Excerpted From: Daniel S. Harawa, Lemonade: A Racial Justice Reframing of the Roberts Court's Criminal Jurisprudence, 110 California Law Review 681 (June, 2022) (405 Footnotes) (Full Document)


DanielScottHarawaIn the past few years, the Supreme Court has handed down several criminal law opinions with racial justice underpinnings. Starting with Buck v. Davis in 2017, through Ramos v. Louisiana in 2020, the Court issued opinions that denounced racism in the administration of justice, explored the history of criminal laws being used as tools of racial subordination, rejected harmful racial stereotypes, took a prosecutor to task for discriminatorily wielding his power, and emphasized courts' duty to combat the influence of race in criminal adjudications.

These recent opinions were a marked tonal shift for the notoriously colorblind Roberts Court. Before the October 2016 Term, the Roberts Court did not address claims of racial discrimination or even discuss race in the criminal context save for a handful of Batson cases. Even then, the Court's analyses were sanitized to the point where one would be excused for forgetting Batson is supposedly a critical tool for solving the entrenched problem of prosecutors discriminating against Black people during jury selection. That the Roberts Court issued five opinions addressing racism in the criminal legal system in a three-year span is remarkable.

Before this rash of decisions, the Supreme Court consistently erased race in criminal cases--a practice predating the Roberts Court. And while the Roberts Court has advanced a muscular vision of post-racialism across other jurisprudential areas, it has cultivated its post-racial criminal jurisprudence by pretending race does not exist. Scholars have long criticized the Court for ignoring race and have explored the doctrinal and real-world harms that flow from this colorblind jurisprudence. They have explained that, by ignoring race, the Court has crafted doctrine that benefits White people while burdening people of color, expanding police power over Black and Brown communities, and fueling our carceral state. And they have documented the consequences of the Court's colorblindness, including that the decisions “facilitate[] racial profiling,” lead to “dramatic inequalities in police attention and harassment of minorities,” and “promote police use of implicit bias to discriminate against those living in disadvantaged [B]lack neighborhoods.” As poignantly put by Professor Devon Carbado, the Supreme Court's jurisprudence “enables police violence against African Americans (at the front end) and makes it difficult for them to challenge state violence when it has occurred (at the back end).” This, scholars contend, stems from the Court's silence on issues of race in criminal law.

Rather than focusing on how the Court has erased race in its criminal cases, this Article explores the implications of the Roberts Court's newfound racial awareness in five recent cases:

• Buck v. Davis, where the Court granted relief to a Black man sentenced to death in part because his own expert testified that Black people are more likely to be dangerous.

• Peña-Rodriguez v. Colorado, where the Court held that defendants can probe jury deliberations for evidence of racial bias despite jury deliberations generally being secret.

• Timbs v. Indiana, where the Court held that the Eighth Amendment's Excessive Fines Clause is incorporated against the States, and in so holding, explained how financial punishment was used post-slavery to subjugate Black Americans.

• Flowers v. Mississippi, where the Court granted a new trial after finding that the prosecutor discriminated during jury selection by striking forty-one of forty-two Black prospective jurors over the course of six trials.

• Ramos v. Louisiana, where the Court held that the Sixth Amendment requires guilty verdicts for state criminal trials to be unanimous, and in the process, explored the racist history of nonunanimous jury provisions.

While racial justice advocates can rightly take a negative view of this line of cases, viewing them as lemons, this Article recasts the cases as tools in the fight for racial justice, exploring how these lemons can be turned into lemonade.

Start with how the cases are lemons. First, when the Court discusses historical racism, it only tells half the story. In its opinions, the Court does not try to connect past racist practices to present racial disparities. This oversight risks leaving the false impression that racism is a relic and hinders the fight for racial justice because addressing racism requires a reckoning with its roots. Second, by adjudicating race-based claims only when the racism is explicit rather than addressing claims with subtle or more nuanced forms of racism, the Court is making clear what actionable racism is, and by implication, what actionable racismisn't. These cases demonstrate that the Court has not grappled with systemic racism. It has not fully acknowledged the role of implicit bias in the criminal legal system. In short, the Court has not adapted its doctrine to account for the run-of-the-mill yet equally noxious racism that exists today. By only dealing with the most grotesque racism, the Court seems to hew to a post-racial worldview, where society has mostly moved past race save for a few bad apples. To a critical thinker, the cases could be discarded as window-dressing.

