On Monday, the Supreme Court turned away an appeal from a Black man named Kristopher Love, whose death sentence was tainted by a juror’s racism. By a 6–3 vote, the conservative majority refused to enforce precedents protecting capital defendants from racial bias, saving itself the trouble of formally overruling them. Once again, the Supreme Court exercised its power to change the law by doing nothing, furthering its quest to subvert the normal operation of law and speed up executions in America.
Racism pervades every aspect of the death penalty, but it’s not often as obvious as it was at Love’s 2018 trial. Love’s attorneys asked prospective jurors whether they believe that some races “tend to be more violent than others” in an attempt to smoke out illicit bias. One juror, Zachary Niesman—who is white—answered “yes,” elaborating: “Statistics show more violent crimes are committed by certain races. I believe in statistics.”
During voir dire, Niesman doubled down on his beliefs. He told Love’s defense attorneys as well as the state prosecutors that he belived the “non-white” races to be the “more violent races.” He claimed that “news reports and criminology classes” bore this out, but added that his views were based on “statistics,” not “personal feelings towards one race or another.” Niesman then insisted that he would be a fair and impartial juror with no bias against Love on account of his race.
In Texas, defendants become eligible for capital punishment only after a jury has concluded that they’re likely to “commit criminal acts of violence” in the future. Niesman’s belief that Love was a member of the “more violent races” therefore posed an obvious danger: As a juror, he might take Love’s race into account when gauging his violent propensities, infecting the death sentence with an odious racial stereotype.
Love’s attorney moved to strike Niesman from the jury “for cause”—because of his bias—but the trial judge denied the challenge without explanation. The defense attorney then sought to use a peremptory challenge, which allows the exclusion of a prospective juror without any specific reason. But he had already used up his allotted peremptory challenges, as well as two extras that the trial judge had granted. The judge seated Niesman on the jury, which found Love guilty and likely to commit violent crime in the future. This finding rendered him eligible for the death penalty, which the judge imposed.
On appeal, Love argued that his sentence violated the constitutional right to a trial by an impartial jury because one juror was “racially biased.” The all-Republican Texas Court of Criminal Appeals ruled against him in a baffling decision. Writing for the court, Justice Mary Lou Keel reasoned that even if the trial judge should have struck Niesman for cause, his failure to do so was “harmless.” Why? The judge had already given Love two extra peremptory challenges. And despite the fact that his lawyer had used both additional challenges before questioning Niesman, their existence somehow rectified any potential error.
As Justice Sonia Sotomayor pointed out on Monday, this decision is nonsensical from top to bottom. “An already-expended peremptory strike,” she wrote with palpable frustration, “is no cure for the seating of an allegedly biased juror.” The Texas courts “deprived Love of any meaningful review of his federal constitutional claim” by deploying a non sequitur. Yet only Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, voted to force the Texas Court of Criminal Appeals to reexamine Love’s case and rule on his constitutional objections. The Republican-appointed justices let the injustice stand.
In doing so, they blessed the lower courts’ defiance of precedent stretching back decades that prohibits jury bias by safeguarding a defendant’s ability to question and strike a biased juror. This constitutional right applies with special force against racial bias, which the Supreme Court has identified as a uniquely odious threat to “the administration of justice.” Nowhere is this threat to justice more pronounced than in capital trials, when the defendant’s life is on the line. As a result, the seating of a racist juror in a capital trial can never be “harmless,” as the Texas Court of Criminal Appeals suggested; instead, it renders any judgment constitutionally unsound.
The Supreme Court has reaffirmed that no amount of racism in the jury box is ever acceptable in a criminal trial as recently as 2017’s Peña-Rodriguez v. Colorado. Like Niesman, the biased juror in Peña-Rodriguez believed that racial minorities were more prone to violence. Like Niesman, the juror’s bias may well have played a role in his decision to convict the defendant, who was Latino. But the Supreme Court looked very different in 2017; back then, a five-justice majority embraced its duty to “enforce the Constitution’s guarantee against state-sponsored racial discrimination in the jury system.”
To do so, the court created an exception to state laws that prohibit a verdict from being questioned on the basis of comments made during deliberation. When a juror comes forward with evidence of racism in deliberations, the court held, a state’s interest in the finality of verdicts must yield to the constitutional bar against “racial animus in the justice system.”
Under precedents like Peña-Rodriguez, Love’s appeal should have presented an easy case. At a minimum, Sotomayor wrote, the lower court should have “meaningfully reviewed Love’s allegations of racial bias” rather than shrugging it off. But the Supreme Court has shifted far to the right over the last five years. It is apparent that six justices do not much care for precedents protecting criminal defendants from racist jurors, particularly in capital cases. After all, these same justices paved the way for the Trump administration’s eleventh hour execution spree.
To ensure that Donald Trump could execute as many people as possible before Joe Biden entered office, the conservative majority ignored or flouted federal law, often breaking the court’s own rules in the process. They are certain that death row lawyers are using guerrilla tactics to delay executions and are increasingly willing to rewrite law on the fly in a bid to thwart them.
What is the easiest way to rewrite the law? Simply stop enforcing it. That’s what the Texas Court of Criminal Appeals did in swatting down Love’s claim, and it’s what SCOTUS did on Monday by blessing the lower court’s defiance of precedent. Overturning past rulings requires reasoning and fortitude. It’s much easier to let precedent die without saying a word.