Supreme Court Notebook - Snyder v. Louisiana

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.

In 2008, the Supreme Court heard a case regarding the murder trial of an AfricanAmerican. The jury for that trial – in Louisiana, a state that is more than 30% African American – did not include any African Americans, the prosecutor having eliminated through peremptory challenge all African Americans in the final jury pool. The defendant was convicted and sentenced to death. The Supreme Court was charged with determining whether the prosecutor’s conduct showed impermissible discriminatory intent.

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 19^th 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.”

Don't take my word for it - read the cases yourself.....

Strauder v. West Virginia – 100 U.S. 303 (1879)

Snyder v. Louisiana – 552 U.S. ___ (2008)

UnevenKiel Classic - Cinderella Nation

Cinderella Nation

With the NCAA Tournament upon us once again, I turned to the UnevenKiel archives for this column. This was originally posted on March 21, 2006, and was published in USA Today. And if this isn't enough, click here for the 2007 NCAA tournament column.

Stumbling Into Democracy

A year ago, no one thought we would be here today – in a place where our democracy is being invigorated on a weekly basis by a still undecided presidential primary between two incredible, barrier-shattering candidates. For people of my generation, this is our first real glimpse of national democracy in America.

Beginning in 2000, it has been clear that only the votes of a handful of voters in a handful of states really matter in determining the president of all of the United States. In 2000 and 2004, we had a presumptive nominee for both parties after no more than five states had voted. The rest of the country would get to choose between those nominees at least.

Not exactly. In both 2000 and 2004, the election was not fought in California or Alabama or Massachusetts or Texas. It was fought in a handful of “battleground” or “swing” states. Ninety percent of the election was decided before the campaign even started.

Faced with these realities, it was perfectly reasonable for a citizen to become cynical about the value of voting and the likelihood that there voice could make any difference. In Texas in 2004, what was the point of a vote for John Kerry when all of that state’s electoral votes had already been tallied in permanent ink for George Bush?

Which brings us to the beauty of the primaries this year. Our democracy has been given a shot of Red Bull by a combination of three unexpected characteristics of the campaign that we ought to try to replicate in the future.

First, margins matter. The most intriguing thing about the Democratic delegate dash is that it does not just matter who wins a state, but by how much. The idea, solidified by the electoral college system, that a state that is decided 51% to 49% ought to apportion its influence (winner takes all) the same way that a state decided 80% to 20% is ridiculous and makes a mockery of the very concept of democracy.

Second, politics is local. The delegate rush has also forced the candidates to look not too closely at statewide numbers, but instead to focus on district-by-district results. Because there may be delegates to gain even in a state that is certain to be lost (and even more so because the number of delegates may depend upon margin of victory), candidates are wise to campaign everywhere. Sure, battleground states (or districts) will get more attention, but a system where a Republican candidate has no reason to campaign in California is surely a broken one. I witnessed this first hand in Memphis – although Barack Obama trailed significantly in statewide polls, he opened a Memphis campaign office, carried the county with 70% of the vote and picked up delegates.

Finally, democracy requires participation. The system we all know and loathe discourages participation. Because only votes in early primary and battleground states truly matter, what is the incentive for citizens to invest their votes and more importantly, their mental energy in a campaign? What is the point of even following politics or considering different positions on important issues when the direction of our leadership will be determined primarily by Iowans and Floridians? What the surprising length of the nominating contests has shown is that people will participate and will invest their minds in the political process when they perceive that their votes matter.

There is nothing more troubling to democracy than voter impotence because the (often correct) belief that a vote is meaningless encourages voter apathy and disengagement from governance. Our Constitution is clear that the government serves only at the pleasure of we, the people. Too often that seems to not be the case, but in the last eight weeks, we have gotten a glimpse of several characteristics that can improve our democratic process. Of course, all is not quite perfect – there remains the specter of superdelegates undoing all of the democratic enthusiasm generated by these primaries.

This year, we have stumbled upon a system of national democracy that is maintaining voter engagement across the country and for an extended period of time. As we look beyond November, the country would be well served by building upon this stumbled-upon blueprint to reimagine American democracy for the 21^st century.

What Is Possible

Four years ago, I slumbered through election season. In one party was the incumbent president, with whom I disagreed about nearly everything. In the other party was a campaign among a group of flawed candidates, the winner of which was apparently going to be among the least inspiring (if well qualified) candidates I could imagine. Regardless of John Kerry’s platform and ideas, he had a profound mobilization problem. I desperately wanted a change in the White House, yet I felt no inspiration to donate or volunteer to the Kerry campaign.

This time around, I am feeling plenty of inspiration. I was inspired first by the choice among three candidates I could get excited about (including the candidate I had supported in the 2004 primaries, John Edwards). I was inspired by the prospects for barriers to be broken. I was inspired by a sense that a real opportunity for a change in our national direction had arrived. But most of all, I was inspired by Barack Obama.

By now, we all know the biography, which is remarkable on its own. But it is the vision in our country born by Obama’s biography that really quickens my pulse. Obama is a walking example of the opportunity our country affords its citizens – as he has said, “in no other country is my story even possible.” Perhaps because of the long odds he has already overcome, Obama is inspiring many others to rethink what is possible. It is this ability to re-imagine what our country is and can be that draws me to Sen. Obama and inspires me to begin re-imagining these things for myself. He seems to have awakened a brand new universe of what is possible.

Ultimately, our president has two important and often contradictory duties. The first is to craft an agenda that can be enacted by public policy. This involves negotiation with parties of divergent values and views and can involve fighting to ensure that your own values and views are not compromised into oblivion. To perform this duty, it is conventional wisdom that you need a fighter who can withstand intense criticism to carry the day, but Barack Obama seems to be imagining a different way of doing business. He is imagining negotiation that is not of attrition, but of coalition.

