Flowers v. Mississippi

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

FLOWERS v. MISSISSIPPI

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

No. 17–9572. Argued March 20, 2019—Decided June 21, 2019
Petitioner Curtis Flowers has been tried six separate times for the
murder of four employees of a Mississippi furniture store. Flowers is
black; three of the four victims were white. At the first two trials, the
State used its peremptory strikes on all of the qualified black pro-
spective jurors. In each case, the jury convicted Flowers and sen-
tenced him to death, but the convictions were later reversed by the
Mississippi Supreme Court based on prosecutorial misconduct. At
the third trial, the State used all of its 15 peremptory strikes against
black prospective jurors, and the jury convicted Flowers and sen-
tenced him to death. The Mississippi Supreme Court reversed again,
this time concluding that the State exercised its peremptory strikes
on the basis of race in violation of Batson v. Kentucky, 476 U. S. 79.
Flowers’ fourth and fifth trials ended in mistrials. At the fourth, the
State exercised 11 peremptory strikes—all against black prospective
jurors. No available racial information exists about the prospective
jurors in the fifth trial. At the sixth trial, the State exercised six per-
emptory strikes—five against black prospective jurors, allowing one
black juror to be seated. Flowers again raised a Batson claim, but
the trial court concluded that the State had offered race-neutral rea-
sons for each of the five peremptory strikes. The jury convicted
Flowers and sentenced him to death. The Mississippi Supreme Court
affirmed. After this Court vacated that judgment and remanded in
light of Foster v. Chatman, 578 U. S. ___, the Mississippi Supreme
Court again upheld Flowers’ conviction in a divided 5-to-4 decision.
Justice King dissented on the Batson issue and was joined by two
other Justices.
Held: All of the relevant facts and circumstances taken together estab-
lish that the trial court at Flowers’ sixth trial committed clear error
in concluding that the State’s peremptory strike of black prospective
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Syllabus

juror Carolyn Wright was not motivated in substantial part by dis-
criminatory intent. Pp. 7–31.
(a) Under Batson, once a prima facie case of discrimination has
been shown by a defendant, the State must provide race-neutral rea-
sons for its peremptory strikes. The trial judge then must determine
whether the prosecutor’s stated reasons were the actual reasons or
instead were a pretext for discrimination. The Batson Court rejected
four arguments. First, the Batson Court rejected the idea that a de-
fendant must demonstrate a history of racially discriminatory strikes
in order to make out a claim of race discrimination. Second, the Bat-
son Court rejected the argument that a prosecutor could strike a
black juror based on an assumption or belief that the black juror
would favor a black defendant. Third, the Batson Court rejected the
argument that race-based peremptories should be permissible be-
cause black, white, Asian, and Hispanic defendants and jurors were
all “equally” subject to race-based discrimination. Fourth, the Batson
Court rejected the argument that race-based peremptories are per-
missible because both the prosecution and defense could employ them
in any individual case and in essence balance things out. Pp. 7–15.
(b) Four categories of evidence loom large in assessing the Batson
issue here, where the State had a persistent pattern of striking black
prospective jurors from Flowers’ first through his sixth trial. Pp. 15–
30.
(1) A review of the history of the State’s peremptory strikes in
Flowers’ first four trials strongly supports the conclusion that the
State’s use of peremptory strikes in Flowers’ sixth trial was motivat-
ed in substantial part by discriminatory intent. The State tried to
strike all 36 black prospective jurors over the course of the first four
trials. And the state courts themselves concluded that the State had
violated Batson on two separate occasions. The State’s relentless, de-
termined effort to rid the jury of black individuals strongly suggests
that the State wanted to try Flowers before a jury with as few black
jurors as possible, and ideally before an all-white jury. Pp. 19–22.
(2) The State’s use of peremptory strikes in Flowers’ sixth trial
followed the same pattern as the first four trials. Pp. 22–23.
(3) Disparate questioning can be probative of discriminatory in-
tent. Miller-El v. Cockrell, 537 U. S. 322, 331–332, 344–345. Here,
the State spent far more time questioning the black prospective ju-
rors than the accepted white jurors—145 questions asked of 5 black
prospective jurors and 12 questions asked of 11 white seated jurors.
The record refutes the State’s explanation that it questioned black
and white prospective jurors differently only because of differences in
the jurors’ characteristics. Along with the historical evidence from
the earlier trials, as well as the State’s striking of five of six black
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Syllabus

