The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.
Like all Americans who care about the fate of the nation I have been glued to my television, my radio and my Twitter feed trying to keep up with the Trump administration’s unfolding drama. And it has been quite a rollercoaster ride, culminating, at least for now, with the appointment of a special counsel less than 125 days into the administration.
However, as an academic, it’s my role to place events in historical context, and ignore the seduction of responding to the minute-by-minute outrageousness of the Commander in Tweet. As a law professor, I know that while the Executive Branch gets the bulk of the press attention, developments in the Judicial Branch can be just as important in shaping the fate of the nation.
Yet, the judicial branch is no more insulated from the political atmosphere than the rest of us. We know from political scientists and media experts that partisans in the 2016 election tended to silo their information. Conservatives watched Fox News and heard one set of arguments, and liberals watched MSNBC and heard another. And meanwhile, fake news was spread around like so much manure after the Kentucky Derby.
All of which has led the legal academic in me to wonder what 2016 election was Chief Justice John Roberts watching? For example, is Roberts cognizant of all the racially-charged rhetoric Trump used in his campaign? Such rhetoric – and Roberts’ attitude toward it – can have constitutional implications.
For example, one wonders if the tone of Trump’s campaign had anything to do with Roberts’ majority opinion in a case decided 6-2 in February. The case, Buck v. Davis, was an ineffective assistance of counsel claim in a Texas death penalty case. Under Texas law, the jury could only impose the death penalty if they unanimously believed that Buck, who was black, was likely to commit acts of violence in the future.
The defense called a court-appointed psychologist who testified that, using a number of statistical factors, concluded that Buck was unlikely to commit future violence. Yet, one of the factors the psychologist considered was race, and he noted that blacks were statistically more likely to commit violence. In fact, the psychologist told the defense, race is “know[n] to predict future dangerousness.” During cross-examination, the prosecution had the psychologist talk more about his beliefs about race and violence, and referenced the testimony in closing argument.
The Court held that Duane Buck received ineffective assistance of counsel by allowing this racially stereotyped evidence to enter the case. Roberts wrote:
Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, [the psychologist’s] report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race.
[The psychologist’s] testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. [The psychologist’s] opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race.
Roberts then concluded, “the impact of that [racial] evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.” He added, “Buck may have been sentenced to death in part because of his race. As an initial matter, this is a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.”
This language may surprise some because of Roberts’ 2013 opinion in Shelby County v. Holder. The effect of Shelby County was to effectively gut the Voting Rights Act -- removing the formula used to determine which jurisdictions had a history of racial discrimination in voting and whether any changes in voting laws would need government approval. Roberts was roundly criticized for assuming that racism was over. He never actually said that, but statements such as the following left him vulnerable to the criticism: “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
Shelby County displayed considerable willful blindness on how racial discrimination was still present in voting in 2013. Immediately after the ruling, southern states such as Texas and North Carolina enacted laws that suppressed the votes of African Americans and other minorities. It’s worth remembering Roberts was writing against the backdrop of the 2012 election when the nation had just re-elected its first black President. There was optimism that America had turned the corner on race relations.
Of course, Shelby County and Buck are different types of cases. Shelby County involves election law and Buck involves criminal procedure. Yet in both, Roberts appears to be striving for color blindness.
But the Roberts of 2017 in Buck seems to have a keener appreciation of racism than the Roberts of four years earlier in Shelby County. I wonder whether the 2016 election and its thinly-veiled racism challenged him to re-evaluate his views on the prevalence of American tolerance. At 62, Roberts has decades ahead on the bench. It will take many more opinions to learn if Roberts’ assumptions about race have genuinely evolved.