Balkinization: Race and the Constitution-in-Exile

Race and the Constitution-in-Exile

Mark Graber

Yesterday's Miller-El opinions raise interesting and overlooked questions about the directions of a future Bush/DeLay/Frist Court. Justice David Souter, no flaming liberal by any liberal standard, in an opinion joined by Justices O'Connor and Kennedy (neither, particularly the latter, inclined to play race cards), found that Dallas prosecutors had engaged in unconstitutional race discrimination when they used peremptory challenges to get rid of 10 of 11 black jurors, when they asked different questions of those black jurors, when they excused black jurors who gave more death penalty friendly answers than white jurors, and when there was a long history of discrimination in the Dallas prosecutor's office. Justices Thomas, Scalia, and Rehnquist, however, insisted that such evidence was not sufficiently clear and convincing, demanding almost that the prosecutor announce that racial criteria were being used.

The broader significance of Miller-El is that a great many constitutional cases are more about weighing of evidence than general standards. What Miller-El demonstrates is that the Justices George Bush and company admire the most are unwilling to see race discrimination (against persons of color) even when moderate conservatives are grossly offending by the state action. Under what conditions, one might ask, would a Bush Court ever find race discrimination when a prosecutor or state official gave a race-neutral explanation. Brown and related decisions need not be overruled when a court simply credits any excuse states make for flagrant racial disparities

Posted 11:11 AM by Mark Graber [link]

Comments:

perhaps a greater glimpse into what a bush/delay/frist supreme court would look like is gleaned, not from the decision of the court yesterday, but from the decision of the fifth circuit, when miller-el was referred back to them originally by the supreme court, in a rather stinging 8-1 rebuke.

after receiving the case back from the supreme court, which presently has no bush, jr. appointees, the fifth circuit, which has a number of them, passed on the obvious racially discriminatory actions of the dallas prosecutors, forcing the supreme court to come down on them again. i have absolutely no doubt that had the president, who has already gone on the record as admiring scalia and thomas the most of any sitting or past justice, been able to pick a few justices for the supreme court prior to this decision, the ultimate result would have been to ignore, and therefore, to ultimately sanction racial discrimination in death penalty cases in texas.

beware, it could still happen.

# posted by

phg : 1:41 PM

I hope mjh21 won't think I'm getting too far down in the "weeds" to point out that Graber said Souter is "no flaming liberal"--which is a different kind of claim than that Souter is no liberal at all.

I'm no originalist (flaming or not), but even I find the actual text a pretty reliable guide to a writer's intended meaning.

Strange Doctrines.

# posted by

Michael Drake : 4:47 PM

By all means, let's get into the weeds: The justices the left admires are incapable of seeing racial discrimination in government policies which explicitly dictate differential treatment by race.

A galactic mass blackhole calling the kettle black.

# posted by

Brett : 6:24 PM

Dear MJH:
Souter, Stevens, and Breyer have joined majorities limiting punitive damages in tort suits. This is not, as I recall, a particularly liberal position. Ginsburg has been in dissent in most of these cases, along with Scalia and Thomas, who think that doing tort reform through the Constitution is just another version of substantive due process.

My take on Souter is that he is a old fashioned Rockefeller Republican who is more or less socially liberal, and who thinks precedent is very important. Because many of the key precedents were written in more liberal times, this increases the chances that he will vote with the more liberal Justices. But he cannot seriously be regarded as liberal in the mold of Thurgood Marshall, William Brennan, or William O. Douglas. We do not have anyone on the Supreme Court of that type today.

# posted by

JB : 10:08 AM

BG: but in other cases--ones that actually may have a larger effect on the lives on Americans--these Justices are quite cautious and moderate.

I think you're conflating tone, or temperment, and ideology. Being "cautious" should not be seen as the same as being moderate.

# posted by

David Nieporent : 1:16 PM

Besides the point about comparing Souter to historical liberals, there also might be some value in comparing him to worldwide liberals. If one looks at democracies around the world, I would think no one on the Supreme Court would be to the slightest bit left of their average center. I could easily be wrong about this, just a guess.

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Unknown : 2:16 PM