Chief Justice John Roberts finally found an example of racism that even he won’t tolerate.
Roberts is the author of the Supreme Court’s decision gutting a key provision of the Voting Rights Act — on the grounds that there simply isn’t enough racism in a nation that recently elected Donald Trump to justify such a law. He recently voted to reinstate a North Carolina law that was designed by the state legislature to impose increased burdens on many African American voters.
And yet, Roberts is also the author of the Supreme Court’s 6–2 decision in Buck v. Davis, which held that the racist circumstances that led to Duane Buck’s death sentence cannot permit the state of Texas to execute this man.
In 1995, Buck shot three people and killed two, including his ex-girlfriend. At his murder trial, however, Buck’s own attorneys introduced evidence suggesting that Buck was likely to be dangerous in the future because of his race. A defense witness, Dr. Walter Quijano, testified that “minorities, Hispanics and black people, are over represented in the Criminal Justice System.” Quijano also authored a report stating that, as a black man, Buck had an “increased probability” of committing acts of violence in the future.
This report mattered because, in Texas, an offender cannot be sentenced to die unless the jury determines that offender is likely to “commit criminal acts of violence that would constitute a continuing threat to society.” So the implication of Quijano’s testimony and report was that African Americans are inherently more deserving of a death sentence than white people.
In reality, there was good reason to believe that Buck was not likely to be violent if he received a life sentence instead of being sentenced to die. Buck had behaved well while incarcerated, and, while he did have a history of violence even before he killed his ex-girlfriend, his violent incidents arose “within the context of romantic relationships with women,” something he was unlikely to engage in while behind bars.
Roberts’ opinion in Buck concludes that the death row inmate received unconstitutionally ineffective assistance of counsel because of his lawyer’s decision to present Quijano’s testimony and report to the jury. “Counsel knew that Dr. Quijano’s report reflected the view that Buck’s race disproportionately predisposed him to violent conduct; he also knew that the principal point of dispute during the trial’s penalty phase was whether Buck was likely to act violently in the future,” and yet counsel presented Quijano’s statements about black people being dangerous anyway.
Indeed, Roberts explains, Quijano’s racist evidence was especially prejudicial to Buck because it rested on a trait Buck cannot change.
The jurors were not asked to determine a historical fact concerning Buck’s conduct, but to render a predictive judgment inevitably entailing a degree of speculation. Buck, all agreed, had committed acts of terrible violence. Would he do so again?
Buck’s prior violent acts had occurred outside of prison, and within the context of romantic relationships with women. If the jury did not impose a death sentence, Buck would be sentenced to life in prison, and no such romantic relationship would be likely to arise. A jury could conclude that those changes would minimize the prospect of future dangerousness.
But one thing would never change: the color of Buck’s skin. Buck would always be black. And according to Dr. Quijano, that immutable characteristic carried with it an “[i]ncreased probability” of future violence.
At times, while reading Roberts’ opinion in Buck, it is difficult to believe that it is authored by the same man who views African Americans’ right to participate as equal partners in the American democracy with such contempt. Quijano’s testimony was especially harmful, Roberts writes, because it “appealed to a powerful racial stereotype — that of black men as ‘violence prone.’”
In response to a lower court’s determination that Quijano’s racist statements did not matter much because they were only a small part of the evidence introduced in the case, Roberts is curt: “some toxins can be deadly in small doses.”
Buck is the second case in as many years where Roberts authored an opinion siding with a death row inmate sentenced under racist circumstances. In last year’s Foster v. Wallace, the Supreme Court sided with a black death row inmate convicted after prosecutors excluded African Americans from the jury.
So what should one make of this? Why is the Chief Justice, who has the power to choose which opinions he wants to write, assigning himself relatively cut-and-dry cases involving race discrimination against death row inmates? Is he moderating on the subject of race?
Probably not. In reality, Roberts’ approach to race has always come from a place of naivety. He views the law’s mere acknowledgement that race could matter as an unpardonable sin — whether this sin manifests as affirmative action, a special restriction on states with a history of race discrimination, or an effort to treat black defendants differently than white ones.
“The way to stop discrimination on the basis of race,” Roberts wrote in an opinion arguing that two school districts’ efforts to desegregate their public schools are unconstitutional, “is to stop discriminating on the basis of race.”
His opinion in Buck is entirely consistent with this view. “Our law punishes people for what they do, not who they are,” Roberts writes. “Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.”
Perhaps Roberts has taken an interest in cases like Foster and Buck because he wants to demonstrate to racial justice advocates that they too have something to gain from color-blindness.
Certainly, Duane Buck benefited from Roberts’ approach. But that doesn’t change the fact that millions of black voters will not.