In February of 2006, a nearly all-white jury in Grenada, Miss., sentenced Terry Pitchford to death for his participation in a robbery that turned fatal. Eric Bullins and Terry, two Black teens, were robbing a store when Eric shot and killed the owner. Eric was 16, so Mississippi couldn’t pursue the death penalty in his case, but they could for Terry, who was 18 at the time of the murder. On Thursday, the Supreme Court, in a 5-4 decision written by Justice Brett Kavanaugh, ruled that Mississippi’s handling of jury selection in Terry’s capital trial violated Batson v. Kentucky, the landmark case prohibiting racial discrimination against prospective jurors. The prosecutor had struck four Black prospective jurors, leaving a jury with only one Black juror in a county that was 40 percent Black.
All Americans benefit from the Court’s decision on Thursday. Every person has a constitutional right to be considered to serve on a jury — one of the highest civic duties, second only to voting — and people accused of a crime have the right to be tried by a jury representative of their peers. The Supreme Court’s ruling on Thursday takes an important step in upholding the existing protections against race discrimination in jury selection. And yet the decision highlights just how much work still needs to be done. Existing law still allows for the consideration of race in jury selection, which all too often leads to discrimination against prospective minority jurors, as it did in Mr. Pitchford’s case.
The court has recently ruled out the consideration of race in other contexts like college admissions — as decided in Students for Fair Admissions v. Harvard — and voting rights — as decided in Louisiana v. Callais. The court has explained the shift toward a “race blind” approach in those other contexts as a way to reduce discrimination. To be sure, there are reasons to question this new approach in a racialized society like ours. But if that is the court’s stance, it should be applied to jury selection, too, where the stakes can be much higher and the consideration of race can be even more clearly linked to discrimination.
Pitchford was the Supreme Court’s first case to address race discrimination in jury selection since the court’s 2023 decision in the Harvard case, which ended affirmative action in college admissions. There, the Supreme Court appeared to take a new approach to what qualifies as unconstitutional race discrimination, finding that the “race conscious” college admissions processes used by Harvard and the University of North Carolina violated the 14th Amendment’s guarantee of “equal protection” to all people, regardless of race.
Harvard and U.N.C. both admitted to considering race as a factor in their admissions processes. They argued that race was only used as a “plus” for a given applicant — never a negative — in line with the Supreme Court’s rulings in earlier affirmative action cases.
The court rejected that argument. If race was used as a plus for some applicants, the court reasoned, then it necessarily operated as a minus for other applicants. There is a finite number of spots at elite colleges like Harvard and U.N.C. Since college admissions is a zero-sum process, if one applicant is given a boost into the admit pile because of race, every applicant left behind is worse off.
Following the court’s decision, universities had to stop considering the information obtained from check boxes where applicants could indicate their race. The effective elimination of these check boxes suggests that universities understood the decision to ban the consideration of race altogether — no matter how minor.
If this is the court’s standard, then race discrimination runs rampant in jury selection. The equivalents of check boxes not only persist but judges have even signed off on their usage. In 2023, after the court’s decision in the Harvard case, a district court in Texas held that a prosecutor’s list of jurors was perfectly fine, since the markings supposedly helped the prosecutors keep track of the potential jurors. These lists suggest that the prosecutors were purposefully tracking race when deciding whom to seat and whom to strike. The Supreme Court’s standard for race discrimination in jury selection — unlike in college admissions — allows for some consideration of race, as long as that consideration is not “motivated in substantial part” by discriminatory intent.
In the Pitchford case, the trial judge went even further, implicitly allowing lawyers to consider race as the basis for a strike as long as the prosecutor could name at least one “race-neutral reason.” In the original trial, the defense lawyer objected when the prosecutor struck four prospective Black jurors. The prosecutor then provided “race neutral” reasons for each strike, such as returning late to court from lunch. Without providing the defense an opportunity to meaningfully respond, the judge found the reasons to be “race neutral” and removed the prospective jurors. This would be akin to allowing Harvard admissions officers to consider an applicant’s race as long as they could identify one non-race-related reason for rejecting the applicant.
The court’s decision on Thursday took a step in the right direction, upholding the current jury selection standard. But more needs to be done to align discrimination protections in this area with those in college admissions — both governed by the constitutional promise of equal protection under the law. The court has read that promise to protect high schoolers applying to elite colleges, and that very same promise serves as the bedrock of criminal trial rights. No one has a right to be admitted to Harvard, just as no one has a right to be seated on a jury. Still, every person has a right not to be denied a spot at Harvard or a seat on a jury because of his or her race.
If anything, the stakes are higher in a criminal trial than in college admissions. Discrimination in jury selection undermines people’s right to a fair trial when their life or liberty is on the line. Surely, high schoolers applying to elite universities should not get more protection than those facing the deprivation of life or liberty. Mr. Pitchford’s legal saga began when he was the very same age as the students around the country applying to college. Furthermore, racially biased strikes prevent members of the public from participating in an important civic duty. Just as the right to vote is carefully guarded, the right to be considered to serve on a jury is worthy of extra protection.
Avital Fried is a graduate of Yale Law School and will be clerking for a federal judge next year. She earned a doctor of philosophy from Oxford, where she was a Marshall scholar.
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