Hood was put on administrative leave after his proposal caused an uproar in the media. He then returned to the school, agreeing not to offer any extra credits, but said he would find more “age-appropriate” ways for students to participate in anti-choice activities.
Christ the King Catholic School hosts students from kindergarten to 8th grade.
Few personalities loomed as large over U.S. law and politics as Supreme Court Justice Antonin Scalia, the conservative justice who died Saturday at age 79. In addition to making the 2016 presidential race even more interesting, his sudden death complicates a Court term already packed with marquee culture war topics such as abortion, affirmative action, and union rights. So what happens to those cases now that the Court is down a justice, and what does Scalia’s death mean for progressives? A helluva lot.
In terms of the cases the Court has already heard, Justice Scalia’s votes count only in cases that have already been decided, with an opinion released. For cases where the Court has not yet released an opinion, his votes—to the extent they have happened already after written briefings and oral arguments—are void. That’s a big deal for those cases in which Scalia was part of a 5-4 conservative majority. Those include Friedrichs v. California Teachers Association, where the Court was expected to strike yet another blow to organized labor by limiting fair-share fees, which help fund the organizing efforts that benefit all employees, union members or not.
Assuming, as most legal observers have, that the vote in Friedrichs to strike fair-share fees was5 to 4, Scalia’s death means the Court is now split evenly. In cases when there is no majority for a decision, the lower court decision is affirmed. In Friedrichs, that would mean a win for organized labor and a loss for the Koch brothers, who helped incubate the union challenge. Like I said, it’s a big deal.
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This brings me to one of the Court’s most closely watched cases this term, Whole Woman’s Health v. Hellerstedt, formerly Whole Woman’s Health v. Cole, which the Court will hear in March. As Drexel University School of Law professor David Cohen wrote in this must-read piece on the immediate implications of Scalia’s death on the case, Roe v. Wade is safe, for now. That’s because Scalia’s death makes it impossible for the remaining conservative justices to issue a sweeping opinion, applicable nationwide, that would effectively gut Roe by upholding Texas’ abortion restrictions, which have nearly regulated abortion out of existence in the state.
Should Justice Anthony Kennedy vote with the remaining conservatives and affirm the Fifth Circuit’s decision, the impact would be devastating for Texans as well as those who live in Louisiana and Mississippi, the other states covered by the Fifth Circuit, but that’s as far as the decision could reach. I still think Justice Kennedy is going to vote to strike the restrictions, which means reproductive rights advocates would win 5 to 3; the Texas restrictions and their copycats in Louisiana and Mississippi will likely go down; and those appellate court decisions blocking similar laws in places like Wisconsin and Alabama will stand. Another really big deal.
There is precedent for the Court to order cases affected by Scalia’s absence that end in a tie for rehearing once Scalia’s replacement is confirmed. But it is not entirely clear if that would apply in this instance, in part because nobody knows how long it will take to get a new justice confirmed, and how many tie votes we will get before then.
In other words, it is possible for the stakes to get even higher about Justice Scalia’s replacement, and rehearing legal challenges to union fees and the contraception benefit, for example, would do just that.
Beyond the impact on the Court’s upcoming business, there is Scalia’s legacy to wrestle with. Already, the tributes are coming in, as is appropriate for a person who served decades in the public sector. But here is where I must part ways with many of my colleagues offering their praises for Scalia.
I am not comfortable honoring a justice who consistently used his power and privilege as a cudgel against the disadvantaged. His dissents, no matter how masterfully written, didn’t strike me as something to celebrate, even ironically, because they became rallying cries for some of the most radical elements of the conservative movement.
Take, for instance, his dissent in Stenberg v. Carhart, the 2000 decision that struck Nebraska’s so-called partial-birth abortion ban.
“I am optimistic enough to believe that, one day, Stenbergv.Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsuand Dred Scott,” wrote Scalia, referring to previous Supreme Court opinions justifying Japanese internment during World War II and saying that Black individuals, whether free or enslaved, were not “people” who could bring claims in federal court. “The method of killing a human child—one cannot even accurately say an entirely unborn human child—proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.”
“The notion that the Constitution of the United States, designed, among other things, ‘to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,’ prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd,” he wrote.
It really should come as no surprise that the justice who in his dissent in Planned Parenthood v. Casey flat-out declared reproductive privacy nonexistent and wrote that he was “sure” abortion is not a “liberty protected by the United States,” would invoke racial internment and slavery, and employ terms such as “half-born,” to argue against the fundamental human rights of women. And it should also come as no surprise that more than 20 years after Casey, Scalia’s rhetoric around abortion and slavery finds itself regurgitated by the likes of radical anti-choice operative Troy Newman.
