Justice Clarence Thomas, the court’s only African-American member and lone Southerner, was breaking a three-year silence at high court arguments with a couple of questions in a case about racial discrimination in the South.
The case involves a black Mississippi death row inmate who’s been tried six times for murder and a white prosecutor with a history of excluding African-Americans from juries by using peremptory strikes, for which no explanation is required. The prosecutor excused five African-Americans from the jury in inmate Curtis Flowers’ sixth trial.
“Would you kindly tell us whether you exercised any peremptories?” Thomas asked Sheri Lynn Johnson, Flowers’ Supreme Court lawyer.
If so, Thomas wanted to know, “What was the race of the jurors?”
In Flowers’ sixth trial, Johnson said, Flowers’ lawyer excused three white jurors.
Even Thomas’ conservative colleagues seemed to favor Flowers in the course of the hourlong session, and the justice’s questions seemed intended to show that both sides can be conscious of race in jury selection.
In a similar case from Georgia in 2016, Thomas was the only dissenter when the court ruled for a black Georgia inmate. Thomas wrote then that the Supreme Court should not second-guess a trial judge who initially considered and rejected racial discrimination claims.
Before Wednesday, Thomas’ last questions were in a case about the reach of a federal law that bans people convicted of domestic violence from owning guns. Those were his first questions in 10 years.
He is the only justice who does not regularly pose questions from the bench. Thomas has explained that he relies on the written briefs and thinks his colleagues interrupt lawyers too often. As in 2016, he only piped up after everyone else was done.