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It's Procedure vs. Substance in Foster Oral Arguments

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By Casey C. Sullivan, Esq. on November 02, 2015 11:42 AM

This November begins with a bang in the Supreme Court. While the rest of us are still nursing our Halloween candy hangovers, the High Court is hearing two of the year's most interesting cases, Foster and Spokeo.

Foster deals with race and jury selection, specifically whether a prosecutor's use of peremptory challenges to strike all black candidates from a jury is prohibited racial discrimination. (We'll get to Spokeo tomorrow.) So, how'd things go?

What Are We Deciding Here?

The Foster case stems from the prosecution of Timothy Foster for the murder of an elderly woman. In 1987, Foster was tried before an all white jury in Georgia after prosecutors used their peremptory strikes to remove all black candidates. (Peremptory strikes allow parties to remove jurors without stating a reason.) For decades, Foster had argued that those strikes were racially motivated -- the goal was to get an all white jury, the kind of racist jury selection that the Supreme Court forbid in Batson v. Kentucky. The prosecutors have consistently denied that charge. Recently, however, their notes were released and they make a very strong case for purposeful discrimination in striking the jurors.

If the Supreme Court wants a way out of Foster, it got one right at the beginning. The first question, from Chief Justice Roberts, was about which court should even be hearing the case and what they might be ruling on. Foster's habeas appeal was denied (one side says summarily, one says on the merits) by the Georgia Supreme Court, who said there was no basis for review. Are we deciding on the merits or deciding whether Georgia could review the decision? the Justices wondered. Almost all the Justices soon jumped on board Roberts' confusion bandwagon, with Justices Scalia and Kennedy indicating that they'd be happy to certify the question to the Georgia Supreme Court.


A Skeptical View From the Liberal Wing

As to the meat of the matter, several of the Justices seemed less engaged. Foster's attorney was allowed to speak at length about the case and its history, a rarity at oral arguments. The questions that came seemed to divide down traditional lines, with liberal Justices focusing on the Batson violation and conservative Justices on the procedural questions.

Justice Sotomayor seemed to the most eager to view Foster's case expansively, raising the question as to whether certain Batson approaches were legitimate. In many circuits, any legitimate reason for striking a juror can defeat a Batson challenge. "Do you believe that's an appropriate rule," Justice Sotomayor prodded Foster's attorney. No, he very much did not.

The attorneys for Georgia argued that black jurors had been marked in their notes solely to defend against a Batson challenge. Except, Justice Breyer noted, that argument was not made until quite recently. "If that had been his real reason, isn't it a little surprising that he never thought of it" before, Breyer asked. Justice Kennedy, the great swing vote, was skeptical of the argument that prosecutors were "just feeling their way" through the brand-new Batson decision. "Sure it was new; but they're wrong."

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