Justice Scalia’s dissents were easy for progressives to write off as the argle-bargle ravings of an angry white man, because they were. It was kind of funny when Scalia snarked about government broccoli during the first challenge to the Affordable Care Act. But for every applesauce quip, there was an example of a sitting Supreme Court justice providing cover and legitimacy to some of the ugliest aspects of the conservative movement.
“There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well,” Scalia said earlier this term, during oral arguments in Fisher v. University of Texas, a case looking to eradicate affirmative action programs in public universities. The Court has not yet released its opinion in Fisher. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”
Almost immediately after news of Justice Scalia’s death broke, Republicans in Congress promised to block any nominee to replace him. President Obama responded by offering his condolences to Justice Scalia’s family for his passing, before promising to fulfill his constitutional duty to quickly name a replacement. Scalia’s death, like much of his life, was instantly, bitterly partisan. In some ways, that’s a feature of our broken federal judiciary system, where appointments are routinely used as political leverage and capital. But in others, it’s a reflection of the kind of jurist Scalia was and why a critical look at his legacy is imperative. Scalia stoked partisanship in his opinions and public appearances, and not simply in the healthy-exercise-of-differences represented by the friendship between him and Justice Ruth Bader Ginsburg. He was the consummate activist judge, and no amount of flowery prose or biting dissents can undo that devastating aspect of his legacy.
Nearly 30 years ago, an all-white jury sentenced an 18-year-old Black kid named Timothy Tyrone Foster to death for the murder of an elderly white woman. Last week, the Supreme Court heard arguments in a case regarding whether Foster lives or dies.
Last week, the U.S. Supreme Court heard arguments in a case regarding whether Timothy Tyrone Foster lives or dies.
Nearly 30 years ago, an all-white jury sentenced Foster, then an 18-year-old Black kid, to death for the murder of an elderly white woman in Floyd County, Georgia. The prosecution had eliminated every eligible Black person from the jury pool. And once the prosecution had obtained an all-white jury, the lead prosecutor, Stephen Lanier, urged said jury to impose the death penalty in order to “deter other people out there in the projects.”
The all-white jury obliged.
Now, one of the issues looming before the Supreme Court is whether or not the prosecution’s purportedly race-neutral reasons for striking the Black jurors ensured that Foster would face a jury that would be susceptible to racially inflammatory comments like Lanier’s.
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The racism in Lanier’s statement to the all-white jury about “other people out there in the projects” certainly seems clear—after all, at the time 32 of the 34 units in the local housing projects were occupied by Black families. And it’s hard to believe that Lanier would have made that statement to the jury if there were a Black person sitting in the box.
But there wasn’t, because the prosecution had used its peremptory challenges to strike each of the four qualified Black jurors.
Lawyers in criminal cases are permitted to use nine peremptory challenges to eliminate jurors for any reason they want to, with some important limitations.
In 1986, in a case called Batson v. Kentucky, the U.S. Supreme Court ruled that jurors could not be excluded from sitting on a jury because of their race, and set up a system by which a trial court could hold a special Batson hearing and determine whether a prosecutor was striking jurors due to their race, or due to some race-neutral reason.
Foster, through his attorneys,asked the trial court to hold just such a hearing. Ultimately, the trial court didn’t think that Lanier used his challenges to strike every Black juror because of their race.
Every subsequent appellate court agreed; the prosecution had provided sufficient race-neutral reasons for striking the Black jurors, they said, leaving Foster’s fate in the hands of an all-white jury.
After that jury convicted Foster and sentenced him to death, Foster asked the court for a new trial. He argued that the trial court had made a mistake when it rejected his Batson claim. In response, the prosecution piled on even more “race-neutral” reasons for striking all of the Black jurors.
One of those reasons? That the investigator who helped the prosecution during jury selection was Black. This is about as close to “one of my best friends is Black” as you’ll find in a legal context.
The court rejected Foster’s Batson claim a second time.
In 2006, almost 20 years after Foster was sentenced to die, his attorneys obtained copies of the prosecution’s jury selection notes. And those notes changed everything, revealing almost mustache-twirling levels of villainy with regard to the prosecution’s efforts to eliminate every Black juror from the pool.
