Peña-Rodriguez v. Colorado, racist jurors, and Judge Merrick Garland on Slate’s Amicus.

What Happens When You Have a Racist Juror in the Courthouse?

What Happens When You Have a Racist Juror in the Courthouse?

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Oct. 21 2016 2:07 PM

What Happens When You Have a Racist Juror in the Courthouse?

Slate’s Amicus podcast discusses a landmark case about jury bias.


We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 51, in which Slate’s Dahlia Lithwick discusses Peña Rodriguez v. Colorado, an important case about jury bias that dominated the Supreme Court this week. Jeffrey Fisher, who represented the petitioner in the case, joins Dahlia in the conversation on why racist comments by jurors should invalidate the trial’s verdict.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Dahlia also talks to two representatives from the White House—Brian Deese, who was a senior adviser to the president, and Neil Eggleston, who currently serves as White House council. Is the court broken, and if so, are Republicans and the Senate responsible? And what worries Deese and Eggleston most about the future of politics?

This transcript has been edited for length and clarity. To learn more about Amicus, click here.

Dahlia Lithwick: Hi, welcome to Amicus, Slate’s podcast about the U.S. Supreme Court. I’m Dahlia Lithwick, and I cover the court for Slate. As of Friday, Oct. 14, there have been 212 days since President Obama stood in the Rose Garden and nominated Judge Merrick Garland to the vacancy on the court’s bench.

Not only is this a record wait by mid-November, Garland will have waited twice as long for Senate action on the nomination as the person who held the prior record, Louis Brandeis, 100 years ago. Now, if you’re of a certain age, you may remember the 1971 Brady Bunch episode, in which the young Jan Brady laments having to live in the shadow of her magnificent older sister.

Jan Brady: All I hear all day long at school is how great Marcia is at this, or how wonderful Marcia did that. Marcia, Marcia, Marcia.

Lithwick: Well, here on Amicus we have our own weird version of Marcia, Marcia, Marcia. And it goes like this: Merrick, Merrick, Merrick. We talk about him all the time, or at least about the seat that he continues to not occupy or even get at vote for at the SCOTUS bench. We’ve spoken to court watchers, we’ve spoken to academics, we’ve spoken to a sitting U.S. senator. But, never before have we been able to bring you the perspective of the White House itself.

We are so lucky today to be able to hear from two people who’ve been working very closely with President Obama on the Garland nomination. A little later in the show we’ll return to the Supreme Court courtroom for a blow by blow of arguments in an important case that had to do with jury bias that was argued just this past week. But first, we are delighted to welcome to the show, two representatives from the White House, Brian Deese, who was a senior adviser to the president, and Neil Eggleston, who serves as White House council. Brian and Neil, it is such an honor to have you on Amicus.

Brian Deese: Great to be here, thanks Dahlia.

Neil Eggleston: Thank you.

Lithwick: Brian, maybe you’d start us off. it feels as though Merrick Garland has really—despite my, Marcia, Marcia, Marcia—his name is not spoken. You know, with the exception of valiant, I think, efforts on the hill to get folks to pay attention, has just disappeared from the conversation around this election. And I guess my first question to you is, am I wrong about that? I mean, it just feels as though his name was not mentioned at the conventions … newspaper searches are fruitless. Is Merrick Garland just the incredible disappearing nominee?

Deese: I think the answer to that is no. I would take mild issue with the premise in the following way: If you look at public opinion research, what you see is consistently, the American public is aware of the Supreme Court vacancy. And they support even generally by close to a 2-to-1 margin, the action to fill the Supreme Court vacancy, and they are aware that Merrick Garland is the next nominee, and have a basic sense of his qualifications.

So, in that sense I don’t think that he is absent from the conversation. We have made a deliberate effort to try to not inject Merrick Garland into the partisan conversations.

