John Roberts Sees Blatantly Racist Nonsense Where Clarence Thomas Doesn’t

Commentary Law and Policy

John Roberts Sees Blatantly Racist Nonsense Where Clarence Thomas Doesn’t

Imani Gandy

I would be remiss if I didn't point out that when it comes to matters of race, Clarence Thomas consistently sides against Black people. His dissent in Buck v. Davis is no different.

In a 6-2 decision, the U.S. Supreme Court ruled Wednesday in favor of Duane Buck, a Black prisoner who was sentenced to death after his own feckless attorney put a psychology “expert” on the stand to testify that Black people are more prone to violent crime.

If you’re thinking to yourself, “Testifying that Black people are more prone to violence is some seriously racist shit,” then good for you: It really is some seriously racist shit. And it may have led to Buck being put on death row. 

You also might be thinking yourself, “Imani, if this is some seriously racist shit, why wasn’t the decision unanimous? Why did Clarence Thomas and Samuel Alito dissent?”

To be honest, I have to say that I am as surprised as you are. When I wrote about Buck v. Davis last October, I assumed the decision would be unanimous, given the tenor of the questioning during oral arguments. Of course, Thomas said nothing during oral arguments (as he is wont to do), and perhaps that should’ve given me pause.

But Alito? What happened to you, man? At oral arguments you said, “This is a very—a very unusual case, and what occurred at the penalty phase of this trial is indefensible.”

At the time, I thought to myself, “Damn right it is!”

So if what happened is indefensible, why didn’t you vote to let Buck have a new sentencing hearing? This isn’t about the fear of putting a criminal back on the street. If, at the new sentencing hearing, Buck is not sentenced to death, he will certainly spend his life in jail. So what the hell?

In Texas, a person is subject to the death penalty only if they are dangerous and likely to commit future criminal acts of violence. In other words, before a jury can sentence a person to death, that jury must be certain beyond a reasonable doubt that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

So what did Buck’s attorney do? Put a defense expert, Dr. Walter Quijano, on the stand who testified that Buck was more likely to commit future acts of violence because he is Black.

Duane Buck is not the perfect defendant for a case like this—or any case, for that matter. He was convicted of murdering the mother of his children in front of them and shooting his own sister in the chest, among other offenses.

But here’s the thing: In our judicial system, even a person charged with the worst offenses is entitled to a defense that is not utter horseshit. And yet Jerry Guerinot, Buck’s attorney, put that psychologist on the stand knowing what he was likely to testify. In doing so, Guerinot practically ensured that the jury would sentence Buck to death. (Guerinot’s incompetence is overwhelming, even more so when you consider that he tried 36 death penalty cases over the course of his career and lost every single one of them.)

Ultimately, Quijano (and another expert psychologist, one who didn’t testify to a bunch of racist claptrap) concluded that Buck was unlikely to commit future acts of violence. Dr. Quijano pointed to Buck’s good behavioral record in prison and that his crime occurred within the context of a romantic relationship. The other psychologist, Dr. Patrick Lawrence, testified that the crime was one of passion and not likely to be repeated.

But still, Buck’s Blackness, according to Dr. Quijano, was competent evidence of an increased probability for future violence.

The trial court dismissed the effect of Quijano’s racially inflammatory testimony as “de minimis”—meaning “no big deal”—but the Supreme Court disagreed.

“[O]ur holding on prejudice makes clear that 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,” Justice John Roberts wrote.

“This departure from basic principle was exacerbated because it concerned race,” he continued.

“Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice,” he concluded, citing a 1979 case, Rose v. Mitchell.

And good for Roberts. After his majority opinion in Foster v. Chatman, Roberts is two for two when it comes to striking down really blatantly racist shit. (In Foster v. Chatman, a Black death row inmate was granted a new trial after evidence came to light that the prosecution had purposefully stricken every Black juror from the jury pool in order to obtain an all-white jury.) I can’t help but wonder how Roberts now feels about his rosy “racism is over” claptrap in Shelby County v. Holder, but hey—when this white man sees blatantly racist shit going on, apparently he’ll step up and recognize it. And for that, I’m going to give him one kudo. Not kudos, because I don’t think he deserves multiple kudos—just the single solitary kudo.

The same can’t be said for Clarence Thomas, however. Clarence Thomas gets zero kudos.

Leave it to Thomas to be the worst, and this time, I think he dragged Alito with him. (I mean, Alito said the trial proceedings were indefensible, and then proceeded to sign on to an opinion defending them.)

