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72 Stan. L. Rev. Online 1 (2019-2020)

handle is hein.journals/slro72 and id is 1 raw text is: ESSAY What Justice Thomas Gets Right About Batson Thomas Ward Frampton Introduction In Flowers v. Mississippi, the Supreme Court vacated the capital conviction of Curtis Flowers; prosecutor Doug Evans was motivated in substantial part by discriminatory intent when he used a peremptory strike to exclude a black potential juror, the Court held, violating a prohibition against such conduct first announced in Batson v. Kentucky' Flowers marks the Court's third significant encounter with the Batson doctrine in the past eleven years: As before, the Court granted relief to a black man sentenced to death; as before, an all-white or nearly all-white jury in the Deep South delivered the verdict; as before, the Court's opinion was narrow and authored by a member of the Court's conservative wing. Justice Thomas, joined in part by Justice Gorsuch, penned a lengthy dissent. Justice Thomas's dissent has been met with disdain in the popular press. In the New Yorker, Jeffrey Toobin declared Justice Thomas's opinion astonishing;2 another commentator described the dissent as too wacky, too hostile, and aggrieved to merit a response.3 To be sure, the dissent-which advocates a radical overhaul of how we police racial discrimination in jury selection-is underwhelming in conspicuous ways. ButJustice Thomas's dissent also gets right many things about the Batson doctrine and race in the courtroom Climenko Fellow and Lecturer on Law, Harvard Law School. Many thanks to Mara Chin Loy, Will Craft, George Frampton, Jr., Benjamin Levin, Corey Robin, Carol S. Steiker, and the staff of the StanfordLaw Review Online. 1. No. 17-9572, slip op. at 3 (U.S. June 21, 2019) (quoting Foster v. Chatman, 136 S. Ct. 1737, 1754 (2016)). 2. Jeffrey Toobin, Clarence Thomas's Astonishing Opinion on a Racist Mississippi Prosecutor, NEW YORKER (June 21, 2019), https://perma.cc/Y8MD-N73S. 3. Mark Joseph Stern, Brett Kavanaugh's Latest Opinion Protects Black Defendants Against Racist Prosecutors, SLATE (June 21, 2019, 2:33 PM), https://perma.cc/P7J6- VD6A. See also Andrew Cohen, The Supreme Court Rights a Historic, Racist Wrong in Mississippi, BRENNAN CTR. BLOG (June 24, 2019), https://perma.cc/3VHU-3KAB (describing the dissent as shameful and worthy of great disdain); Bennett Gershman, Clarence Thomas's 'Cruel and Dishonest' Opinion Shouldn't Be Forgotten, L. & CRIME (July 1, 2019, 3:41 PM), https://perma.cc/4YNY-4WQJ (describing Justice Thomas's opinion as cruel and dishonest).

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