So you know, as you raise the question about the convention. Our intention was never that Merrick Garland should be a part of the partisan conversation or an election-rallying cry. Our intention was, and continues to be that Merrick Garland should be on the Supreme Court. And so, I think that the American public is paying attention to this. I think that it is affecting the way that people think about whether the senate is doing its job.

And if you look at the Republican majority in the Senate, their approval rating is as low as any group of people out there right now, and I think that this has contributed.

Lithwick: But am I wrong in sensing—and maybe this is just visceral on my part—that back when the president tapped Garland, there was a sense that, hey, Kelly Ayotte could lose her race over this.

You know, hey, Ron Johnson could lose his race over this. That this would be an issue that really enraged voters, and now we’re almost seeing Senate Republicans. Some are in fact, openly, not running on the proposition that they obstructed Garland. So did this flip in a way? Did this go from being something that was disqualifying in a Senate run that has now become, hey, we managed to block Obama’s nominee vote for us, or is that not happening out there?

Deese: No, I think overwhelmingly, the argument is that the Senate needs to do its job and act. And the fact that the senate has not done its job is a powerful argument that is one that resonates with people across the country. And I think that those senators who are running and are in close races, are not comfortable with the idea that they have to defend this position. And in fact, you mentioned Kelly Ayotte—you saw just recently her come out and try to massage or suggest that she would give different consideration after the election.

So I think that this is an issue that has contributed to a pervasive sense that the Republican majority in the Senate has failed to execute its basic responsibilities.

Now, this is a unique election, and there are a lot of issues that have contributed to that, but I think that this absolutely has had an impact on the pretty clear sense that the dysfunction in Congress is not what typical people expect when they elect people to positions of power. And I don’t think that this is something that any of those folks on the front out there on a day-to-day basis are happy to be defending.

Lithwick: Neil, I want to ask you the corollary question that just has to do with how folks are thinking about the court, in this election.

And I think maybe we can stipulate or maybe you dispute that there’s a sort of enthusiasm gap and that Republicans for decades have done a better job of organizing around the composition of the court, and messaging that this matters. For whatever reason, Democrats tend to rank the court far lower on their list of things that they vote about. Is it your sense that that has changed because of this open seat? Or is it your sense that Democrats continue to say, “You know, number 17, right after the environment—that’s where I put the composition of the court.”

Or has these sort of existential questions about whether the court is broken and Republicans and the Senate are responsible—has it broken through for Democrats in this election?

Eggleston: So Dahlia, I’m not sure I would necessarily accept the premise. But in any event, this for election, I would say that this Supreme Court nomination has become a significant issue for Democrats. And particularly those who are following the election carefully.

I think in the last several years, we’ve seen a series of quite significant cases come out of the Supreme Court, that impact the lives of ordinary Americans, and that the result of that is that more and more people are recognizing the importance of the court—basically, to their daily lives, to their values, and to the way we go about the political process. And so, if anything I think that there is much more attention by Democrats, and certainly as well as Republicans on that outcome…who the President is going to be, and who has the opportunity to get the next confirmation of a nominee to the Supreme Court.

You know, having said that, the Republicans in this case have acted in a way that is unprecedented in history. They are taking the position that the people should decide, and there should not be a nominee, in the last year of the President’s term. I must say, that is completely unprecedented. There have been a number of nominees in the last year of the President’s term, going all the way back to President Washington. You know, the Republicans and Conservatives always like to talk about the founding fathers.

Well, in the founding fathers’ era, there were nominees to the Supreme Court during the last year of our President’s term, and during an election year. And indeed, as we know, Justice Kennedy was confirmed in the last year of before an election when President Reagan was the President.

Lithwick: I know the White House has been messaging this really hard, and I know you and Joe Biden have been out talking about this. There have been so many events around the vacancy as the court term as opened.

Is it complicating to message this when the court itself institutionally keeps insisting that it’s doing just fine? By and large—with the exception of now Justice Bader Ginsburg coming out and saying no, this is not good, and I think Elena Kagan said something softer, but similar. But in so far as there’s not someone at the core who is saying you know, we only took IP (Intellectual Property) cases this year, help, you know? And we had to bat away immigration again, help.

