A procedural issue may allow the Supreme Court to avoid confronting an egregious instance of racism in a death penalty case.

Last November, the Court heard oral arguments in Foster v. Chatman. The question in Foster is whether racial bias motivated prosecutors’ peremptory strikes, violating Batson. According to Foster’s lawyers, their evidence constituted “an arsenal of smoking guns.” They revealed, for example, prosecutors’ notes ranking the black potential jurors and a statement about who to seat, “if it comes down to having to pick one of the black jurors.” When challenged, the prosecution offered a laundry list of inconsistent and even incorrect reasons for striking all of the potential black jurors. Most of the press coverage agreed with this blog that Foster’s evidence was “extraordinary.” Many were hopeful the Court would rule for Foster, reinforcing its commitment to rooting out racism in the criminal justice system.

But, on the eve of oral arguments, the Court took the highly unusual step of asking the lawyers to prepare to argue a never-before-raised procedural issue. The justices wondered which lower court decision – the Georgia Supreme Court’s or the Georgia habeas corpus court’s – to review and whether either lower court had decided the case on the merits. These unanticipated oddities could foreclose a ruling on the Batson claim.

The questioning on the procedural issue was both confounding and dry. Justice Sotomayor pleaded at one point, “I’m sorry. I’m so confused I can’t even.”

The questions by some conservative justices indicated a potential eagerness to make the procedural issue definitive, thus avoiding a ruling on the Batson claim. Stephen B. Bright, the defendant’s lawyer, was questioned for nearly half of his time about res judicata and writs of certiorari. Eventually, Justices Ginsburg and Sotomayor attempted to shut down questions by Justices Alito and Kennedy, and the late Justice Scalia. The Chief Justice then allowed Bright to discuss his evidence of racism. Roberts did not, as he often does when arguments take an unexpected turn, give the parties extra time.

Questions for Georgia’s lawyer, Beth Burton, indicated that there might be hope for a ruling on the Batson claim based on an argument, advanced primarily by Justices Sotomayor and Breyer, that the Georgia Supreme Court’s ruling was on the merits. There might be hope for a ruling on the merits in a later term if the Court revisits the case after certifying a question to the state court about the procedural issue.

Ultimately, failing to rule on Foster’s Batson claim would be a huge missed opportunity. Racism in jury selection is unacceptable yet rampant. Foster’s evidence is blatant. The state court’s failure to recognize the discrimination is disturbing. The Court should do everything it can to correct the injustice and spare Foster the death penalty now.