prospective jurors at the sixth trial, the dramatically disparate ques-
tioning and investigation of black prospective jurors and white pro-
spective jurors at the sixth trial strongly suggest that the State was
motivated in substantial part by a discriminatory intent. Pp. 23–26.
(4) Comparing prospective jurors who were struck and not struck
can be an important step in determining whether a Batson violation
occurred. See Snyder v. Louisiana, 552 U. S. 472, 483–484. Here,
Carolyn Wright, a black prospective juror, was struck, the State says,
in part because she knew several defense witnesses and had worked
at Wal-Mart where Flowers’ father also worked. But three white
prospective jurors also knew many individuals involved in the case,
and the State asked them no individual questions about their connec-
tions to witnesses. White prospective jurors also had relationships
with members of Flowers’ family, but the State did not ask them fol-
low-up questions in order to explore the depth of those relationships.
The State also incorrectly explained that it exercised a peremptory
strike against Wright because she had worked with one of Flowers’
sisters and made apparently incorrect statements to justify the
strikes of other black prospective jurors. When considered with other
evidence, a series of factually inaccurate explanations for striking
black prospective jurors can be another clue showing discriminatory
intent. The overall context here requires skepticism of the State’s
strike of Carolyn Wright. The trial court at Flowers’ sixth trial com-
mitted clear error in concluding that the State’s peremptory strike of
black prospective juror Carolyn Wright was not motivated in sub-
stantial part by discriminatory intent. Pp. 26–30.
240 So. 3d 1082, reversed and remanded.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ.,
joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed a dis-
senting opinion, in which GORSUCH, J., joined as to Parts I, II, and III.
 Cite as: 588 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 17–9572
_________________

CURTIS GIOVANNI FLOWERS, PETITIONER
v. MISSISSIPPI
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
MISSISSIPPI
[June 21, 2019]

JUSTICE KAVANAUGH delivered the opinion of the Court.
In Batson v. Kentucky, 476 U. S. 79 (1986), this Court
ruled that a State may not discriminate on the basis of
race when exercising peremptory challenges against pro-
spective jurors in a criminal trial.
In 1996, Curtis Flowers allegedly murdered four people
in Winona, Mississippi. Flowers is black. He has been
tried six separate times before a jury for murder. The
same lead prosecutor represented the State in all six
trials.
In the initial three trials, Flowers was convicted, but the
Mississippi Supreme Court reversed each conviction. In
the first trial, Flowers was convicted, but the Mississippi
Supreme Court reversed the conviction due to “numerous
instances of prosecutorial misconduct.” Flowers v. State,
773 So. 2d 309, 327 (2000). In the second trial, the trial
court found that the prosecutor discriminated on the basis
of race in the peremptory challenge of a black juror. The
trial court seated the black juror. Flowers was then con-
victed, but the Mississippi Supreme Court again reversed
the conviction because of prosecutorial misconduct at trial.
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Opinion of the Court

In the third trial, Flowers was convicted, but the Missis-
sippi Supreme Court yet again reversed the conviction,
this time because the court concluded that the prosecutor
had again discriminated against black prospective jurors
in the jury selection process. The court’s lead opinion
stated: “The instant case presents us with as strong a
prima facie case of racial discrimination as we have ever
seen in the context of a Batson challenge.” Flowers v.
State, 947 So. 2d 910, 935 (2007). The opinion further
stated that the “State engaged in racially discriminatory
practices during the jury selection process” and that the
“case evinces an effort by the State to exclude African-
Americans from jury service.” Id., at 937, 939.
The fourth and fifth trials of Flowers ended in mistrials
due to hung juries.
In his sixth trial, which is the one at issue here, Flowers
was convicted. The State struck five of the six black pro-
spective jurors. On appeal, Flowers argued that the State
again violated Batson in exercising peremptory strikes
against black prospective jurors. In a divided 5-to-4 deci-
sion, the Mississippi Supreme Court affirmed the convic-
tion. We granted certiorari on the Batson question and
now reverse. See 586 U. S. ___ (2018).
Four critical facts, taken together, require reversal.
First, in the six trials combined, the State employed its
peremptory challenges to strike 41 of the 42 black prospec-
tive jurors that it could have struck—a statistic that the
State acknowledged at oral argument in this Court. Tr. of
Oral Arg. 32. Second, in the most recent trial, the sixth
trial, the State exercised peremptory strikes against five of
the six black prospective jurors. Third, at the sixth trial,
in an apparent effort to find pretextual reasons to strike
black prospective jurors, the State engaged in dramatically
disparate questioning of black and white prospective
jurors. Fourth, the State then struck at least one black
prospective juror, Carolyn Wright, who was similarly
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Opinion of the Court