What does that mean that, in some sense, when the White House speaks on this, it speaks in the absence of a real voice from the court itself?

Eggleston: So Dahlia, I think that’s interesting, and I think about it in a following way—which is that one of the impacts of what’s happened in the Senate Republicans’ obstruction of this—that really causes me concern is an impact of the institution itself, and whether that institution can perform its function.

It has a critical function to render decision in cases. And obviously we saw last term, hopefully we won’t see this term because Garland will be confirmed quickly, but we saw the court essentially be unable to fulfill its responsibility. And I think that that has an impact on the court. I clerked on the court in—a lot of years ago—October term, 1979, and I have an enormous love for it.

And I have to think that part of what’s going on is the justices do not want to particularly acknowledge that having gotten caught up in the political process has an impact on them as an institution. So, what they say publically and what might be happening up there. … I think maybe somewhat different. I think if you look both at the number of four cases and really critical issues last term, I think that’s a reflection of an inability to do their work. And actually, Dahlia, I’m sure you follow this, but as you just said, if you look at the cases they’ve accepted for this term, so far they’re well below or behind previous years.

And although there are certainly some important cases, they’re not at the level of important cases that you usually see granted by this time in a term. So the fact they’re not talking publically about it, I don’t think is a reflection. I think it’s a reflection of their concern about the impact of being drawn into the political process, which is not good for the Supreme Court as an institution, and I worry about the impact of what’s happened in the last you know, several months on the court as an institution.

Lithwick: Neil, I think the follow up question, because you’ve raised this question of the politicization of the court, and I asked this question to Tom Goldstein in the last episode. There’s some awful lot of Americans, including American progressives who say this is awesome, you know, the court is now minimalist and it’s humble and it’s doing very little, and that is as it should be. The court has wildly over-reached in the last few decades, and this is a good situation on the left and the right, to have the court back off and let political processes decide things once and for all.

And I don’t think that’s a partisan argument. I’ve heard it made across the boards that maybe the single best thing we could do is kneecap the court and let politics sort the rest of it out.

Eggleston: So I don’t agree with that argument. I think, as others have said, and I think Justice Kagan actually said this fairly recently, there are an odd number of justices for a reason.

You could have an argument about whether the court has or is not being too intrusive in various different areas. That’s a separate question. But I think the issue about whether it has the full complement of Justices in order to do its job, is a very different issue. The result, if you think about it, obviously I was heavily involved in the immigration executive actions. And ultimately as a result of the district courts determination to enter a nationwide injunction in affirmative actions by the fifth circuit, basically that has become the law of the land, at least in the short run because of a 4–4 court.

And so, we’re basically in a situation where the 5th Circuit is made law, if you will, and then it’s been affirmed by a 4–4 court. I just think that that’s inappropriate. There should have been an occasion for the Supreme Court to make a determination on a nationwide basis, and as result of being hobbled and being justiced down; it was unable to make those determinations. Or a series of those cases that took place in the spring.

So I think the question you ask, about sort of the role of the court and whether it’s been too involved in the political process, is a debate that’s happening. And I recognize that, but I think you have to separate that from the issue of whether or not the Senate Republicans have prevented the court from having a full compliment. And as a result, not making decisions not because they decided not to take cases or the like, but because they’ve been hobbled in their ability to do so. I think they’re very different.

Lithwick: Brian, I think I want to ask you the question that I get asked. Probably most of all by readers, I wrote a few weeks ago that you know, I thought the president played it straight, he opted to go for, the person with impeccable credentials, that he genuinely believed Republicans could live with. And you know, a lot of his liberal critics—the minute the nomination was announced—really balked at that, and said, this is Obama imputing reasonableness to the other side.

