The Roberts Court is sanctioning Mississippi prosecutors who exclude Black citizens to convict Black men. Writing for a 5-4 majority in Pitchford v. Mississippi, Justice Brett Kavanaugh attributes the exclusion of all but one Black juror in Terry Pitchford’s capital trial to “confusion, oversight, an overly hurried jury selection process, or some other cause.” The Court remands the case for yet another round of fact-finding—a palliative, personality-based intervention that treats a documented, multi-decade structural apparatus as an unfortunate bureaucratic “breakdown.”
A fair reading of Kavanaugh’s opinion might argue that the record is genuinely ambiguous about whether the prosecutor struck potential Black jurors for race-neutral reasons, and that remanding for further factual development under Batson v. Kentucky is procedurally standard. That is the most charitable case. The problem is that the record is not ambiguous. It is a patterned exclusion of Black citizens from the very district the Court already cataloged in Flowers v. Mississippi. In 2019, the Court found that District Attorney Doug Evans had systematically purged Black jurors across six trials of Curtis Flowers. Pitchford was prosecuted in the same judicial district, by the same office, producing a jury of eleven white people and one Black person. As MSI has documented in prior reporting on the state’s capital machinery and the Court’s earlier signals in Pitchford’s appeal, the Mississippi Batson evasion is a known, hardened practice. To frame this as a case where “things broke down” is to treat a structural regime as a one-off clerical error. That is not judicial modesty. It is procedural-jurisprudential sabotage.
By identifying the problem as mere “confusion” or “oversight,” Kavanaugh achieves a convenient analytical displacement. Rather than confronting the persistent institutional bad faith that the Court already exposed in Flowers, the majority treats Pitchford as an isolated incident of procedural hygiene, essentially granting the state a do-over rather than imposing the finality that a documented pattern of racial exclusion demands. This is not a breakdown. It is a permission structure. The Court’s Batson jurisprudence now requires states to go through the motions of racial scrutiny while refusing to invalidate convictions when those motions are a transparent charade. The majority’s remand says, in effect: you may have excluded nearly every Black citizen from the jury box, but we will let your lower courts decide whether that was bad enough, on a record they have already excused for two decades.
The dissent makes the architecture even clearer. Justice Neil Gorsuch, joined by Clarence Thomas, Samuel Alito, and Amy Coney Barrett, argues that Mississippi should have yet another opportunity to vindicate a conviction already stained by the same pattern of bias established in Flowers. For that bloc, stare decisis regarding documented racial bias is effectively optional—a preference the state can override whenever a capital sentence hangs in the balance. The dissent clarifies, for any observer still in doubt, that the state’s machinery of death remains protected by this Court’s broad deference to prosecutorial discretion, no matter how demonstrably racist that discretion has been exercised.
And the majority’s response, while nominally a win for Pitchford, is almost equally defective. By invoking a theory of procedural “breakdown” rather than acknowledging the substantive constitutional failure, Kavanaugh writes a new layer of deference into the record. The Court is once again playing the “minimalist” role—granting a narrow reprieve in a case that drew too much public heat, while leaving the underlying doctrinal apparatus of the death penalty and the systemic exclusion of Black jurors in Mississippi fully operational for the next defendant to face the same prosecutor.
The Fourteenth Amendment guarantees that a citizen cannot be excluded from jury service because of the color of her skin. The affirmative posture a court committed to that guarantee should adopt is to treat the Batson framework as a substantive equal-protection command—requiring automatic reversal when a pattern of racial exclusion is documented, rather than passing the standard back through passive review and procedural evasion by the very state courts that have repeatedly excused it. Until then, the Court is not enforcing the Constitution. It is laundering a racist practice through the language of procedural hygiene, and calling the result justice.