situated to white prospective jurors who were not struck
by the State.
We need not and do not decide that any one of those four
facts alone would require reversal. All that we need to
decide, and all that we do decide, is that all of the relevant
facts and circumstances taken together establish that the
trial court committed clear error in concluding that the
State’s peremptory strike of black prospective juror Car-
olyn Wright was not “motivated in substantial part by
discriminatory intent.” Foster v. Chatman, 578 U. S. ___,
___ (2016) (slip op., at 23) (internal quotation marks omit-
ted). In reaching that conclusion, we break no new legal
ground. We simply enforce and reinforce Batson by apply-
ing it to the extraordinary facts of this case.
We reverse the judgment of the Supreme Court of Mis-
sissippi, and we remand the case for further proceedings
not inconsistent with this opinion.
I
The underlying events that gave rise to this case took
place in Winona, Mississippi. Winona is a small town in
northern Mississippi, just off I–55 almost halfway between
Jackson and Memphis. The total population of Winona is
about 5,000. The town is about 53 percent black and
about 46 percent white.
In 1996, Bertha Tardy, Robert Golden, Derrick Stewart,
and Carmen Rigby were murdered at the Tardy Furniture
store in Winona. All four victims worked at the Tardy
Furniture store. Three of the four victims were white; one
was black. In 1997, the State charged Curtis Flowers with
murder. Flowers is black. Since then, Flowers has been
tried six separate times for the murders. In each of the
first two trials, Flowers was tried for one individual mur-
der. In each subsequent trial, Flowers was tried for all
four of the murders together. The same state prosecutor
tried Flowers each time. The prosecutor is white.
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Opinion of the Court

At Flowers’ first trial, 36 prospective jurors—5 black
and 31 white—were presented to potentially serve on the
jury. The State exercised a total of 12 peremptory strikes,
and it used 5 of them to strike the five qualified black
prospective jurors. Flowers objected, arguing under Bat-
son that the State had exercised its peremptory strikes in
a racially discriminatory manner. The trial court rejected
the Batson challenge. Because the trial court allowed the
State’s peremptory strikes, Flowers was tried in front of
an all-white jury. The jury convicted Flowers and sen-
tenced him to death.
On appeal, the Mississippi Supreme Court reversed the
conviction, concluding that the State had committed pros-
ecutorial misconduct in front of the jury by, among other
things, expressing baseless grounds for doubting the
credibility of witnesses and mentioning facts that had not
been allowed into evidence by the trial judge. Flowers,
773 So. 2d, at 317, 334. In its opinion, the Mississippi
Supreme Court described “numerous instances of prosecu-
torial misconduct” at the trial. Id., at 327. Because the
Mississippi Supreme Court reversed based on prosecutorial
misconduct at trial, the court did not reach Flowers’
Batson argument. See Flowers, 773 So. 2d, at 327.
At the second trial, 30 prospective jurors—5 black and
25 white—were presented to potentially serve on the jury.
As in Flowers’ first trial, the State again used its strikes
against all five black prospective jurors. But this time, the
trial court determined that the State’s asserted reason for
one of the strikes was a pretext for discrimination. Specif-
ically, the trial court determined that one of the State’s
proffered reasons—that the juror had been inattentive and
was nodding off during jury selection—for striking that
juror was false, and the trial court therefore sustained
Flowers’ Batson challenge. The trial court disallowed the
strike and sat that black juror on the jury. The jury at
Flowers’ second trial consisted of 11 white jurors and 1
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Opinion of the Court