This is how he gets worked every time. You know, he thinks he can do a deal, there’s never a deal. And I’ve heard a lot of flak from progressives who say—and who’ve said, even at the time—that Garland was put up, if the president had nominated a 48-year-old African American woman, there would have been a real rallying around that person. That person’s name would be in the newspaper all summer long. What do you say to those people who just think that the play was noble but wrongheaded?

Deese: Well, I guess I’d say a couple things. The first is, I think the president feels very good about what he did here, and if he had the opportunity to do it over again, he would do the same thing. And I think it does reflect a broader approach on the President’s behalf. And it’s one of the reasons why I’ve been very proud to be able to serve him, is that very early on in this nomination, after Neil let him know that Justice Scalia had passed, and that there was going to be an opportunity to, or an obligation to fill this seat.

I have a view on this. I want to play it straight. I want to find the best possible person for this role, at this time. So that’s point one. But point two is, I also think that this is an example where the best policy and the best decision making process also makes the politics, because one thing that we were able to establish very early on, by dent of Judge Garland—who he is, and his credentials—is that this is a person of unimpeachable qualification, who is absolutely qualified for this position.

And that that’s really important because the conversation subsequent to that has not been about, is President Obama playing politics with the court? And has this now become just an incredible partisan issue that every side is just using as a political football?

And instead, the argument has been, why won’t the institution that is charged by the constitution—why won’t they do their job? And I think that if you look at the polling, it turns out to be the case that that’s a very powerful argument. It also happens to be the argument that I think is the best for the institution at this moment. Particularly during this election, and with all of the uncertainty and anxiety that’s going on in the country.

Having a nominee like Judge Garland out there, and being able to make the case that this is the right thing to do for the country, and it’s the right thing to do for the institution, is important. So, I think that the President feels quite comfortable with the approach. He’s not in any way naive. He’s been at this a long time, and so we’re obviously very attuned to the politics. But I do also think this is a place where good policy also makes good politics.

Lithwick: So if I were to paraphrase—I think what you’re saying is, and you’ll certainly tell me if I’m getting it wrong, but—that more or less by sort of taking the attention off the nominee, beyond the fact that he’s qualified, and rendering him kind of all but invisible, the upside is, we’re forced to have a debate. An institutional debate, and that that is one that you think is either more worth or winnable, is that fair?

Deese: Yeah, the friendly amendment that I would make is that it’s not invisible, it’s unimpeachable. You know, there isn’t any serious argument out there that Judge Garland is unqualified.

And frankly there is wide spread support among progressives and among conservatives that he would be a great Supreme Court justice. And I would also say that his support among progressives is quite strong, so I know the argument that you put forward is one that obviously we have heard. But we have also heard and seen vocally and publically, a lot of support among progressives and among progressive members of the Senate validating that Judge Garland is precisely the kind of nominee that they would be interested in voting for, and that the country would benefit from right now.

Lithwick: I think an awful lot of listeners—on a 1–10 scale of sleeping like a baby and 10 being you know, I wake up at 3 a.m. with my heart pounding—I think that 10 scenario is a Bush v. Gore style meltdown over voting that goes to 4–4 court in November. Where do you each locate yourself on that 10 scale in terms of how much you worry about that and how likely that scenario is?

Deese: Well, like Neil, I get paid to worry about almost every potential downside scenario. This is not one of the ones that is in the top tier or things I worry about.

But I’ll tell you what I do worry a lot about, is that the impulse that led to this unprecedented and historic obstruction is amplified rather than reduced in the country. Because there’s already some talk out there among conservatives that suggest, well, depending on what happens in the election, maybe we could block four for years.

Or maybe we could block for even longer. And I think that whatever the impulse has been to try to stand behind Mitch McConnell’s nonprinciple principle between now and the Election Day. If cooler heads don’t prevail, and if the institution of the senate doesn’t demonstrate that it actually can move forward with a nomination, particularly of somebody who’s as unimpeachable as Garland.

