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Cite as: 579 U. S. ____ (2016)
`
` ALITO, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`CURTIS GIOVANNI FLOWERS v. MISSISSIPPI
`ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
`
`
`COURT OF MISSISSIPPI
`
`
` No. 14–10486. Decided June 20, 2016
`
`
`The motion of petitioner for leave to proceed in forma
`
`pauperis and the petition for a writ of certiorari are granted.
`
`The judgment is vacated, and the case is remanded to the
`
`Supreme Court of Mississippi for further consideration in
`light of Foster v. Chatman, 578 U. S. ___ (2016).
`JUSTICE ALITO, with whom JUSTICE THOMAS joins,
`
`
`dissenting from the decision to grant, vacate, and remand.
`This Court often “GVRs” a case—that is, grants the
`
`petition for a writ of certiorari, vacates the decision below,
`and remands for reconsideration by the lower court—when
`we believe that the lower court should give further
`thought to its decision in light of an opinion of this Court
`that (1) came after the decision under review and
`(2) changed or clarified the governing legal principles in a
`way that could possibly alter the decision of the lower
`court. In this case and two others, Williams v. Louisiana,
`No. 14–9409 and Floyd v. Alabama, No. 15–7553, the
`Court misuses the GVR vehicle. The Court GVRs these
`petitions in light of our decision in Foster v. Chatman, 578
`
`U. S. ___ (2016), which held, based on all the circumstances
`in that case, that a state prosecutor violated Batson v.
`Kentucky, 476 U. S. 79 (1986), by striking potential jurors
`based on race. Our decision in Foster postdated the deci-
`sion of the Supreme Court of Mississippi in the present
`case, but Foster did not change or clarify the Batson rule
`
`in any way. Accordingly, there is no ground for a GVR in
`light of Foster.
`The ultimate issue in Batson is a pure question of fact—
`
`
`
`
`
`
`
`
`1
`
`
`
`
`
`

`
`2
`
`
`
`
`
`
` FLOWERS v. MISSISSIPPI
`
` ALITO, J., dissenting
`
`
`whether a party exercising a peremptory challenge en-
`gaged in intentional discrimination on the basis of race.
`476 U. S., at 93–94. If the party contesting a particular
`peremptory challenge makes out a prima facie case (that
`is, points out a pattern of strikes that calls for further
`inquiry), the party exercising the challenge must provide a
`legitimate race-neutral reason for the strike. Id., at 97. If
`that is done, the trial judge must then make a finding as
`to whether the party exercising the peremptory challenge
`is telling the truth. Id., at 98. There is no mechanical
`formula for the trial judge to use in making that decision,
`and in some cases the finding may be based on very intan-
`gible factors, such as the demeanor of the prospective juror
`in question and that of the attorney who exercised the
`
`strike. Snyder v. Louisiana, 552 U. S. 472, 477 (2008).
`For this reason and others, the finding of the trial judge is
`entitled to a very healthy measure of deference. Id., at
`479.
`
`Foster did not change the Batson analysis one iota. In
`Foster, the Court’s determination that the prosecution
`struck jurors based on race—a determination with which I
`fully agreed, 578 U. S., at ___ (ALITO, J., concurring in
`judgment) (slip op., at 9)—was based on numerous case-
`specific factors, including evidence that racial considera-
`tions permeated the jury selection process from start to
`finish and the prosecution’s shifting and unreliable expla-
`nations for its strikes of black potential jurors in light of
`that evidence.
`In particular, evidence of racial bias in Foster included
`
`the following facts revealed to be a part of the prosecu-
`tion’s jury selection file, which the Court held undermined
`the prosecution’s defense of its strikes: copies of a jury
`venire list highlighting the names of black jurors; a draft
`affidavit from a prosecution investigator ranking black
`potential jurors; notes identifying black prospective jurors
`as “B#1,” B#2,” and “B#3”; notes suggesting that the pros-
`
`
`
`
`
`
`
`
`
`

`
`
`
`3
`
`
`
` Cite as: 579 U. S. ____ (2016)
`
` ALITO, J., dissenting
`
`
`ecution marked “N” (for “no”) next to the names of all
`black prospective jurors; a “definite NO’s” list that included
`the names of all black prospective jurors; a document
`relating to one juror with notes about the Church of Christ
`that stated “NO. No Black Church”; the questionnaires
`filled out by jurors, in which the race of black prospective
`jurors was circled. Id., at ___–___ (majority opinion) (slip
`op., at 3–5). But this overwhelming evidence of race con-
`sciousness was not the end of the Court’s analysis in Fos-
`ter. The Court also discussed evidence that the prosecu-
`tion’s stated reasons for striking black jurors were
`inconsistent and malleable. The prosecution’s various
`rationales for its strikes “ha[d] no grounding in fact,” were
`“contradicted by the record,” and simply “cannot be credited,”
`according to the Court. Id., at ___, ___ (slip op., at 12, 15,
`17). Some of the purported reasons for striking black
`prospective jurors “shifted over time” and could not with-
`stand close scrutiny. Id., at ___ (slip op., at 18). And other
`
`reasons, “while not explicitly contradicted by the record,
`
`[we]re difficult to credit” in light of the way in which the
`State treated similarly situated white jurors. Id., at ___–
`___ (slip op., at 15–17). In sum, the Court’s decision in
`
`Foster relied on substantial, case-specific evidence in
`reaching its conclusion that the prosecution’s proffered
`explanations for striking black prospective jurors could not
`be credited.
`
`In the three cases in which the Court now GVRs in light
`of Foster, what the Court is saying, in effect, is something
`like this. If we granted review in these cases, we would
`delve into the facts and carefully review the trial judge’s
`findings on the question of the prosecution’s intent. That
`is what we did in Foster. But we do not often engage in
`review of such case-specific factual questions, and we do
`not want to do that here. Therefore, we will grant, vacate,
`
`and remand so that the lower court can do—or, redo—that
`
`hard work.
`
`
`
`
`
`
`
`

`
`4
`
`
`
`
` FLOWERS v. MISSISSIPPI
`
` ALITO, J., dissenting
`
`
`This is not a responsible use of the GVR power. In this
`
`
` case, the Supreme Court of Mississippi decided the Batson
`issue. It found insufficient grounds to overturn the trial
`judge’s finding that the contested strikes were not based
`on race. If the majority wishes to review that decision, it
`
`
`should grant the petition for a writ of certiorari, issue a
`briefing schedule, and hear argument. If the majority is
`not willing to spend the time that full review would re-
`quire, it should deny the petition.
`The Court’s decision today is not really a GVR in light of
`
`our factbound decision in Foster. It is, rather, a GVR in
`light of our 1986 decision in Batson. But saying that
`would be ridiculous, because the lower courts fully consid-
`ered the Batson issue this petition raises. By granting,
`vacating, and remanding, the Court treats the State Su-
`preme Court like an imperious senior partner in a law
`firm might treat an associate. Without pointing out any
`errors in the State Supreme Court’s analysis, the majority
`simply orders the State Supreme Court to redo its work.
`We do not have that authority.
`
`I would deny the petition. I respectfully dissent.

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