Wednesday, June 26, 2019

"We Cannot Just Look Away."

Neil Siegel

The most important sentence in any U.S. Supreme Court opinion this Term may be from Justice Kavanaugh's majority opinion in Flowers v. Mississippi, the case in which the Court credited strong evidence of racial discrimination in jury selection and rejected as pretextual various innocent explanations for a government official's conduct. In considering all of the evidence that a prosecutor acted with racially discriminatory intent, Justice Kavanaugh wrote powerfully and almost poignantly: "We cannot just look away." Justice Kavanaugh spoke for seven Justices.

Tomorrow, when the Court disposes of the census case, we will learn which Justices are prepared to "just look away" and credit pretextual justifications in the face of strong evidence that both ugly racism and rank partisanship played a substantial role in the decision of a government official to add a citizenship question to the census.

As I have noted before, judicial talk can be as cheap as other kinds of talk. Are they just judges on the Roberts Court, or are they Trump and Obama judges? It's in how the Justices respond to the cases in which the partisan stakes are highest that we learn what color their robes really are.

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