Posted Wednesday, March 19, 2008, at 4:42 PM
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.