Photo: Jason Doiy

Selecting a jury is both an art and a science but it should never be a tool for advancing a racist agenda. The U.S. Supreme Court has been reminding us of that since at least 1880, and did so again in June with a ruling I found vitally important and, frankly, comforting.

In a case called Flowers v. Mississippi, the justices made crystal clear that our courts and our constitution will not tolerate the racial stacking of juries. There was some concern that the conservative majority would use the Flowers case to step back from that principle, and I shared that concern while the case was pending.

The Supreme Court certainly had the opportunity but instead confirmed in no uncertain terms that attorneys cannot misuse "peremptory" challenges to exclude potential jurors solely because of their race. What's more, the decision was written by President Trump's most recent appointee to the high court, Justice Brett Kavanaugh. It was, to me, a great day for the rule of law and fundamental fairness.

To take a step back, attorneys can always ask the judge to excuse a particular juror if that individual expresses open bias or if there is a good reason to believe the person might not be objective. Perhaps the juror in question is related to the lead detective in the case or maybe the juror is a nurse in the same hospital as the doctor on trial in a malpractice case. Those prospective jurors can be "challenged for cause," and if the judge agrees, they will be excused.

Additionally, attorneys are afforded a number of "peremptory challenges" so they can, to limited extent, go with their instinct. Perhaps the juror has said nothing that would warrant removing him "for cause" but there's just something about his demeanor or the way he's glaring at the defendant or the fact that he looks bored and surly that makes the attorney uncomfortable. Lawyers can get rid of a few jurors for no better reason than they just rub them the wrong way. But they can't use peremptories to stack the deck against, or for, people of a particular race.

Congress made it a crime to "exclude or fail to summon a qualified citizen for jury service on the basis of race" way back in 1875 (see the Civil Rights Act of 1875). The Supreme Court shortly thereafter held that racially stacking a jury was not only against the law but in violation of the U.S. Constitution (see Strauder v. West Virginia, 1880).

Regardless, the practice continued and, to a lesser extent, continues to this day.

Routinely in some jurisdictions, blacks would be kept off a jury, a black defendant would be convicted by an all-white jury and the state court, often in the south, would uphold the conviction (which is more or less what happened in the Flowers case). In a relatively few cases where the defendant had the wherewithal, and money, to seek relief in the Supreme Court, the justices would reverse the conviction, send the case back for a retrial and the game would begin anew.

That changed in 1986 with a landmark decision, Batson v. Kentucky, which provided a mechanism for both judges and attorneys to address apparent race stacking while it was taking place, not months or years later. Some observers feared the Batson precedent, which struck a delicate balance aimed at removing discrimination from the process without eliminating peremptory challenges, was in jeopardy when the Supreme Court decided to take the Flowers case.

Flowers, a case involving a black man who was tried for capital murder six times (with all four convictions and death sentences overturned for prosecutorial misconduct), gave the court a golden opportunity to roll back or water down Batson if it had such an inclination or agenda. It did no such thing and instead sent a powerful message that the racial rigging of our court system is unacceptable, intolerable and un-American. It's a message we all needed to hear at a time of renewed racial tensions.

Gail Prudenti is dean and executive director of the Center for Children, Families and the Law at Hofstra University Maurice A. Dean School of Law.