In 2019, Justice Brett Kavanaugh led the Supreme Court in siding with Curtis Flowers, who was on Mississippi’s death row. Flowers was tried six times in the same quadruple murder case by the same prosecutor, Doug Evans, who worked to keep Black people from serving on Flowers’ juries.

Kavanaugh wrote that he and his colleagues merely applied high court precedent on jury discrimination “to the extraordinary facts of this case.”

But what does the Trump appointee think about Terry Pitchford, who’s on the same state’s death row after being tried by the same prosecutor who also struck Black people from the jury?

We should get a sense of Kavanaugh’s and the rest of the court’s views when Pitchford’s case is argued Tuesday morning in Washington.

In a nod to Kavanaugh’s potentially pivotal role, Pitchford’s final brief ahead of the hearing began by citing a 1989 Yale Law Journal article on race and jury selection that Kavanaugh wrote as a student. Pitchford’s lawyers quoted the future justice’s argument that relying “solely on the good faith of prosecutors is misguided.”

In the article, Kavanaugh examined the 1986 ruling in Batson v. Kentucky, in which the court reaffirmed that it’s unconstitutional to keep Black people off juries because of their race. Kavanaugh advocated for the defense’s right to be present when a prosecutor gives their race-neutral explanation for wanting to strike a prospective juror, and for the defense’s right to rebut that explanation before a judge decides whether to accept it.

Judges can strike an unlimited number of prospective jurors if there’s cause to believe that they are biased or can’t otherwise serve. The bigger controversy can come into play with the limited number of strikes that the prosecution and defense get per trial, called peremptory strikes, which Batson said can’t be used for racial reasons. In the Flowers case, Kavanaugh wrote for the court that the trial judge clearly erred in finding that one of Evans’ strikes wasn’t motivated by discriminatory intent.

‘Well acquainted with Evans’

Naturally, Pitchford and his supporters cited the Flowers precedent and argued that the court should likewise rule in his favor. They emphasized that it wasn’t only the same prosecutor but also the same judge that the high court scrutinized in the Flowers case.

Pitchford has notable backing from Black people who were kept off his jury. In an amicus brief to the justices, they recalled that the court is “well acquainted with Evans” from the Flowers case. “Just as in Flowers, Evans here relied on race in deciding who to strike from the jury,” they wrote, explaining that the prosecutor used his strikes on four of the five Black people available. Pitchford was sentenced to death by a jury with one Black person.

Given the similarities between Pitchford’s and Flowers’ cases, it might seem, at first glance, like the court will have an easy time reaching the same result for the defense.

But one possible distinction is that, unlike Flowers’ case, which came to the justices directly through the state court system, the justices are reviewing Pitchford’s appeal through the lens of a federal law known as AEDPA. Broadly speaking, the high court’s Republican-appointed majority (including Kavanaugh) has routinely read the Antiterrorism and Effective Death Penalty Act to deny relief to criminal defendants. In Pitchford’s case, the legal question that the justices said they would decide is whether Mississippi’s top court unreasonably found that Pitchford had waived his right to rebut the prosecutor’s race-neutral justification.

U.S. District Judge Michael Mills sided with Pitchford. The George W. Bush appointee found that the state courts’ rejection of Pitchford’s jury bias claim was unreasonable. He said the Flowers’ case was, “at the very least, informative, and should have been examined in the state appellate court’s consideration” of Pitchford’s claim.

‘A history of violating Batson’ 

But a federal appellate panel of GOP appointees reversed that relief, ruling that the federal judge was too hard on the state court. The panel noted that Mills found Pitchford’s lawyer had properly objected to Evans’ strikes, such that the defendant had not waived his rights. But the panel said even if Mills was correct about that, it still would not get Pitchford relief under AEDPA.

“It is well-settled that even an erroneous state ruling is not enough to overcome AEDPA’s relitigation bar,” the federal appeals court said, adding that the state court’s waiver ruling was correct in any event.

The panel said that at Pitchford’s trial, his lawyer objected “not on the basis of pretext or comparative juror analysis, but only on the ground that the county was 40% black.” The panel said that wasn’t “remotely sufficient to raise an objection to the State’s race-neutral reasons.”

In Pitchford’s main brief to the justices ahead of Tuesday’s hearing, his lawyers said that the jury that convicted him and sentenced him to die “was selected through racially discriminatory peremptory strikes. A prosecutor with a history of violating Batson administered these four strikes, and the state courts allowed this discrimination. This Court should reverse.”

They said the Mississippi Supreme Court unreasonably applied Batson, while state officials disagreed, leaning on AEDPA’s restrictions.

“This Court limited its grant of certiorari to the question — reformulated by the Court — whether the Mississippi Supreme Court’s waiver ruling comports with AEDPA. The Court did not agree to decide the merits of petitioner’s Batson claim,” Mississippi Attorney General Lynn Fitch’s office wrote to the justices ahead of the hearing.

The Trump administration is supporting Mississippi, writing that the state court ruling against Pitchford “was well within” its authority — “particularly when subjected to deferential review under” AEDPA.

While the notion of discrimination in jury selection is readily understandable, Tuesday’s hearing could delve into procedural issues that are more arcane but nonetheless important to the outcome.

Another ‘tragedy’? 

Yet, at the end of the day, it’s impossible to ignore the commonalities between the Flowers and Pitchford cases. The court knew that when it granted Pitchford’s petition to review his appeal. It takes four justices to grant review, but the vote tally isn’t public.

In cases since Flowers was decided, the court’s three Democratic appointees have called out the majority for failing to apply that precedent to grant relief to other defendants.

One stark example came in a 2023 case, in which the court declined to review an appeal from Tony Terrell Clark. That prompted dissent that said the court’s refusal to intervene meant that “a Black man will be put to death in the State of Mississippi based on the decision of a jury that was plausibly selected based on race. That is a tragedy, and it is exactly the tragedy that Batson and Flowers were supposed to prevent.”

Given their approach to date, the court’s three Democratic appointees could be primed to side with Pitchford. If so, then he will need two more votes to win the case. That leaves an opening for Kavanaugh to take the lead again on this issue if he’s interested in reaching a similar result as he did for Flowers. The hearing could reveal whether he is leaning in that direction and, if so, whether any of his GOP-appointed colleagues are leaning along with him to make a majority for Pitchford.

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