Posted on June 25, 2019

Thomas Dissent Rips into Kavanaugh SCOTUS Opinion – over Racial Politics

Daniel Horowitz, Conservative Review, June 21, 2019


In Flowers v. Mississippi, Kavanaugh wrote a 7-2 majority opinion overturning a sixth conviction of a cold-blooded murderer who was convicted of killing four people 23 years ago. Although he was convicted with evidence beyond a shadow of a doubt, in Kavanagh’s view the jury pool was racist. {snip}

Nobody disputes the fact that the Mississippi courts convicted Curtis Flowers for the murders based on solid eyewitness and physical evidence and that the jury’s verdict itself was impartial. However, Kavanaugh and the other six justices believes that the Mississippi Supreme Court erred in ruling that one particular peremptory (discretionary) strike conducted by the prosecutor against someone in the jury pool at jury selection for the original trial was animated by “discriminatory intent” and therefore entitles Flowers to a seventh trial!

“In sum, the State’s pattern of striking black prospective jurors persisted from Flowers’ first trial through Flowers’ sixth trial,” concluded Kavanaugh in an opinion that was tinged with racial overtones about the suspect being black and the witnesses, prosecutors, and victims being white. {snip}

Justice Thomas shot back in his dissent and noted that not only does he disagree with the underlying premise and recent precedent (in Foster v. Chatman) that such facts would be grounds to overturn a conviction, but he disagrees with the notion that there was discriminatory intent. “{snip}

Confirming that we never should have taken this case, the Court almost entirely ignores — and certainly does not refute — the race-neutral reasons given by the State for striking Wright and four other black prospective jurors. Two of these prospective jurors knew Flowers’ family and had been sued by Tardy Furniture — the family business of one of the victims and also of one of the trial witnesses. One refused to consider the death penalty and apparently lied about working side-by-side with Flowers’ sister. One was related to Flowers and lied about her opinion of the death penalty to try to get out of jury duty. And one said that because she worked with two of Flowers’ family members, she might favor him and would not consider only the evidence presented. The state courts’ findings that these strikes were not based on race are the opposite of clearly erroneous; they are clearly correct.


Thomas accused the court of granting appeal “because the case has received a fair amount of media attention” and charged the majority with replacing careful trial records of the facts with “entertaining melodrama” that will result in “the litigation and relitigation of criminal trials in the media, to the potential detriment of all parties.”

He concluded, “Any competent prosecutor would have struck the jurors struck below. Indeed, some of the jurors’ conflicts might even have justified for-cause strikes.”


Thomas ended his dissent by essentially accusing the majority of ignoring the facts in order to engage in race-based virtue-signaling: “Although the Court’s opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families.”

Justice Gorsuch joined this part of the dissent, which once again demonstrates that we only have two originalists on the court, not five. Yet, still, Thomas stands in a league of his own. He seems to be the only one willing to consistently follow the Constitution. Gorsuch did not join “part IV” of Thomas’ dissent, in which Thomas declares his disdain for the entire premise “that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on the jury,” in Thomas’ words, established in the “sacred” Batson v. Kentucky case.


What’s the bottom line for originalists? We only have one solid originalist on the court. Gorsuch is a very reliable ally of Thomas in most cases, but he often won’t go as far in rolling back existing bad precedent, depending on the issue. Alito has become unreliable on many issues, even as he remains quite solid on others. In this case, he indicated that while he normally doesn’t like overturning such convictions, he felt this case was “likely one of a kind.” And Kavanaugh is the new Roberts.

The Left has successfully enmeshed its entire agenda into racially sensitive jurisprudence, wrapping its abortion, election law, immigration, sexuality, and criminal law agenda in an identity politics juggernaut that only Thomas seems to be willing to confront head-on. If you think for a moment that there exists anywhere near a majority to stop the expansion of bad precedents – especially when they intersect with race-baiting politics – you are living in a conservative dream world.