black juror. The jury convicted Flowers and sentenced
him to death.
On appeal, the Mississippi Supreme Court again re-
versed. The court ruled that the prosecutor had again
engaged in prosecutorial misconduct in front of the jury
by, among other things, impermissibly referencing evi-
dence and attempting to undermine witness credibility
without a factual basis. See Flowers v. State, 842 So. 2d
531, 538, 553 (2003).
At Flowers’ third trial, 45 prospective jurors—17 black
and 28 white—were presented to potentially serve on the
jury. One of the black prospective jurors was struck for
cause, leaving 16. The State exercised a total of 15 per-
emptory strikes, and it used all 15 against black prospec-
tive jurors. Flowers again argued that the State had used
its peremptory strikes in a racially discriminatory man-
ner. The trial court found that the State had not discrimi-
nated on the basis of race. See Flowers, 947 So. 2d, at 916.
The jury in Flowers’ third trial consisted of 11 white jurors
and 1 black juror. The lone black juror who served on the
jury was seated after the State ran out of peremptory
strikes. The jury convicted Flowers and sentenced him to
death.
On appeal, the Mississippi Supreme Court yet again
reversed, concluding that the State had again violated
Batson by discriminating on the basis of race in exercising
all 15 of its peremptory strikes against 15 black prospec-
tive jurors. See Flowers, 947 So. 2d, at 939. The court’s
lead opinion stated: “The instant case presents us with as
strong a prima facie case of racial discrimination as we
have ever seen in the context of a Batson challenge.” Id.,
at 935. The opinion explained that although “each indi-
vidual strike may have justifiably appeared to the trial
court to be sufficiently race neutral, the trial court also
has a duty to look at the State’s use of peremptory chal-
lenges in toto.” Id., at 937. The opinion emphasized that
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Opinion of the Court

“trial judges should not blindly accept any and every
reason put forth by the State, especially” when “the State
continues to exercise challenge after challenge only upon
members of a particular race.” Ibid. The opinion added
that the “State engaged in racially discriminatory practices”
and that the “case evinces an effort by the State to
exclude African-Americans from jury service.” Id., at
937, 939.
At Flowers’ fourth trial, 36 prospective jurors—16 black
and 20 white—were presented to potentially serve on the
jury. The State exercised a total of 11 peremptory strikes,
and it used all 11 against black prospective jurors. But
because of the relatively large number of prospective
jurors who were black, the State did not have enough
peremptory challenges to eliminate all of the black pro-
spective jurors. The seated jury consisted of seven white
jurors and five black jurors. That jury could not reach a
verdict, and the proceeding ended in a mistrial.
As to the fifth trial, there is no available racial infor-
mation about the prospective jurors, as distinct from the
jurors who ultimately sat on the jury. The jury was com-
posed of nine white jurors and three black jurors. The
jury could not reach a verdict, and the trial again ended in
a mistrial.
At the sixth trial, which we consider here, 26 prospec-
tive jurors—6 black and 20 white—were presented to
potentially serve on the jury. The State exercised a total
of six peremptory strikes, and it used five of the six
against black prospective jurors, leaving one black juror to
sit on the jury. Flowers again argued that the State had
exercised its peremptory strikes in a racially discrimina-
tory manner. The trial court concluded that the State had
offered race-neutral reasons for each of the five peremp-
tory strikes against the five black prospective jurors. The
jury at Flowers’ sixth trial consisted of 11 white jurors and
1 black juror. That jury convicted Flowers of murder and
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Opinion of the Court

