Fair Courts E-lert: SCOTUS Rules on Racial Discrimination in Jury Selection; Justice Breyer Says Court Not Diminished

May 27, 2016

SAVE THE DATE: On June 6 at 2 PM EST, the Brennan Center will host a webinar introducing its Rethinking Judicial Selection Project and New Interactive Map Resource on judicial selection in the states. Click HERE to register for the webinar.


U.S. Supreme Court Rules on Racial Discrimination in Jury Selection

The U.S. Supreme Court issued its decision in Foster v. Chatman on Monday, striking down “the conviction and death sentence twenty-nine years ago of a young black man, Timothy Tyrone Foster” as “unconstitutional, based on the use of peremptory strikes to keep all blacks from serving on the jury,” writes Lyle Denniston for SCOTUSblog.com. However, according to Denniston, although “[t]he Supreme Court made a new effort…to restrict prosecutors’ power to strike black jurors in a racially sensitive case, …the result was so tightly focused on what happened at just one trial that it [is] doubtful that the new ruling would do much to end the practice.” He explains that “[b]ecause the opinion hewed so closely to the evidence in Foster’s case, the Chief Justice made no attempt to add further to the scope of the Batson analysis,” which previously established that peremptory strikes could not be motivated by race. Denniston also adds that it remains unclear “whether the decision will actually nullify Foster’s conviction or his death sentence.” In their respective concurring and dissenting opinions, Justice Samuel Alito and Justice Clarence Thomas suggested that the state courts could “scuttle Foster’s challenge on a procedural point under state law” when it returns to them.

Justice Breyer Says Eight Member Supreme Court Not Diminished

On Monday, Justice Stephen Breyer said that the U.S. Supreme Court has not been “diminished” by the current vacancy, writes Sam Hananel, for the Associated Press. Justice Breyer spoke on the vacancy “in response to questions at an awards ceremony at the Library of Congress.” Justice Breyer stated of the more than 70 cases the court will decide this term, the Court “may divide 4-4 in four or five cases” and they “may not.” Hananel explains that when the court divides 4-4 this “leave[s] the lower court ruling in place and prevent[s] the court from setting a legal precedent that applies to the entire country.” Hananel also highlights that the split cases “could include some of the term's biggest cases involving abortion and immigration.” Although the Supreme Court “has already deadlocked in three cases,” Justice Breyer “stressed that the court in recent years has ruled unanimously about half the time and divided 5-4 in only a small percentage of cases.” The Brennan Center’s Alicia Bannon examined the possible implications of 4-4 decisions in an op-ed earlier this year.


FL High Court Will Decide How County Court Seat Should Be Filled

The Florida Supreme Court has been asked to settle whether the Governor or the electorate should fill a seat on the Palm Beach County Court, writes Jane Musgrave for The Palm Beach Post. According to Musgrave, County Court Judge Laura Johnson “resigned on April 22 to seek a circuit court seat,” creating the vacancy. In papers filed with the high court, Gov. Rick Scott (R) contends that “[a]ccording to the ‘plain language of the Constitution,’ [he] gets to fill [the seat].” Nick Evans, writing for WFSU, specifies that Scott retains the “right to fill vacancies so long as an electoral process hasn’t begun,” which is what is at issue in this case. Because Johnson resigned 10 days before the qualifying period began, as is required under the resign-to-run law, attorney Gregg Lerman, claims there should be an election for the seat. Lerman is hoping to replace Johnson on the county court. Evans says the “state law is murky, with a constitutional provision giving replacement powers to Scott and the so-called ‘resign to run’ statute giving it to the voters.” Scott maintains that “[i]t is a bedrock principle of jurisprudence that a statute cannot supersede a provision of the state or federal constitution.”


Ethics Hearing Set for KY Judge

Jefferson Circuit Court Judge Olu Stevens will face a hearing before the Kentucky Judicial Conduct Commission August 8 on counts of misconduct mostly related to his posts on social media and other public statements, writes Matthew Glowicki for the Courier-Journal. The Commission said that Judge Stevens “broke ethical rules instructing judges to not show bias or prejudice, to refrain from commenting on pending or impending court proceedings and to avoid in their conduct outside of the courtroom demeaning the judiciary or casting doubt on their ability to be impartial.” Stevens, however, argues that “his public comments are protected by the First Amendment.” He also filed suit against the commission, “saying the group was seeking to punish his free speech and thus violating his First and Fourteenth Amendment rights.” Following the August 8 hearing, the commission will decide whether to “dismiss the charges or impose a sanction.”

Please note that the Fair Courts E-lert will now be moving to an every-other-week schedule.