Summary
Much of the time in recent years, the Supreme Court has been divided deeply on racial issues. Some Justices think the nation has moved beyond race, others think the problem remains as bad or is even worsening. Differing views of constitutional issues about race thus emerge.
On Tuesday, though, there was no division over the perception that racial bias is a very worrisome thing when it shows up as juries deliberate in private over a criminal verdict. Justice Elena Kagan described the problem most tellingly in the new case before the court: “We have the best smoking-gun evidence you’re ever going to see about race bias in the jury room.” But the unanimity of concern over that problem vanished when the Justices explored solutions – and some even wondered if there is a need for any new solution.
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Stanford law professor Jeffrey L. Fisher, representing Pena-Rodriguez in the Supreme Court, had come to the hearing hoping to keep the Justices focused solely on the threat of race bias to the judicial system. “Race is different,” he said, corroding trials and indeed the entire system.
But he encountered immediate questioning from Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., who wanted to know what the stopping point was: would the next case be about a juror prejudiced because of religion, or gender, or sexual orientation, or some other trait? When Fisher answered by sticking with the “race is different” theme, Alito said that was not being helpful.
While the more liberal members of the court seemed more receptive to Fisher’s argument, they, too, were puzzled, but more about how such a challenge to a verdict would actually be explored. Fisher had argued in his brief that courts would have the tools to work out the procedure, but the Justices wanted suggestions on how it would work. Fisher said it would have to be an “objective” exploration by the judge, after hearing what jurors had said about remarks during deliberation, and then decide whether that may, or may not, have tainted the verdict.
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