But these lemons might also be made into lemonade. While it is true that the Court's more recent cases addressing race have their shortcomings, the Court's openly talking about racism in the criminal context can be by itself important. Remember, the Roberts Court declared early on that it was adopting a minimalist role in the fight against race-based discrimination when it proclaimed that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” This same Court's more candid discussions of racism and its claimed commitment to addressing it have to mean something.

Rather than dismissing these recent cases as having limited use, racial justice advocates, especially those forced to operate in the criminal legal system as it stands, should take the Court at its word. The cases teach that history and context matter. Those with power must be held to account. Long-standing traditions must fall in the face of racism. There is a need to be vigilant against racial stereotypes influencing the criminal process. And critically, courts and other powerful actors must play a vital role in rooting out and eradicating racism in the criminal legal system.

The Article makes this argument over four parts.

Part I not only describes the Court's recent race-aware cases, but also contextualizes them. It explains that these decisions coincide with the rise of the Black Lives Matter Movement and come on the heels of Justice Sotomayor publicly calling out her colleagues for ignoring race. While there may not be a direct causal link between the rise of Black Lives Matter and the Court's recent cases, this context can be useful in framing the narrative around these decisions.

Part II then looks at how these cases should rightly be viewed as lemons. It explores how the cases are confined to classic racism and therefore can reasonably be dismissed as being of limited use to any meaningful progress. The limited nature of the cases is only reinforced after taking a broader look at the Court's aggressively post-racial docket.

Part III then turns the lemons into lemonade, recasting the cases as helpful tools in the fight for racial justice. It proposes three uses of the case law. One proposal is litigation based, suggesting specific arguments that defendants in other criminal law contexts can make based on this line of cases. The next is policy focused, repurposing the cases as tools for the racial justice movement, where advocates can wield the cases as they push courts, prosecutors, and policymakers to reevaluate how the criminal legal system perpetuates racial subordination. The final proposal is discourse based, harnessing the rhetorical power of this line of cases and maintaining that they can be used as a springboard to more robust discussions about race in the courtroom and beyond, a necessary prerequisite to a more racially conscious criminal jurisprudence.

Finally, Part IV grapples with the important question of why bother to make lemonade? Progressive legal scholarship has largely given up on the courts' (especially the Supreme Court's) ability to address the racism endemic to the carceral system. In the tradition of resistance lawyering, this Article breaks this trend, insisting that there is mileage to gain from this recent line of cases for those interested in racial equity. That is not to downplay the need for a more radical reimagination of the system. But it is to say that, in addition to big-picture rethinking, the millions of Black and Brown people who are arrested each year need some solutions now. Given the legal community's, including the courts', recent commitments to addressing racism in the criminal legal system in the wake of George Floyd's murder, the Supreme Court's recent race-awareness can provide a jurisprudential opening for judges, prosecutors, and advocates looking to actualize that commitment. In the spirit of Professor Derrick Bell, even if the interventions proposed in the Article may ultimately prove futile, this Article is grounded in “the unbelievable conviction that something must be done, that action must be taken.”

In the end, this Article seeks to shift the narrative and find hope in a body of jurisprudence that, for racial justice advocates, has been perpetually filled with misery. The Article looks to find a crack in the Roberts Court's post-racial jurisprudence to exploit, and hopefully widen, as the struggle for racial equity continues. In so doing, the Article is grounded in the reality that advocates within the legal system often have to work with what they've got.

For too long, the Supreme Court's criminal jurisprudence has perpetuated a system of racialized injustice. This Article reclaims the case law and uses it in the fight for racial justice and equity.

[. . .]

By deploying the Supreme Court's case law to advance racial justice, the Article seeks to find gaps in the Roberts Court's post-racial precedent. Using the Court's words, the Article proposes using the cases to peel back the veneer of impartiality and expose the racist underpinnings of the system in everyday criminal proceedings when it matters most. It suggests wielding the cases to motivate powerful actors within the system to mitigate the racial harms the system perpetuates. And it presents ideas on how the cases can move the law in a positive direction to help the Black and Brown people forced to navigate the system each day.

Beyoncé's magnum opus Lemonade reminded the world that generations of Black people, especially Black women, have been handed lemons but have managed to make lemonade. This Article lives in that tradition.

Associate Professor of Law, Washington University in St. Louis.