the trial process, there is a sound basis to treat racial bias with added precaution. A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after a verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.

Kennedy’s opinion also made clear that this ruling is not a get-out-of-jail-free card, noting that “Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar,” and adding, “For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.”

Justice Samuel Alito wrote the dissenting opinion, which was joined by Justice Clarence Thomas and Chief Justice John Roberts. The gist of their argument relied predictably on precedent, flawed slippery-slope logic, and a desire not to intrude on the privacy of the deliberation process, to which they gave more weight than protecting Americans from systemic racism.

But one can really get a feel for how a majority-conservative court would think about an issue like this through this especially telling passage, in which Alito likens racial discrimination to a sports rivalry:

Imagine two cellmates serving lengthy prison terms. Both were convicted for homicides committed in unrelated barroom fights. At the trial of the first prisoner, a juror, during deliberations, expressed animosity toward the defendant because of his race. At the trial of the second prisoner, a juror, during deliberations, expressed animosity toward the defendant because he was wearing the jersey of a hated football team. In both cases, jurors come forward after the trial and reveal what the biased juror said in the jury room. The Court would say to the first prisoner: “You are entitled to introduce the jurors’ testimony, because racial bias is damaging to our society.” To the second, the Court would say: “Even if you did not have an impartial jury, you must stay in prison because sports rivalries are not a major societal issue.”

Alito’s example does more to illustrate the uniquely pernicious effects of racial bias than it does to support his own dissent. In both Alito’s dissent and Thomas’ concurrence with it, the conservative justices favor non-constitutional precedents that were established during slavery and Jim Crow over the constitutional right to an impartial jury and equal protection under the law.

If and when the Senate considers a Republican president’s nominee for the Supreme Court, Democrats must consider the logical machinations that these three justices used in order to protect racism in jury verdicts, and adjust their questioning accordingly.

Additionally, voters should consider those thought processes, and the fact that Justices are given lifetime appointments by elected officials, the next time they head to the ballot box.