An important update on the Curtis Flowers case (the petitioner we highlighted in September): two weeks ago, the U.S. Supreme Court agreed to hear the case. While this is an encouraging development—on the perhaps not-so-safe assumption that the Court will actually reach the right conclusion and reverse Mr. Flowers’s conviction—it is vital to keep the situation in perspective. As we noted in our earlier post, “[t]here are not many cases like Flowers. The record is undeniable. Racism pervades the mind-boggling six trials Mr. Flowers has endured.” This means both that Mr. Flowers has a good chance of prevailing, but also that this case may not set much of a precedent. Indeed, the question the Supreme Court asked the parties to brief is an unusual and narrow one: “whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky.” (By the way, Batson was decided in 1986. The Mississippi Supreme Court has had over 30 years to figure it out!) Considering that the U.S. Supreme Court often professes it does not engage in mere error-correction, this Court-generated question positions Flowers as a rare and telling counterpoint.
More broadly, the Supreme Court’s Batson enforcement strategy has been limited and peculiar. Rather than finding a way to make sure that prosecutors around the country do not discriminate against prospective jurors on the basis of their race, the Court instead only takes the most egregious cases to correct the most obvious injustices and it ignores dozens of other cases which show that real enforcement is what society needs. This reality was on display two years ago when the Court decided Foster v. Chatman; as Imani Gandy explained, “the facts of Foster are so egregious that it is unlikely to have any effect outside of this one case.” Flowers is more of the same. While it is vital for the highest Court to address the horrendous racial bias and misconduct apparent in Flowers, the fact that such behavior can happen in this country is a sure sign that there are other glaring problems that require judicial attention. Pulling the weeds does little if you do not pull out the roots.