I do worry about what the consequence of that will be. Not, you know, in the very near term but over time. Because we’re at a moment right now in our policies where extremes are amplified, and where there is a tendency to think that things are unthinkable until they occur. And so, I think that this next period is very important and pivotal in terms of avoiding really catastrophic, long-term consequences.

Lithwick: Brian Deese is a senior adviser to President Obama. Neil Eggleston is White House Council and both of them join me to talk about the Merrick Garland nomination. Gentlemen, I thank you so very, very much for your time today.

Deese: Thank you, Dahlia.

Eggleston: Thanks for having us.

Lithwick: This past Tuesday, the Supreme Court heard oral argument in a case testing whether judges can inquire into allegations of pretty extreme racial bias in jury deliberations.

Now for the most part, legal rules prohibit judges from piercing the privacy of these sacred jury deliberations. But in this case, the question for the justices is whether such extreme bias was advanced in these specific jury deliberations that the justices need to just step in. Now joining us to discuss his oral argument on Tuesday, representing criminal defendant Miguel Angel Peña Rodriguez, is Jeff Fisher. He is co-director of Stanford Law School’s Supreme Court clinic, and a law professor at Stanford. And Jeff, I open by saying welcome to Amicus.

Fisher: Thank you so much.

Lithwick: So can you please start by telling us if that is accurate? If the interest that I just laid out there, you know, on the one hand, we have these jury deliberations. We want them to be sacred and private. On the other hand, we want there to be a fair trial. Those are the two interests at stake here?

Fisher: At a high level, yes. the tradition in our country, which we borrowed from England, is to keep jury deliberation, to some degree, private. But I do say to some degree because from its inception, we have always had exceptions to the rule of jury secrecy. Both in terms of limited circumstances where jury testimony has been available to as lawyers say, impeach a verdict. In other words, to look into the validity of a verdict. And also, in the sense that the jurors have always been allowed to talk to their friends, their family, even the press afterwards. So there’s been a limited rule of Jury secrecy.

And that’s one of the reasons why we say that, even though there are significant interests on the other side, they’re not strong enough to override the counter-veiling interests in fighting against racial bias that we identify here.

Lithwick: OK, so let’s step back at the most granular level, and tell us about your client, and what are the facts in his conviction?

Fisher: So Mr. Peña Rodriguez is a horse trainer from Colorado. He was accused in 2007 of attempting a sexual assault of two teenage girls in a bathroom in Colorado, with a horse track.

He has—from the moment these allegations were put forward—denied that it was him, and said that the girls must have identified the wrong guy because of the quick and hurried circumstances under which the events took place. And the suggestive show up the police arranged afterwards. But fast-forward to the important part for our purposes. he went to trial. And after trial, where the jury came back with something of a compromise verdict convicting him of a couple of misdemeanor counts.

His lawyer learned from two jurors who stayed afterwards that another juror in the deliberations—who’s known in court papers as Juror HC, those are his initials—who exhorted the others in the jury room to vote to convict, and I’m going to quote here, because "Mexican men do whatever they want with women." When he was on patrol, he was a former police officer. When he was on patrol, nine times out of 10, Mexican men were guilty of assaulting women because they have bravado, etc.

And then the other important piece of information by way of the facts is, this same juror exhorted the others to disbelieve the others mister Peña Rodriguez of his alibi witness, who testified at trial that he was with him the time of these events. On the ground that the Alibi witness, who’s also Hispanic, was an illegal, and therefore you couldn’t believe anything he said, as it happened, that witness was a lawful permanent resident of the United States, just like mister Peña Rodriguez.

So that’s how the case got set up. And he asked for a new trial on the grounds that his 6th amendment right to an impartial jury had been violated. The Colorado courts have rejected that argument, and that’s why we find ourselves within the supreme court right now.

Lithwick: So Jeff, explain for those of us who just can’t fully understand why it is that there is this long-standing interest in protecting the sanctity in what goes on in a jury room. I mean, I think I understand why we believe that—but can you help unpack why this seems such a crucial, crucial interest?