The notes contained four copies of a list of prospective jurors. On each of the four copies, the names of the Black jurors were highlighted in green and marked with the letter “B.” On the juror questionnaires, where prospective jurors had indicated their race, the prosecution had circled the word “Black.” All of the Black jurors were listed on the prosecution’s list of “Definite NOs.” And the prosecution ranked the Black prospective jurors in case, according to a draft affidavit signed by the prosecution’s investigator, “it comes down to having to pick one of the black jurors.”
The notes confirmed Foster’s attorneys’ suspicions. They had always believed that this was a clear case of racial discrimination. Before jury selection even had begun, they informed the trial court in a brief that the District Attorney’s office had a nasty habit of excluding Black people “from being allowed to serve on juries with a black Defendant and a white victim.”
And during Foster’s Batson hearing after the jury selection process was over, Foster’s attorneys pointed to a mountain of evidence that suggested the prosecution had repeated that nasty habit this time.
In response, the prosecution threw supposedly race-neutral reasons for striking jurors at the trial court like so much spaghetti on a wall. “All I have to do is have a race-neutral reason,” Lanier said, “and all of these reasons that I have given the court are racially neutral.”
Well, not exactly. A closer look at these reasons reveal that they are dubious at best.
During the Batson hearing, Lanier piled on explanations for why he eliminated all the Black jurors, presumably in the hopes that the court would latch onto one of them, even if other reasons were suspect.
Some of the reasons were thinly veiled dog whistles. Lanier claimed that each of the Black jurors was some combination of confused, incoherent, hostile, disrespectful, or nervous, and struck them on that basis.
Lanier also removed Black jurors from the jury pool for avoiding eye contact, being divorced, being a social worker, or appearing to be bored. When not criticizing the Black jurors for their demeanor in court, the prosecution exaggerated facts to make them look problematic, and gave reasons for striking Black jurors that applied to white ones who made it onto the jury.
For example, Lanier explained to the trial court that his approach in capital cases was to discriminate against women, not Black people: “Women have a tendency in a case of this nature where the death penalty is being sought—they have serious reservations, time conflicts, or whatever it may be, but that is what I look at when I am trying a death penalty case.” (In 1994, long after Foster had already been convicted and sentenced to death, the Supreme Court ruled that barring women from serving on a jury violates the Equal Protection Clause.)
Of the four prospective Black jurors, three were women. In the end, five white women ended up serving on the jury.
In one specific instance, Lanier claimed that Marilyn Garrett, one Black juror, was too close in age to the defendant. She was 34. At the time of trial, the defendant was 19. The prosecution accepted eight white prospective jurors who were 35 or younger, including one who was 21 years old.
In another, Lanier struck a Black juror, Eddie Hood, because he “asked to be off the jury.” But when Lanier used a peremptory challenge to strike a different Black juror, he said it was because that juror didn’t ask to be off the jury.
The prosecution also kept changing their tune when justifying their peremptory challenges.
In Hood’s case, Lanier originally said in the pre-trial hearing that he was concerned that Hood had an 18-year-old son, the same age as the defendant.
But on the motion for new trial, after the prosecution accepted two white jurors who had sons in the same age range as Foster, as well as the aforementioned 21-year-old white man, Lanier switched gears. Suddenly, Hood’s membership in the Church of Christ became the primary justification for eliminating him from the jury pool.
That reason was suspect too, however. Lanier claimed that the church “definitely takes a stand against the death penalty” even though Hood repeatedly said that he was not against the death penalty and was willing to impose it. Also, Lanier’s claim was later contradicted by the prosecution’s notes, which said the Church of Christ “doesn’t take a stand on [the] Death Penalty,” leaving the issue for “each individual member.” And, more egregiously, the prosecution’s notes said “NO. No Black Church” with an emphasis on “Black.”
Lanier also said that one of the Black jurors “appeared to have a low income occupation.” Notably, the Black juror’s “low income occupation” counted against her, but a white woman who went on to serve on the jury had almost the same job. Both women were teacher’s aides at local schools. In fact, the prosecution said that it wanted jurors that were “teachers or associated with teachers” because the victim was a retired schoolteacher. The prosecution proceeded to accept every teacher and teacher’s aide—except the Black juror.
The prosecution tried to explain away the difference in the way they treated the Black and white teacher’s aides by claiming that the Black teacher’s aide worked with underprivileged kids, and the white teachers aides did not. But during jury questioning, Lanier did not ask about whether or not the students with whom the white teachers and teacher’s aides worked were underprivileged.
