In 1879, the Supreme Court heard a case regarding the murder trial of a former slave. The jury for that trial was, predictably and by law, made up entirely of white men. The defendant was convicted and sentenced to death. The Supreme Court was charged with interpreting the constitutional amendments adopted in the wake of the Civil War to determine whether American citizens, including emancipated slaves, had a right to a trial with a jury untainted by racial discrimination.
Justice William Strong answered with a rhetorical question: “How can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal protection?”
On the grounds that the state had impermissibly excluded black citizens from serving on juries, the Court vacated the defendant’s conviction and remanded the case.
Fast forward nearly 130 years from that step forward for civil rights – a time period that has included many steps forward in American race relations. Last week, the Supreme Court offered up evidence that steps forward in American race relations are small and often followed by steps back. See if this sounds familiar.
Obviously, the two cases are different – one is a challenge to a deliberately discriminatory state law, the other a challenge to an arguably discriminatory state prosecutor – but there were sufficient echoes in the contemporary case to give even today’s conservative Supreme Court pause.
Writing for a 7-2 majority, Justice Samuel Alito described the prosecutor’s allegedly non-racial reasons for dismissing one of the potential African American jurors as “suspicious.” The prosecutor’s non-racial explanation for the dismissal of that juror, a college student concerned about missing too much school, was that he looked nervous and might be eager to end the deliberations quickly by pushing for the defendant’s acquittal or conviction for a lesser crime so that he could back to school. To ease the prosecutor’s – and the juror’s – concern, the trial court contacted the juror’s dean who assured them that if the student were away only a week – as anticipated by the prosecutor himself – then jury service would not be a problem. The prosecutor was unconvinced and struck the juror.
What made this conduct “suspicious” to Justice Alito was that the prosecutor did not show similar concern for potential white jurors who likewise expressed the desire to avoid prolonged absence from employment or other responsibilities. The prosecutor’s “pretextual explanation naturally gives rise to an inference of discriminatory intent,” Alito wrote, concluding that the trial court committed a clear error in allowing the student to be dismissed.
Comparing these two cases, there are signs both of the significant progress that has been made on the race front and of the often subtle ways the race problem continues to manifest itself today. No longer are there state laws that exclude entire classes of citizens from the full benefits of citizenship, yet there remain juries without black members that convict black defendants. No longer must the Supreme Court deem obviously discriminatory conduct to be against the Constitution, yet the Court continues to confront cases of less blatant, though no less pernicious, discrimination.
In 2008, no less so than in 1879, courts and citizens alike continue the project of, as Justice Strong wrote in the 19th century, “securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy.”
Strauder v.
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