Fisher: Well, I’ll just tell you what the State of Colorado and the Federal Government say, and there are briefs, which I think summarizes the state interest quite well. There are a few related interests. First, they say that there’s an interest in full and frank discussion inside the jury room. And if juror’s arguments inside the juror room are going to be subject to second-guessing after the verdict comes back, people are going to hold back or somehow refuse to make certain arguments in the jury room.

Next, they say that we have an interest in protecting jurors from harassment after trial. We don’t want lawyers barraging jurors with questions and trying to pluck out of them perhaps manufactured reasons to upset a verdict. And then finally they say that there’s an interest simply in finality, that a criminal case must come to an end sometime.

And once we have a verdict in place, we should be very hesitant to second-guess the legitimacy of that verdict just because of the cost on the system of having a new trial, and that sort of thing.

Lithwick: And correct me if I’m wrong, but that argument, you are then asked to sort of say, as between this evil, of piercing the sanctity of jury deliberations and the other evil, which is having a racially tainted jury, you’re asking the court to pick the lesser of two evils, right? That’s how it’s presented by John Roberts.

Fisher: Well I think that’s how all sides present it. That’s how the government presented it in its brief. Drawing from an old Supreme Court case, evolving a different kind of juror misconduct. And so the court has always set up this situation as evolving the balance, and understanding that one important value is going to have to be sacrificed. And our position in this case is that look, it might be that in certain circumstances, the value of the sanctity of jury deliberations prevails over the interest of an individual litigant, who might be disgruntled.

But when it comes to racial bias infecting the criminal justice system, there’s such an overriding societal interest in ridding our system of that poison that goes back through our history, It’s obviously in the present as well, and is deeply woven into our constitutional structure. So that’s what we say, is that the lesser of evil can never be racism.

Lithwick: Right. So it’s not even a lesser evil, you’re looking at a scope and scale of a problem that is just not comparable.

Fisher: That’s right, and the court has done this. We point out in our papers in an argument that there are other areas of law involving criminal procedure doctrines for the Supreme Court has said that the Constitution requires special attention to the problem of racial bias in the criminal justice system. And sometimes requires special medicine that isn’t available to deal with other kinds of potential problems.

Lithwick: So, John Roberts and I think to about the same extent, Sam Alito in argument… Their big worry is the slippery slope problem, right? If we start looking at jurors’ statements about race, we’re going to start looking at juries’ statements about everything. So let’s listen to a little colloquy between you and chief justice John Roberts.

John Roberts: What about religious bias? Same thing in this case except it’s not—you know, this is how Mexicans act, this is how Catholics or Jews act. So they’re obviously guilty. Wouldn’t that also come under your exception?

Fisher: Well there’s obviously, Mister Chief Justice, frequently an overlap between race and religion, and so for that reason, religion might be viewed very similarly to race -

John Roberts: All right, well that seems to be avoiding the question. Let’s say there isn’t.

Fisher: OK.

John Roberts: Catholics.

Fisher: All the court needs to decide in this case today, is race. That’s all -

John Roberts: No, I don’t think that’s fair. The problem is, once we decide race… This is not an equal protection case. It’s a Sixth Amendment case. So we think invocation of race an impermissible enough I guess, that we will pierce the jury confidentiality—well the next case is going to be religion. So if, whatever we say on race is going to have to have either a limiting principle that makes sense or it’s going to open a broad category of cases.

Lithwick: And not to be out-done, Sam Alito goes on to raise the possibility of policing all jury speech for political correctness. Let’s just have a listen.

Alito: In this case we have a very blatant statement, but let’s consider the standard that now applies on a lot of college campuses—as to the statements that are considered by some people to be racist. What would happen if one of the jurors has the sensibility of a lot of current college students, and thinks that something that’s said in the jury room that falls into one of those categories was a racial comment—

Fisher: We’re talking here, Justice Alito, only about intentional racial bias. So even in equal protection clause—

Alito: First time a person says something that is considered improper on a college campus today, another juror thinks that that shows intentional racial bias.

