On Tuesday night, the U.S. Supreme Court blocked Georgia’s execution of Keith Tharpe, a black man who was sentenced to death by a jury that was tainted by egregious racism. One juror referred to Tharpe as a “nigger” and questioned “if black people even have souls,” raising grave doubts about the constitutionality of Tharpe’s sentence. While six justices voted to halt the execution, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch voted to let Georgia proceed. Gorsuch’s vote provides the clearest evidence yet that the justice’s professed belief in racial equality is no more sincere than that of the president who appointed him.
The story is an all-around tragedy. Like many death row inmates, Tharpe experienced violent physical abuse as a child and may be intellectually disabled. In 1990, he was charged with the murder of his sister-in-law; a jury convicted him the next year and sentenced him to death. Tharpe appealed, and in 1998, his lawyers interviewed Barney Gattie, a white juror at Tharpe’s trial. According to his affidavit, Gattie said: “In my experience I have observed that there are two types of black people: 1. Black folks and 2. Niggers. … I felt Tharpe, who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did.” Gattie also declared: “After studying the Bible, I have wondered if black people even have souls.”
At the time, Georgia law prevented Tharpe’s attorneys from using this affidavit to impeach Tharpe’s conviction and sentence. But in March, the Supreme Court ruled in Peña-Rodriguez v. Colorado that the Constitution requires such “no-impeachment” rules give way when there’s compelling evidence that a juror made statements demonstrating racism motivated his or her vote. The Sixth and 14th Amendments guarantee both “an impartial jury” and “equal protection of the laws”; these dual commands, Justice Anthony Kennedy explained, grant defendants the right to challenge their conviction when “grave and serious statements of racial bias” in the jury room come to light.
The decision was a lifeline for Tharpe, and his attorneys asked the Georgia Supreme Court to stay his execution while it was being appealed under Peña-Rodriguez. The court refused, compelling the U.S. Supreme Court to step in and put the execution on hold. Notably, Chief Justice John Roberts—who dissented from Peña-Rodriguez—did not dissent from Tuesday’s stay of execution. Perhaps he has come to agree with Kennedy that “it must become the heritage of our nation to rise above racial classifications that are so inconsistent” with “the equal dignity of all persons.” Or maybe he has simply accepted Peña-Rodriguez as a matter of precedent. Regardless, he appears to have joined Kennedy and the liberals in delaying Tharpe’s lethal injection.
Thomas and Alito also dissented in Peña-Rodriguez, and their votes on Tuesday were no surprise: Both justices have evinced a gruesome commitment to brutality in the face of injustice. But Gorsuch’s vote is somewhat startling. Yes, the justice recently voted to preserve Texas’ racially gerrymandered maps through the 2018 election, ensuring that minorities’ votes will continue to be diluted. At his confirmation hearings, however, Gorsuch endorsed equal protection with striking (if vague) passion:
I think that guarantee, equal protection of the laws guarantee, the 14th Amendment—that it took a Civil War for this country to win—is maybe the most radical guarantee in all of the Constitution and maybe in all of human history. It’s a fantastic thing.
So much for that. Gorsuch may be more eloquent than Donald Trump, but the justice’s support for racial equality as a practical matter now appears to run about as deep as the president’s. It’s sickening to see the newest justice embrace a jurisprudence that excuses white supremacy in the criminal justice system so soon after his paean to equality. If Gorsuch had his way, Keith Tharpe—a victim of egregious racism—would have been put to death on Tuesday without a real opportunity to vindicate his rights under Peña-Rodriguez. That’s not equal protection. It’s just barbarity.