The Passive-Aggressive U.S. Supreme Court

Even in the face of clear precedent, some justices just don’t like it when a convicted petitioner is right on the law.

Andrew Harnik / AP

I sometimes imagine conference at the U.S. Supreme Court as a bit like some holiday dinners I have attended, events dominated by comments like, “Some people think it’s okay to take the last of the gravy,” or “That pie looks so delicious it makes me wish I could eat gluten.” The justices are masters of many rhetorical modes, but some of them do passive aggression especially well.

Those talents were on ripe display Monday, as the Court granted relief to a number of criminal defendants. A clear previous precedent dictated the result in each case. Nonetheless, some of the justices don’t like those precedents, and some of them (I certainly am not the kind of quarrelsome person who would name Justices Samuel Alito and Clarence Thomas) don’t like it when any petitioner who has already been convicted—no matter in how grotesque a prior trial—catches a break.

The marquee case Monday was Foster v. Chatman, a racism-in-jury-selection case to end all such cases. In 1987, Timothy Tyrone Foster, a black man, committed murder during a botched burglary. At his trial in Georgia state court, prosecutors used “peremptory challenges” against all four black potential jurors. Foster’s lawyers objected, citing a Supreme Court cased called Batson v. Kentucky. Under Batson, the use of race in jury selection is a violation of the rights both of the defendant and the juror. When a racial pattern in challenges arises, a defendant may demand a “Batson hearing,” at which the prosecution must be given a chance to explain their reasoning; in Foster’s case, they offered “neutral,” non-race-based explanations for challenging the black jurors, and a Georgia trial court accepted those explanations.

Nineteen years later, Foster’s lawyers used the Georgia Open Records Act of 2012 to inspect the prosecution’s trial notes—and what they found indicated that the “neutral” explanations were a sham. The word “BLACK” on each black juror’s form was circled, and black jurors were marked in green highlighter and coded B1, B2, etc. (In case it wasn’t clear, a side note indicated that the green highlight meant “black.”) One juror was noted as a member of the Church of Christ; an unsigned notation added: “NO. No Black Church.” Another notation read, “If it comes down to having to pick one of the black jurors, [this one] might be okay.”

In the habeas corpus proceeding in a Georgia court, the judge received affidavits and testimony giving the “neutral” explanations for the elimination of the black jurors. That court said the notes did not show “purposeful discrimination,” and anyway the petition was barred by the doctrine of res judicatameaning that an earlier appeal, before the trial notes were discovered, had at least implicitly decided the Batson issue already. The Georgia Supreme Court later affirmed the decision in a one-sentence order containing no legal analysis.

The Court majority on Monday rejected the res judicata argument. The lower court’s decision turned on a federal issue, not one of state law, Roberts wrote; thus the case was before the U.S. Supreme Court. Roberts summed up the prosecution’s multiple “neutral” explanations—one juror was too young, another worked with the mentally ill and thus might be soft-hearted, another said she wasn’t familiar with the scene of the crime but had once lived a few blocks away, and one had a son who had been arrested for stealing hubcaps and thus might be sympathetic to a murderous burglar. Then he offered an assessment:


The notes themselves contradicted the sworn states of the prosecutors. “[T]he focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury,” Roberts wrote.

Foster is probably the most extreme case of race-based jury selection that will ever come in front of the Court. In his statement from the bench Monday, Roberts was careful to note that most defendants will not have access to this kind of evidence; he did not say, but clearly knows, that this will make Foster a precedent of doubtful value going forward.

But considering how flagrant the offense, it is striking that two justices really thought the case had come out wrong. Alito technically “concurred,” but most of his concurrence was devoted to suggesting ways the Georgia courts could reinstate the conviction when they get the case back on remand. For example, neither party had contested jurisdiction, but the Georgia Supreme Court might now claim that its earlier one-sentence decision was actually a silent decision about res judicata. If it was, Alito argued, then that was “independent” state grounds for affirming Foster’s conviction. “I agree with the Court that the totality of the evidence now adduced by Foster is sufficient to make out a Batson violation,” he wrote, but then added: “On remand, the Georgia Supreme Court is bound to accept that evaluation of the federal question, but whether that conclusion justifies relief under state res judicata law is a matter for that court to decide.”

