What Justice Thomas Gets Right About Batson

Abstract

Justice Thomas’s dissent in Flowers v. Mississippi has been met with disdain in the popular press. In the New Yorker, Jeffrey Toobin declared Justice Thomas’s opinion “astonishing”; another commentator described the dissent as “too wacky, too hostile, and aggrieved to merit a response.” To be sure, the dissent—which advocates a radical overhaul of how we police racial discrimination in jury selection—is underwhelming in conspicuous ways. But Justice Thomas’s dissent also gets right many things about the Batson doctrine and race in the courtroom that the Court’s liberal wing has proven loath to confront. Those who cheer the result in Curtis Flowers’s case—full disclosure: I am one—should not so blithely dismiss Justice Thomas’s provocations.

Keywords: race, discrimination, jury selection, Batson, Curtis Flowers, Clarence Thomas