Fisher: No, I think, as I said, it’s an objective test. Even under the courts, equal protection jurisprudence, the court hasn’t tried to rule out the—

Alito: Yeah, well how will the judge decide, how will the judge decide whether the statement is racist?

Lithwick: So Jeff, I guess I want to ask you, what’s your answer to this question of the slippery slope. All the stuff that’s said in jury deliberations is probably going to offend somebody. And you know, where does it stop?

Fisher: Well I think there’s two different issues that the Justices were asking about. One is, is race different than other sorts of bias?

And the second question is, how do we decide when something, even within the realm of racial bias is sufficiently serious, if the court would need to step in? So on the first question, what we told the court is that racial bias has been treated as a category of its own. Uniquely poisonous for the reason I said earlier in terms of our history, and traditions.

And we’re not saying other forms of identity based bias, like sex bias or sexual orientation bias, or religious bias, aren’t also very serious things. It’s just that however you decide this case doesn’t dictate particular answering in those cases. And then the court should do what it normally does, which is decide one case at a time, and then if it gets a case about a different kind of bias—ask itself whether the same balancing that we’re asking it to conduct here comes out our way or comes out the other way. When it comes to the second question that the justices were asking about, how do you identify racial bias, that one we think isn’t terribly hard because courts do that all the time.

Even in the situation of jury verdicts. If the jury had passed out a note five minutes before the verdict was entered, nobody disputes that the judge could then look in and decide whether racial bias was affecting deliberations. And also in all kinds of other areas law, just think of one example, which is employment discrimination. Courts and juries have to decide everyday whether somebody was discriminated against on the basis of race or something else.

So we’re not saying that it’s an easy question in all cases, but we’re saying this is something that of course customarily do, and even if they’re going to be hard, borderline cases where we say we really have to ask, hmm, is that really racial bias or is it something else? You know, we can tolerate those hard cases, and maybe not getting every one exactly right. What I think we can’t tolerate is a case like this, which is the very worst form of bias. Unabashed, race based negative stereotypes dealing with criminality, and that the court needs to stop.

Lithwick: Jeff, what do you do with the questions that you get that say, “can’t this be cured just by questioning jurors earlier in the process?” There’s a fix to this that doesn’t involving piercing the sanctity of the jury room.

Fisher: Well, that would be lovely if it were true. It is possible for lawyers to fair it out … potentially bias jurors at the outset of cases sometimes. And there’s some other tools available to sometimes catch some situation like this before it blossoms.

But, without getting into all the details, I think any listener whether they know much about law or not, would understand that it can be very difficult to get somebody to admit in advance, you know—raise your hand if you’re a racist. Doesn’t always get every last hand in the room. Even the juror in this case never said, in my experience, here’s what I believe. And so, if you’d have asked this person, you know, are you racist?

I doubt he would have said yes. Even though we can look at these comments and say for ourselves that they’re reprehensible. So, yes, you can get these problems sometimes before they hatch, but not always. And that just brings you back to the question—can the law tolerate a verdict like this, when the safeguards haven’t fared out the problem? And now, afterwards, we know this is what happened. should the law step in and require a new and fair trial, or not?

Lithwick: Jeff, I think that one of the things that really evident from this argument is that Justices Sonia Sotomayor specifically and Elena Kagan look at this as egregious, right? Here’s Sonia Sotomayor saying “of course race is different.”

Sonia Sotomayor: I always thought the most pernicious and odious discrimination in our law is based on race.

Fisher: I agree with that.

Sonia Sotomayor: All right, so why is a rule that says—given the exceptions we’ve recognized since the 1800s—that race is the most pernicious thing in our justice system, why can’t we limit this just to race using principles of the 14th  Amendment as well?

Lithwick: And here’s Elena Kagan saying this is screaming race bias.

