Brett Kavanaugh's surprise ruling in racial justice case astonishes expert

Supreme Court Justice Brett Kavanaugh is not usually seen as a champion for racial justice issues — mere weeks ago, he joined the majority in a controversial decision weakening the racial gerrymandering protections of the Voting Rights Act. But there's one racial issue on which the Republican justice has proven keen to buck most of his right-wing colleagues, and he proved this on Thursday, with a landmark ruling in Pitchford v. Cain.

Specifically, Ian Millhiser wrote for Vox, Kavanaugh strengthened protections against racial bias in jury selection — and he did so using the same logic he wrote in an essay all the way back in law school on the very same subject.

The case concerned the murder trial of Terry Pitchford in Mississippi, where prosecutors used their so-called "peremptory challenges," or no-excuse passes to strike jurors from the pool, to remove four of the five Black jurors. Removing jurors based on race is one of the few things prosecutors can't use peremptory challenges for.

Under the Supreme Court's longstanding Batson v. Kentucky decision, a defendant can challenge seeming racial discrimination in jury selection, which Pitchford did — but after prosecutors offered race-neutral reasons, like two jurors' criminal history and one juror being a young father, the judge accepted it and allowed the jury to proceed as is.

Writing for the 5-4 majority, Kavanaugh found this wasn't allowed because the judge skipped over the third step of Batson and denied Pitchford a chance to challenge the prosecutors' race-neutral rationales as pretextual. This, Millhiser pointed out, is exactly the process Kavanaugh highlighted the importance of in a note he wrote in law school, titled “Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings.”

Four conservative justices, led by Neil Gorsuch, dissented, Millhiser said, arguing "that Pitchford waived his Batson argument because, while his lawyers raised it in the trial court, they did not provide enough detail about how, specifically, the trial judge violated Batson when they raised this objection." Lawyers generally can't introduce new arguments on appeal — but this is irrelevant, "because, as Kavanaugh explains, defense counsel raised their Batson argument multiple times at trial."

This is not even the first time Kavanaugh has broken ranks and sided with the liberals over racial discrimination in juries; in the 2019 Flowers v. Mississippi decision, Kavanaugh ruled for a death row defendant who had repeatedly been tried and retried with the prosecutor consistently throwing out Black jurors.

The end result of Pitchford, Millhiser wrote, is a rare victory for civil rights at a Supreme Court increasingly hostile to them.

And the fact Kavanaugh echoed logic from his law school days is relevant, he concluded: "In this case, one of the justices appears to have formed an opinion on a politically contentious issue before he fully embraced the broader worldview that he needed to have in order to score political appointments in a Republican administration."