These examples are but a few of the ridiculous reasons the prosecution offered to explain striking every potential Black juror. According to Foster’s attorneys in the case currently before the Supreme Court, the new evidence from the prosecution’s notes establishes that the prosecution purposefully eliminated Black jurors in order to secure an all-white jury; a jury that would impose the death penalty to send a message to Black people in the projects.
It’s outrageous, but, sadly, this is simply part of a long tradition of racial discrimination in a jury selection system that has failed Black people since the founding of this nation.
Numerous studies show that prosecutors strike Black jurors at significantly higher rates than white jurors, demonstrating their failure to take seriously the requirement in the Constitution that every citizen has an equal right to sit on a jury.
In 2012, a North Carolina state court found, based on a study of jury pools in 173 capital cases, that prosecutors were more than twice as likely to eliminate Black jurors from the jury pool than white jurors.
This sort of discriminatory behavior harms criminal defendants, especially in death penalty cases where the defendant is Black and the victim is white. According to the Equal Justice Initiative, “all-white juries tend to spend less time deliberating, make more errors, and consider fewer perspectives.”
The conduct also harms the excluded juror, who is prevented from participating in an important civic duty. Turning away Black jurors furthers stereotypes that Black people are unfit to serve on juries, creates false presumptions that Black people cannot be fair or follow the law, and, according to one Supreme Court case, Miller-El v. Dretke, undermines the integrity of our justice system.
This isn’t just happenstance or bad behavior by a select group of rogue prosecutors. In many instances, prosecutors are trained to cover up racial discrimination in the jury selection process by keeping race-neutral explanations for striking Black jurors in their back pocket, lest defendants mount a Batson challenge, according to an amicus brief filed in Foster’s Supreme Court case by a group of prosecutors, including author Scott Turow, and former Deputy Attorney General Larry Thompson, who served in the George W. Bush administration.
In North Carolina, for example, the North Carolina Conference of District Attorneys held a statewide training course that provided a list of justifications that prosecutors could use when striking Black jurors: a document entitled “Batson Justifications: Articulating Juror Negatives.”
And in a now-infamous training video, former Philadelphia District Attorney Jack McMahon advised trainees that keeping Black, low-income, and educated citizens off juries is key to securing convictions.
As reported by Philly.com in 1997, McMahon’s advice reached almost comical levels of racism as he explained to a group of trainees that:
In selecting blacks, you don’t want the real educated ones. This goes across the board. All races. You don’t want smart people. If you’re sitting down and you’re going to take blacks, you want older black men and women, particularly men. Older black men are very good ….
My experience, young black women are very bad. There’s an antagonism. I guess maybe because they’re downtrodden in two respects. They are women and they’re black … so they somehow want to take it out on somebody and you don’t want it to be you .…
The blacks from the low-income areas are less likely to convict. I understand it. It’s an understandable proposition. There’s a resentment for law enforcement. There’s a resentment for authority. And as a result, you don’t want those people on your jury.
This sort of race-based jury selection isn’t one-sided. Just as prosecutors tend to eliminate Black jurors from jury pools, defense attorneys tend to eliminate white jurors. The only difference is, prosecutors generally have a larger group of white potential jurors to choose from, so it’s often easy for a prosecutor to eliminate every Black juror from the jury pool. Defense attorneys cannot eliminate every white juror from the jury pool because there are too many of them. It’s a simple numbers game.
If the Supreme Court actually addresses the crux of the case, it’s likely that it will side with Foster’s attorneys, leading to a new trial. After all, four justices agreed to hear it in the first place, and it shouldn’t be too difficult for those four to find a fifth to agree with them, especially in light of Snyder v. Louisiana, a factually similar case which saw Alito and Roberts siding with the liberal wing of the Court to find by a vote of seven to two—with Alito writing the majority opinion—that the prosecution’s use of peremptory challenges were not race-neutral.
I wouldn’t be surprised if Alito and Roberts once again join the liberal wing if the Court rules in Foster’s favor.
But, as Lyle Denniston points out over at SCOTUSblog, during oral arguments, the justices spent a lot of time on the procedural complications of the case. That may prevent the justices from even reaching the merits of the case—the Court may simply kick it back to state court and let Georgia sort it out.
If that doesn’t happen, though, the Court will hopefully provide some guidance to trial courts about how to evaluate prosecutorial claims of race-neutrality, especially when there’s overwhelming evidence that the prosecution is impermissibly eliminating Black jurors because of their race.
Ultimately, a Batson challenge is toothless if a prosecutor inventing after-the-fact race-neutral reasons for eliminating Black jurors can overcome it.