Scholars have argued that the Supreme Court, under the leadership of Chief Justice John Roberts, has applied a color-blind analysis to the law, churning out opinions that privilege white people, reinforce police power, and fortify carceral systems.
Five recent court cases that seemingly acknowledge — and seek to correct — racism ingrained in the criminal justice system should have signaled that the Roberts court was shaking off its flawed, colorblind framework, argues Daniel Harawa, an Associate Professor of Law and Appellate Clinic Director at Washington University in St. Louis.
While the opinions the court delivered in Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and Ramos v. Louisiana, marked a “tonal shift” in the Roberts court, they failed to “connect past racist practices to present racial disparities.”
By only addressing overt racism and failing to contend with centuries of codified racism, these decisions could be read as “window-dressing,” Harawa wrote.
But while acknowledging the “shortcomings” in the court’s recent cases addressing race, Harawa argued that “the Court’s openly talking about racism in the criminal context can be by itself important.”
He points to the Roberts Court’s own comments about race as evidence of the recent cases’ significance.
“Remember, the Roberts Court declared early on that it was adopting a minimalist role in the fight against race-based discrimination when it proclaimed that ‘the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,’” he wrote in the study, recently published in the California Law Review.
“This same Court’s more candid discussions of racism and its claimed commitment to addressing it have to mean something.”
Take, for example, Flowers v. Mississippi, a 2019 case in which the Court granted a new trial to Curtis Giovanni Flowers, who was convicted of murdering four people in 1996, after finding that the prosecutor discriminated during jury selection.
The prosecutor, Doug Evans, had struck 41 of 42 Black prospective jurors over the course of six trials.
But the hard-to-ignore discrimination –in the sense of racial profiling — may demonstrate the limited scope of the Roberts court’s recent rulings.
“By only dealing with the most grotesque racism, the Court seems to hew to a post-racial world view, where society has mostly moved past race save for a few bad apples,” Harawa writes.
Situated in a contemporary context, however, the case could also be considered a legal victory.
Flowers v. Mississippi, as well as the four other recent decisions about which Harawa writes, coincided with the mainstreaming of the Black Lives Matter movement. and overlapped with Jujstice Sonia Sotomayor’s criticism of her colleagues for ignoring race in their legal analyses.
However partially or superficially these recent opinions address race, Harawa recasts them as “helpful tools in the fight for criminal justice.” He argues that the case law could become the foundation for litigation, policy and rhetoric that strives for “a more racially conscious criminal jurisprudence.”
“Rather than dismissing these recent cases as having limited use, racial justice advocates, especially those forced to operate in the criminal legal system as it stands, should take the Court at its word,” he writes.
“The cases teach that history and context matter. Those with power must be held to account. Long-standing traditions must fall in the face of racism.
“There is a need to be vigilant against racial stereotypes influencing the criminal process. And critically, courts and other powerful actors must play a vital role in rooting out and eradicating racism in the criminal legal system.”
The study, entitled “Lemonade: A Racial Justice Reframing of The Roberts Court’s Criminal Jurisprudence,” can be downloaded here.
Eva Herscowitz is a TCR contributing writer.