Convictions: Slate's blog on legal issues

Colorblindness in Snyder?

[by Rich Ford]

Diane,

Here's a take on Snyder and words left unsaid:  Justices Roberts' and Alito's position in Snyder is perfectly consistent with a strict and rigorous colorblindness interpretation of the equal protection clause-- i.e. the same position they both adopted last term in Parents Involved in Community Schools v. Seattle.  The equal protection clause is now as likely, if not more likely, to block race conscious efforts to remedy racial injustice as it is to block racial discrimination as conventionally understood.  And so ironically, making it difficult to establish an equal protection violation-- once  a conservative position--may soon be in the way of conservative efforts to reverse and prohibit race conscious remedial policies.  So, if the Court can parse the record for evidence of discrimination in preemptory strikes can it also, say, parse the record for evidence of race consciousness in a selective university's admissions decisions or a local government's decision to award a contract to a minority owned business?   This isn't to say their positions were cynical and strategic, but Supreme Court Justices do decide cases with weight of precedent in mind.  I'm just suggesting that the ideological terrain of equal protection jurisprudence is trickier than it once was and it may be that we're simply looking a reorientation of conservatism in Roberts and Alito.  Could this explain why so much was left unsaid?

What Snyder did not say about race

by Diane Marie Amann

Today the issue of race divided conservatives in America.

In Snyder v. Louisiana, the U.S. Supreme Court reversed defendant's capital conviction for murder of his estranged wife on the ground that the exclusion of a single potential juror -- an African-American student teacher -- violated the Equal Protection Clause of the 14th Amendment to the Constitution.  The 7-2 judgment is remarkable.  That's not only because the majority included 3 persons typically identified with the Court's conservative wing: Justice Samuel A. Alito, Jr., the author; Chief Justice John G. Roberts, Jr.; and Justice Anthony M. Kennedy.  Also remarkable is the brevity of the opinion.  Attorneys who have litigated Batson motions, as I have, no doubt will remark on the quick certainty with which the Court concluded that there had been a sufficient showing that the state acted "in substantial part by discriminatory intent" (pp. 12-13) simply by comparing the treatment of the student teacher with that of 2 white veniremen.

The Court left unsaid what well may be a prime source of that quick certainty: Snyder had come to be known as the O.J. revenge case, a case in which the prosecution struck not 1 but all potential jurors of African-American heritage.  It was a case in which the prosecution alluded in his penalty-phase closing to the then-recent acquittal of O.J. Simpson on charges of murdering his ex-wife, and suggested to jurors that they should not let the defendant before them "get away with" it.  All 3 of the members of Louisiana's highest court who dissented from affirmance of the conviction cited this overall context -- as 1 put it, "this injection of racial issues, and the fact that the prejudicial arguments were made to an all-white jury" (942 So.2d 484, 501) -- as evidence that exclusions of potential jurors were racially motivated.

The U.S. Supreme Court is to be commended for what it did in Snyder.  But on this day when America ponders Sen. Barack Obama's profound unmasking of the issue of race, it seems proper to question the decision of the Court to leave so much unsaid.

(prior Convictions posts on Obama's speech here and here)