It’s shaping up to be one of the Supreme Court’s most consequential terms in recent memory, with the Court poised to take on racial discrimination, capital punishment and the judicial responsibility to seek truth. And that’s just one case: Foster v. Chatman. While Foster has not received the same attention from the press as some of the other cases set to be argued this coming term, the case presents questions of fundamental importance. Perhaps the most fundamental of those questions: Is there any context in which judges should fail to insist upon an honest, reasoned justification from the government when the constitutionality of its conduct is challenged? The Court should seize this opportunity to clarify that the answer to that question is “no.”
Foster involves a criminal trial in Georgia that led to a death sentence for Timothy Foster, an 18-year-old African-American who was accused of robbing and killing an elderly white woman. The prosecution used peremptory challenges, which permit parties in criminal or civil trials to remove potential jurors during jury selection, to eliminate every black prospective juror from Foster’s trial. Although the prosecution stated that it exercised its peremptory challenges for entirely race-neutral reasons, the record contains overwhelming evidence of purposeful—and therefore unconstitutional—racial discrimination. Examination of the prosecution’s own notes reveals that black jurors were singled out in at least five ways.
The Supreme Court has held since Batson v. Kentucky (1986) that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from removing potential jurors during jury selection because of their race. The Court stated in Batson that racial discrimination in jury selection not only “harms… the accused whose life or liberty” jurors are summoned to try but “undermine[s] public confidence in the fairness of our system of justice.”
In Batson, the Court articulated a three-step procedure that is triggered whenever a jury strike is challenged on the grounds that it was based on race. First, the trial court must consider whether “the totality of the relevant facts” establishes that the party challenging the strike has made out “a prima facie case of purposeful discrimination.” Second, the proponent of the strike must come forward with a race-neutral explanation. Third, the trial court must evaluate “the persuasiveness of the prosecutor’s justification for his peremptory strike” by assessing its “plausibility . . . in light of all evidence with a bearing on it.”
In practice, in all but the most extreme cases, trial courts have deferred to prosecutors’ proffered reasons for a strike or series of peremptory strikes. Foster presents the Court with an opportunity to ensure that Batson retains some bite. The “race-neutral” reasons given by the prosecution for removing all the black potential jurors from Foster’s criminal trial cannot be taken seriously. Contrary to the race-neutral explanations they offered to the trial court after-the-fact, evidence showed that during jury selection prosecutors highlighted the names of black jurors with a green marker on four different copies of the jury list; marked their names with a “B” on those same lists; circled the word “BLACK” in six prospective jurors’ questionnaires; referred to three prospective jurors as “B #1,” “B #2,” and B #3” in their notes; and ranked black prospective jurors against each other, just in case “it comes down to having to pick one of the black jurors.” Obviously, the Batson process for evaluating the legitimacy of peremptory juror strikes becomes an empty ritual if judges must rubber-stamp “race-neutral” rationalizations even in the face of such damning evidence. And yet, Georgia courts failed to find purposeful discrimination in Foster’s case.
More broadly, Foster gives the Supreme Court an opportunity to address whether there is any context in which judges should allow government officials to misrepresent their true ends in court. The Court has stated that, under the default rule in constitutional cases, the so-called “rational-basis test,” judges are not to make any effort to determine the government’s true ends because they are irrelevant so long as some constitutionally permissible end (even a purely hypothetical one) may be conceived. Lower courts interpreting Supreme Court precedent have understood the rational-basis test to require them to assist the government in coming up with justifications for its actions if the government’s own explanations aren’t persuasive—particularly in cases involving economic liberty and property rights. And yet, the Court has held that there are certain governmental ends that are not constitutionally legitimate under any standard of review, invalidating acts of government grounded in naked preferences for the politically powerful or hostility to unpopular groups. The only way that such illegitimate ends can be identified is through judicial engagement: impartial, evidence-based inquiry into the constitutionality of the government’s true ends, conducted without unwarranted deference to the government. A holding that such engagement is required in the context of juror strikes under Batson would serve as an affirmation that, as the Court long ago put it, “The basic purpose of a trial”—and in fact, any judicial proceeding—“is the determination of truth.” That affirmation would reverberate across areas of constitutional law, such as the rational-basis test, in which the truth-seeking function has been neglected.
As Justice Robert Jackson, himself a former prosecutor, once put it, “the citizen’s safety lies in the prosecutor… who seeks truth and not victims, who serves the law and not factional purposes.” Engaging in constitutionally forbidden discrimination and then misrepresenting one’s true ends in later court proceedings is a betrayal of public trust of the highest order. In Foster, the Supreme Court should seize the opportunity to make plain that judges must not tolerate conduct that undermines the truth-seeking process and must never fail to pursue the truth. Our legal system’s commitment to blind, impartial justice cannot be fulfilled if judges turn a blind eye to the abuse of government power.