Elena Kagan: Here, you have like a screaming race bias in the jury room. We have the best smoke and gun evidence you’re ever going to see about race bias in the jury room, and not withstanding that in these two lines of cases, we’ve said that there need to be special rules to address this prevalent and toxic problem in our criminal justice system. Here, we’re not going to do that. And the question is, why would this category of cases be different from those other two?

Lithwick: Is there a strange way in which the court is very much cut up in the same historic moment we’re all cut up in, which is, some of the justices really want to believe that, you know, we are race blind. Race is not a problem in America, we are post racial, we’ve all gotten over it. And some of the Justices are really, I think, deeply invested in the conversation around race the criminal justice system, and that in some strange ways, we talk past each other. Not only in the sort of public discourse, but right there in the court room?

Fisher: Well, yeah, I’m not going to try and get inside the justices’ heads exactly, but it’s no secret that different Justices on the court think about the problem of race differently. In fact, there was a moment during the state’s piece of the argument where Justice Sotomayor interjected to ask about the idea of political correctness. And even then, I think she acknowledged that different people on the bench had different views on that issue.

Sotomayor: There’s a lot of talk about political correctness or not. And some people think it’s a negative thing, and others think it’s a positive thing. But if an individual is harboring racial bias, isn’t it better to harbor it than infect everyone else’s deliberations on the basis of it?

Fisher: You know, she’s openly admitting there that different people on the bench are thinking about the problem in different ways.

So the court is certainly engaged in a bigger dialogue about race in the criminal justice system, and indeed race in society. That goes far beyond this case, and that’s obviously one of the challenges when you’re up there at the podium is that you’re, in some ways, dipping your toe into a stream that’s moving past you, and trying to participate meaningfully in that conversation that justices are, in many ways, having with each other.

Lithwick: And how much do you in your own head, Jeff, have to tune out the fact that in this completely bizarre election season, you are actually talking about the criminality of Mexicans. And you’re talking about a racially broken criminal justice system. I mean, you’re talking in a deep way about some of the same issues that have been smoked out on the campaign trail. How much are you just saying to yourself, don’t talk about the newspaper, don’t talk about the newspaper when you’re going in and talking about issues that are absolutely front-page concerns right now?

Fisher: Well, that’s a great question, and I think that’s a great challenge. You know, the court doesn’t typically like to have dialogue at argument that is directly ripped from the headlines or is directly responsive to the latest story in the New York Times. But it’s also fool-hearty, I think, to go in there and pretend that this isn’t a topic of intense concern and conversation in our political system right now. So finding that sweet spot really is a great challenge.

And so, I think the Justices probably can take care of that part for themselves. By that part I mean, how this case gets into this moment. And I think the best thing the lawyer can do, is to go in there and situate your argument as sort of appropriately and daftly as possible in the concerns. Not only of the Constitution, and of the law, but also of the moment—without making it so overt.

Lithwick: Jeffery Fisher, represented Miguel Angel Peña Rodriguez at the Supreme Court this past Tuesday, he is co-director of Stanford Law School’s supreme court clinic. And teaches law at Stanford Law. Jeff, thank you so much for joining us on the show.

Fisher: Thank you, it’s always really fun to talk to you.

Lithwick: And that is going to do it for this episode of Amicus. We are eager as ever to hear your thoughts, and now you can find us on Facebook. Yay. At or you can email us the old fashioned way at We love your letters, we love your feedback. If you’re new to this podcast, you should know that all of our past episodes are available for your listening pleasure, on our show page. That’s at And if you’re a Slate Plus member, you’ll also find transcripts there. And if you’re not, well, you should be. And you can always sign up for a free two-week trial at Thank you to the Virginia Foundation for the Humanities, home of our show. Our producer is Tony Fields. Steve Lickteig is executive producer and Andy Bowers is the chief content officer of Panoply. Amicus is part of the Panoply network. Check out our entire roster of podcasts at I’m Dahlia Lithwick, and we’ll be back with you in two weeks with another addition of Amicus.