Our Lower Courts Must Get in ‘Good Trouble, Necessary Trouble,’ and Desert Two Pillars of Racial Injustice — Whren v. United States and Batson v. Kentucky

Abstract

This summer, following the senseless murder of George Floyd, America, once again, began to march and protest for Black Lives. All around the country and world, sports teams and leagues, businesses, universities, and other organizations issued statements or, better, started campaigns or reform efforts to address police violence against Black Lives. In taking a step beyond the four corners of the courthouse, multiple lower courts broke their silence and condemned the treatment of African Americans in our criminal justice system. One chief justice went so far as to state that “... black people are ostracized, cast out, and dehumanized.” While these statements, which, in the words of the Wall Street Journal, are a “break with tradition” and should be applauded, the lower courts must do more than make bold remarks. Our lower courts (and the Supreme Court) must reckon with their own reinforcement of systemic racism and act to dismantle oppressive precedents. As the late Representative John Lewis would suggest, the lower courts should get in “good trouble, necessary trouble.” They should begin their efforts by removing from the legal textbooks Whren v. United States and Batson v. Kentucky — both of these precedents reflect our courts’ destructive endorsement of colorblindness and racial bias. African Americans are disturbingly over-included as targets (defendants) and over-excluded as decision-makers (jurors) in our criminal justice system. In Whren v. United States, the Supreme Court unanimously granted license to disparately police communities of color through pretextual traffic stops at the unfettered discretion of law enforcement. Strong empirical data demonstrates the negative real-world consequences of Whren since its inception in the late 1990s. Further, Batson v. Kentucky created a race-neutral test for a predominantly race-neutral problem, and its progeny further exacerbated the vast disproportionate exclusion of African Americans from our juries. A recent study conducted by the Berkeley Law Death Penalty Clinic adds to the ever-growing literature illustrating this continued “whitewashing” of the jury box. This article is a call to the lower courts to abandon Whren and Batson by either overruling or “narrowing [them] from below” utilizing an analytical framework that draws upon Justice Kavanaugh’s recent concurrence in Ramos v. Louisiana, considers the actual, rather than perceived dangers, of Whren and Batson, and pays homage to the proficiency of the Supreme Court’s jurisprudence. Statements by our lower courts during a time of great distress in our nation are welcomed, but it is their messages or actions (not mere isolated words) that will bring about the nonviolent revolution needed in our criminal justice system.