Obama’s first instinct when confronted with an obstacle is not to fight, but to convert. His experience as a community organizer, concerned with tangible progress rather than loyalty to principle, only sharpened that instinct. History does not look kindly upon those who intentionally stand in the way of progress (George Wallace comes to mind) and Obama’s way of building movements rather than fighting battles has the effect of transforming his fiercest critics into mere impediments in the way of a better community. What Obama has imagined is a kind of nonviolent politics that he hopes will transform the nation’s psyche in the same way that the nonviolence of Martin Luther King once did.

The second duty of our president is to connect with citizens and provide a vision for what our nation can be. Under the fighting model of politics, this duty conflicts with the first. In a world where a policy that attracts support of fifty percent plus one is a success, it is inevitable that large segments of the population will be alienated. It is not possible to inspire a nation when you are fighting with half of it.

Performing this duty is where Barack Obama excels. I have had the opportunity to hear him speak in person on one occasion when he came to Memphis on behalf of a candidate for the Senate in 2006. I expected to be disappointed because there was no way he could be as good as I imagined. The candidate he was appearing on behalf of was about as well-liked as a politician could be in Memphis and is a formidable speaker in his own right. Obama was in another league. In an effortless way, he fed and fed off of the electricity in the room to create a belief that anything really was possible. But rhetorical talent is not enough – the vision that Obama tells us is possible is one that is true to our deepest ideals. It is a vision that rises above difference, whether they be racial, geographic, ideological, or otherwise. It is a vision that appeals to the better angels of our nature. But most of all, it is a vision that refuses to limit what is possible.

Barack Obama imagines the type of country I want to live in even if that country does not yet exist. That is the kind of president I can be inspired by.


(Click here to see what I had to say about Barack Obama this time last year)

In the Words of Dr. King

Although commemorations can be wonderful, there is no better way in my mind to celebrate the life and teachings of Dr. Martin Luther King, Jr. than to look back at the words of Dr. King, himself. This year, on the 40^th anniversary of the sanitation worker strike that led to Dr. King’s fatal visit to Memphis, I’ve selected passages from Dr. King’s final speech, delivered in Memphis on April 3, 1968, the night before his death. The speech was entirely extemporaneous and came while a thunderstorm raged outside. Many people know of the prophetic conclusion to this speech, but the entire speech is valuable. Dr. King invokes the concept of “dangerous unselfishness,” in which people will put the plight of others above their own, taking action rather than being “compassionate by proxy.” Here are some of the portions of the speech I found important. I encourage all of you to spend a few minutes finding your own favorite Dr. King passages (a couple of sites with MLK speeches are here and here).

“Something is happening in our world. The masses of people are rising up. And wherever they are assembled today, whether they are in Johannesburg, South Africa; Nairobi, Kenya; Accra, Ghana; New York City; Atlanta, Georgia; Jackson, Mississippi; or Memphis, Tennessee – the cry is always the same – ‘We want to be free...We’ve got to give ourselves to this struggle until the end. Nothing would be more tragic than to stop at this point, in Memphis. We’ve got to see it through. And when we have our march, you need to be there. Be concerned about your brother. You may not be on strike. But either we go up together, or we go down together.”

On the choice each of us faces when we find injustice...
“Let us develop a kind of dangerous unselfishness…[Jesus] talked about a certain man, who fell among thieves. You remember that a Levite and a priest passed by on the other side. They didn’t stop to help him. And finally a man of another race came by. He got down from his beast, decided not to be compassionate by proxy. But with him, administered first aid, and helped the man in need. Jesus ended up saying this was the good man, this was the great man, because he had the capacity to project “I” into the “thou” and to be concerned about his brother.
We use our imagination a great deal to try to determine why the priest and the Levite didn’t stop. At times we say they were busy going to church meetings…and they had to get on down to Jerusalem so they wouldn’t be late for their meeting….But I’m going to tell you what my imagination tells me. It’s possible these men were afraid. You see, the Jericho road is a dangerous road…It’s a winding, meandering road. It’s really conducive for ambushing…And you know, it’s possible that the priest and the Levite looked over that man on the ground and wondered if the robbers were still around. Or it’s possible that they felt that the man on the ground was merely faking. And he was acting like he had been robbed and hurt, in order to seize them over there, lure them there for quick and easy seizure. And so the first question that the Levite asked was, “If I stop to help this man, what will happen to me?” But then the Good Samaritan came by and he reversed the question: “If I do not help this man, what will happen to him?”
That’s the question before you tonight. Not, “If I stop to help the sanitation workers, what will happen to all of the hours that I usually spend in my office every day and every week?” The question is not, “If I stop to help this man in need, what will happen to me?”
“If I do not stop to help the sanitation workers, what will happen to them?” That’s the question.”

The prophetic conclusion...
"Well, I don’t know what will happen now. We’ve got some difficult days ahead. But it doesn’t matter with me now. Because I’ve been to the mountaintop. And I don’t mind. Like anybody, I would like to live a long life. Longevity has its place. But I’m not concerned about that now. I just want to do Gd’s will. And He’s allowed me to go up to the mountain. And I’ve looked over. And I’ve seen the promised land. I my not get there with you. But I want you to know tonight, that we, as a people will get to the promised land. And I’m happy tonight. I’m not worried about anything. I’m not fearing any man. Mine eyes have seen the glory of the coming of the Lord.”

Previous MLK Day posts: 2006 and 2007.