Justice Clarence Thomas went all the way, authoring a solo dissent. He agreed with Alito about the res judicata issue; but he went further, saying that he didn’t see much problem with the “neutral” challenges to the potential jurors, either: “[T]he Court frets that [the prosecution’s] indisputably race-neutral reasons were pretextual … [But] the Supreme Court of Georgia decided the trial court’s findings were worthy of deference.”

Some people (people who wanted to be disagreeable) might say that some justices (never mind which ones) come all undone at the hint of any racial preference in college admissions but seem unperturbed at the idea of a man being strapped to a gurney and killed when prosecutors did everything but hang a sign reading, “THIS JURY FOR WHITES ONLY.”

But saying that would be passive aggressive, and as I noted at the outset, passive aggression was already adequately displayed at the Court on Monday, and not just in the Foster opinion. In its Orders List, the Court granted relief to eight convicted offenders sentenced by Alabama courts to life without parole for crimes committed when they were under 18. Most of the petitioners had originally been sentenced to death. In 2005, however, the Court had ruled that death sentences for crimes committed as juveniles violate the Eighth Amendment prohibition on “cruel and unusual” punishments. This automatically reduced their sentences to life without parole. Then, in the 2012 case of Miller v. Alabama, the Court decided that life-without-parole sentences for juveniles also violated the Eighth Amendment. There is no reliable way, the majority reasoned, to predict which young people can be rehabilitated and which “should” be put to death as “the worst of the worst.” Juvenile offenders must receive “individualized consideration”; “all but the rarest of children” must be given a chance at least to qualify for parole years after their offense.

Last January, in a case called Montgomery v. Louisiana, the Court held that the Miller rule applies retroactively—meaning those sentenced before the Miller decision could appeal their life-without-parole sentences. Eight appeals followed, and yesterday, under Adams v. Alabama, the Court remanded all the convictions to the lower courts to be reconsidered in light of Montgomery.

Once again, that didn’t sit right with Alito and Thomas. As far as Alito was concerned, the offenders who’d been sentenced to death had already had their “individualized consideration.” That is, when they were sentenced to death, back before the rule in Miller was announced, the juries had been instructed that they could consider their youth in deciding whether they should live or die. They had done just that, Alito reasoned. (Actually, in some of the cases, the juries had not recommended death, but in Alabama, a judge can overrule that recommendation.) Alito figuratively rolled his eyes: What more did these people want? “[C]ourts are free on remand to evaluate whether any further individualized consideration is required.” If not, then why not reimpose a sentence of life without parole? Problem solved.

Thomas, meanwhile, wrote separately to suggest that the Alabama courts could now consider “whether an adequate and independent state ground bars relief, whether petitioners forfeited or waived any entitlement to relief (for example, by entering into a plea agreement waiving any entitlement to relief) or whether petitioners’ sentences actually qualify as mandatory life without parole sentences.” So little time, so many ways to keep people in prison!

Justice Sonia Sotomayor wrote separately to make clear that some people—not naming any names here—just don’t understand the law. “That petitioners were once given a death sentence we know now to be constitutionally unacceptable tells us nothing about whether their current life-without-parole sentences are constitutionally acceptable. I see no shortcut: On remand, the lower court instead has the difficult but essential question whether petitioners are among the very ‘rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.’”

In all, on Monday, Alito and Thomas displayed all the grace of preteens being dragged to the symphony by Mom and Dad. In the guise of supporting the Court’s precedent, they implicitly urged a state court—and not just any state court, the Supreme Court of Alabama, whose history of lawlessness continues even now—to defy it.

It was a strange day in the courtroom. Reading an opinion from the bench, Sotomayor by a slip of the tongue demoted Justice Alito to “Judge Alito”; when Roberts announced his opinion in Foster, the usually by-the-book chief justice somehow forgot to mention Alito’s separate concurrence and Thomas’s dissent, leaving the impression that the decision was unanimous.

That’s the problem with passive aggression: It’s catching.