sentenced him to death.
In a divided decision, the Mississippi Supreme Court
agreed with the trial court on the Batson issue and stated
that the State’s “race-neutral reasons were valid and not
merely pretextual.” Flowers v. State, 158 So. 3d 1009,
1058 (2014). Flowers then sought review in this Court.
This Court granted Flowers’ petition for a writ of certio-
rari, vacated the judgment of the Mississippi Supreme
Court, and remanded for further consideration in light of
the decision in Foster, 578 U. S. ___. Flowers v. Mississippi,
579 U. S. ___ (2016). In Foster, this Court held that the
defendant Foster had established a Batson violation. 578
U. S., at ___ (slip op., at 25).
On remand, the Mississippi Supreme Court by a 5-to-4
vote again upheld Flowers’ conviction. See 240 So. 3d
1082 (2017). Justice King wrote a dissent for three justices.
He stated: “I cannot conclude that Flowers received a
fair trial, nor can I conclude that prospective jurors were
not subjected to impermissible discrimination.” Id., at
1172. According to Justice King, both the trial court and
the Mississippi Supreme Court “completely disregard[ed]
the constitutional right of prospective jurors to be free
from a racially discriminatory selection process.” Id., at
1171. We granted certiorari. See 586 U. S. ___.
II
A
Other than voting, serving on a jury is the most sub-
stantial opportunity that most citizens have to participate
in the democratic process. See Powers v. Ohio, 499 U. S.
400, 407 (1991).
Jury selection in criminal cases varies significantly
based on state and local rules and practices, but ordinarily
consists of three phases, which we describe here in general
terms. First, a group of citizens in the community is ran-
domly summoned to the courthouse on a particular day for
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potential jury service. Second, a subgroup of those pro-
spective jurors is called into a particular courtroom for a
specific case. The prospective jurors are often questioned
by the judge, as well as by the prosecutor and defense
attorney. During that second phase, the judge may excuse
certain prospective jurors based on their answers. Third,
the prosecutor and defense attorney may challenge certain
prospective jurors. The attorneys may challenge prospec-
tive jurors for cause, which usually stems from a potential
juror’s conflicts of interest or inability to be impartial. In
addition to challenges for cause, each side is typically
afforded a set number of peremptory challenges or strikes.
Peremptory strikes have very old credentials and can be
traced back to the common law. Those peremptory strikes
traditionally may be used to remove any potential juror for
any reason—no questions asked.
That blanket discretion to peremptorily strike prospec-
tive jurors for any reason can clash with the dictates of the
Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution. This case arises at the
intersection of the peremptory challenge and the Equal
Protection Clause. And to understand how equal protec-
tion law applies to peremptory challenges, it helps to begin
at the beginning.
Ratified in 1868 in the wake of the Civil War, the Equal
Protection Clause of the Fourteenth Amendment provides
that no State shall “deny to any person within its jurisdic-
tion the equal protection of the laws.” A primary objective
of the Equal Protection Clause, this Court stated just five
years after ratification, was “the freedom of the slave race,
the security and firm establishment of that freedom, and
the protection of the newly-made freeman and citizen from
the oppressions of those who had formerly exercised un-
limited dominion over him.” Slaughter-House Cases, 16
Wall. 36, 71 (1873).
In 1875, to help enforce the Fourteenth Amendment,
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Congress passed and President Ulysses S. Grant signed
the Civil Rights Act of 1875. Ch. 114, 18 Stat. 335.
Among other things, that law made it a criminal offense
for state officials to exclude individuals from jury service
on account of their race. 18 U. S. C. §243. The Act pro-
vides: “No citizen possessing all other qualifications which
are or may be prescribed by law shall be disqualified for
service as grand or petit juror in any court of the United
States, or of any State on account of race, color, or previ-
ous condition of servitude.”
In 1880, just 12 years after ratification of the Four-
teenth Amendment, the Court decided Strauder v. West
Virginia, 100 U. S. 303. That case concerned a West
Virginia statute that allowed whites only to serve as ju-
rors. The Court held the law unconstitutional.
In reaching its conclusion, the Court explained that the
Fourteenth Amendment required “that the law in the
States shall be the same for the black as for the white;
that all persons, whether colored or white, shall stand
equal before the laws of the States, and, in regard to the
colored race, for whose protection the amendment was
primarily designed, that no discrimination shall be made
against them by law because of their color.” Id., at 307.
In the words of the Strauder Court: “The very fact that
colored people are singled out and expressly denied by a
statute all right to participate in the administration of the
law, as jurors, because of their color, though they are
citizens, and may be in other respects fully qualified, is
practically a brand upon them, affixed by the law, an
assertion of their inferiority, and a stimulant to that race
prejudice which is an impediment to securing to individu-
als of the race that equal justice which the law aims to
secure to all others.” Id., at 308. For those reasons, the
Court ruled that the West Virginia statute exclud-
ing blacks from jury service violated the Fourteenth
Amendment.
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Opinion of the Court