I’m not one to Black-check other Black people. I don’t like using phrases like “Uncle Tom” or “race traitor” or any insult that denies another Black person his or her Blackness. Blackness comes in many forms. Black people are not a monolith. But I would be remiss if I didn’t point out that when it comes to matters of race, Clarence Thomas consistently sides against Black people.

His dissent in Buck v. Davis is no different. (And just in case you were wondering, yes, he dissented in Foster v. Chatman. He would have been perfectly content to send Foster to his death, despite the fact that the Black defendant had been railroaded at trial by a prosecution that wanted him to be convicted and sentenced by an all-white jury.)

In his dissent, Thomas seems to go out of his way to justify the blatantly racist shit that went on in Buck’s trial. He discusses that under Texas law, the facts of the offense alone may be sufficient to sustain the jury’s finding of future dangerousness before launching into a diatribe about the heinous nature of Buck’s crime and specifically rejecting the idea that it was one of passion. He then notes that under Texas law, a lack of remorse may also indicate future dangerousness and then fulminates about Buck’s lack of remorse in the immediate aftermath of his horrific crimes.

Thomas then hand-waves the impact that Dr. Quijano’s racist testimony might have had on the jury, proclaiming that “the prosecution’s evidence of both the heinousness of petitioner’s crime and his complete lack of remorse was overwhelming. Accordingly, Dr. Quijano’s ‘de minimis‘ racial testimony … did not prejudice” the jury against Buck.

This is Clarence Thomas at his Clarence Thomasiest, and I’ll let Elie Mystal of Above the Law explain why:

That’s just Thomas in a nutshell. All racism has a “de minimis” effect in Thomas’s world. It’s not that he doesn’t think racism exists, it’s that he thinks it can be overcome by sheer force of will and stubbornness. Racism never hurts anybody who doesn’t let it hurt them. Only weak-ass brothers and sisters think racism has more than a de minimis effect on their lives.

Maybe that’s true for Clarence Thomas. He’s overcome a lot of racism in his life, and now that he’s in the tree house, he doesn’t see one goddamn reason to throw down a ladder. He didn’t have one, why should anybody else need one?

But you’ll notice his assertion that “racial testimony… did not prejudice petitioner” is just that: a bald assertion. HE DOESN’T KNOW THAT. He doesn’t know what the sentencing jury was thinking when it heard the defense’s own EXPERT testify that black people were more dangerous. Maybe they thought “hogwash, that’s just racism.” But maybe they didn’t. MAYBE, the racist expert testimony served as confirmation bias for their own prejudiced views about which people are “dangerous.” Since we can’t know, maybe not having the racist testimony in the first place was the way to go?

Here’s what else bothers me about Thomas’ argument. He argues that Buck’s crime was most assuredly not one of passion. This places him in direct disagreement with the two psychologists who said otherwise: They said that because Buck’s was a crime of passion, Buck would be unlikely to commit future crimes. Thomas also argues that the racist expert testimony wasn’t prejudicial.

Let’s think this through. If the jury agreed with Thomas that the crime was particularly heinous and wasn’t one of passion, that means the jury would have disagreed with the primary reason that Buck’s expert psychologists gave to support their opinion that Buck was unlikely to commit future acts of violence. Buck’s incompetent attorney likely thought he was doing Buck a favor: Yes, Black people are prone to violence, but not this Black person, because my experts say that this Black person committed a crime of passion. He was just really pissed at his ex-girlfriend.

But if the jury, like Thomas did, rejected that conclusion, all that remains besides Buck’s supposed “lack of remorse” is Buck’s Blackness and the testimony of his own defense expert saying that Blackness equals criminality. Dr. Quijano’s testimony about Black propensity for crime would have likely loomed larger in the jury’s minds. It is inconceivable that such racially inflammatory testimony would be “de minimis.” Thomas’ valiant attempt to eliminate race as a factor actually undercuts his argument that race wasn’t a factor. Ultimately, his argument is based solely on speculation about whether a jury would be prejudiced by racist testimony.

As Elie Mystal put it:

Thomas assumes that prejudiced testimony doesn’t influence people. The [Court] majority assumes that the defense should not offer testimony racially prejudiced against their own client. The majority’s assumption is race-neutral. Thomas’s assumption is steeped in his own theories about how prejudice and discrimination really work.

There’s something wrong with Clarence Thomas’ logic. I don’t know what it is. I don’t think I’ll ever know what it is. What I do know is that his opinions routinely harm Black people by favoring regressive anti-Black jurisprudence, and I wish he would stop. But he won’t.

I also know that when something is too racist for John Roberts, it should be too racist for Clarence Thomas.