In rare move, Clarence Thomas actually spoke during a Supreme Court hearing

When question over the role race played in the jury selection in the trial of a man who was sentenced to death, the lone Black justice on the bench uttered a few words. But only briefly

Amanda Washington

Mar 21, 2019

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United States Supreme Court Justice Clarence Thomas who is known for his silence as the high court hears cases, asked a question on Wednesday — for the first time in almost three years, in a hearing over whether or not the capital murder conviction of a Black man could be overturned over racial bias in jury selection.

CNN reports Thomas broke his silence during a hearing concerning an African-American man from Mississippi, Curtis Flowers, sentenced to death for the killing of four people in 1996. Flowers attorney, Sheri Lynn Johnson, believes trial prosecutor Doug Evans had a habit of being racially biased while picking jurors. In Flowers case, during his sixth trial in 2010 (convictions from the first three were thrown out and two ended in hung juries) Johnson argues that Evans intended “to seat as few African-American jurors as he could.”

In this final trial, Flowers was convicted by a majority-white jury and sentenced to death. But in 2016, the Supreme Court remanded the case back to lower courts for review because of allegations of racial bias in jury selection. The Mississippi Supreme Court upheld the conviction, but last June, a Writ of Certiorari, or request for judicial review, was filed with the U.S. Supreme Court and it was granted in November 2018.

The Supreme Court was questioning whether the prosecutor for the sixth time had engaged in being discriminatory against African-American jurors yet again. Most justices were concerned about the prosecutor’s record of eliminating African American jurors during these cases by peremptory challenges, which are ways to eliminate jurors without giving a reason.

But at the end of the hearing, Thomas suddenly spoke, asking Flowers attorney: “Ms. Johnson, would you be kind enough to tell me whether or not you exercised any peremptories … were any peremptories exercised by the defendant?”

“They were,” Johnson replied.

“And what was the race of the jurors struck there?” Thomas asked.

This question was in reference of Flowers’ trial attorney, but his current attorney Johnson replied, “She only exercised peremptories against white jurors. But I would add that … her motivation is not the question here. The question is the motivation of Doug Evans.”

Thomas’ question of all jurors and not siding with Flowers’ counsel comes as no surprise. Three years ago, Thomas was the lone wolf when the Supreme Court ruled against prosecutors in Georgia who had systematically kept blacks off a jury, much like the current case. Thomas believed that case should have stayed with the state judges.

Justice Sonia Sotomayor interjected inferring that Johnson could not have rejected any black jurors because Evans had already removed them from the jury pool.

“She didn’t have any black jurors to exercise peremptories against — except the first one?” she asked “… After that, every black juror that was available on the panel was struck?”

“Yes,” Johnson said.

After that, Thomas was silent again.

It is the first time in three years that Thomas has spoken up in a hearing, although he normally writes opinions on cases, as does every Supreme Court justice. He is known to maintain his silence because he prefers to give lawyers enough time to present their cases.

The longest length of time Thomas has gone without asking a question during a case was a an entire decade from 2006 to 2016, CNN reported.

Thomas is the second Black Supreme Court justice, he succeeded Thurgood Marshall in 1991, who was the first African-American to hold the position.