As the Court later explained in Brown v. Board of Edu-
cation, 347 U. S. 483 (1954), the Court’s decisions in the
Slaughter-House Cases and Strauder interpreted the
Fourteenth Amendment “as proscribing all state-imposed
discriminations against the Negro race,” including in jury
service. Brown, 347 U. S., at 490.
In the decades after Strauder, the Court reiterated that
States may not discriminate on the basis of race in jury
selection. See, e.g., Neal v. Delaware, 103 U. S. 370, 397
(1881); Carter v. Texas, 177 U. S. 442, 447 (1900); Norris v.
Alabama, 294 U. S. 587, 597–599 (1935); Hale v. Kentucky,
303 U. S. 613, 616 (1938) (per curiam); Pierre v. Louisiana,
306 U. S. 354, 362 (1939); Smith v. Texas, 311 U. S. 128,
130–131 (1940); Avery v. Georgia, 345 U. S. 559, 562
(1953); Hernandez v. Texas, 347 U. S. 475, 477–478, 482
(1954); Coleman v. Alabama, 377 U. S. 129, 133 (1964).
But critical problems persisted. Even though laws
barring blacks from serving on juries were unconstitutional
after Strauder, many jurisdictions employed various
discriminatory tools to prevent black persons from being
called for jury service. And when those tactics failed, or
were invalidated, prosecutors could still exercise peremp-
tory strikes in individual cases to remove most or all black
prospective jurors.
In the century after Strauder, the freedom to exercise
peremptory strikes for any reason meant that “the prob-
lem of racial exclusion from jury service” remained “wide-
spread” and “deeply entrenched.” 5 U. S. Commission on
Civil Rights Report 90 (1961). Simple math shows how
that happened. Given that blacks were a minority of the
population, in many jurisdictions the number of peremp-
tory strikes available to the prosecutor exceeded the number
of black prospective jurors. So prosecutors could routinely
exercise peremptories to strike all the black prospective
jurors and thereby ensure all-white juries. The exclusion
of black prospective jurors was almost total in certain
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Opinion of the Court

jurisdictions, especially in cases involving black defend-
ants. Similarly, defense counsel could use—and routinely
did use—peremptory challenges to strike all the black
prospective jurors in cases involving white defendants and
black victims.
In the aftermath of Strauder, the exclusion of black
jurors became more covert and less overt—often accom-
plished through peremptory challenges in individual
courtrooms rather than by blanket operation of law. But
as this Court later noted, the results were the same for
black jurors and black defendants, as well as for the black
community’s confidence in the fairness of the American
criminal justice system. See Batson, 476 U. S., at 98–99.
Eighty-five years after Strauder, the Court decided
Swain v. Alabama, 380 U. S. 202 (1965). The defendant
Swain was black. Swain was convicted of a capital offense
in Talladega County, Alabama, and sentenced to death.
Swain presented evidence that no black juror had served
on a jury in Talladega County in more than a decade. See
id., at 226. And in Swain’s case, the prosecutor struck all
six qualified black prospective jurors, ensuring that Swain
was tried before an all-white jury. Swain invoked Strauder
to argue that the prosecutor in his case had impermis-
sibly discriminated on the basis of race by using peremp-
tory challenges to strike the six black prospective jurors.
See 380 U. S., at 203, 210.
This Court ruled that Swain had not established uncon-
stitutional discrimination. Most importantly, the Court
held that a defendant could not object to the State’s use of
peremptory strikes in an individual case. In the Court’s
words: “[W]e cannot hold that the striking of Negroes in a
particular case is a denial of equal protection of the laws.”
Id., at 221. The Swain Court reasoned that prosecutors do
not always judge prospective jurors individually when
exercising peremptory strikes. Instead, prosecutors
choose which prospective jurors to strike “in light of the
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limited knowledge counsel has of them, which may include
their group affiliations, in the context of the case to be
tried.” Ibid. In the Court’s view, the prosecutor could
strike prospective jurors on the basis of their group affilia-
tions, including race. In other words, a prosecutor could
permissibly strike a prospective juror for any reason,
including the assumption or belief that a black prospective
juror, because of race, would be favorable to a black de-
fendant or unfavorable to the State. See id., at 220–221.
To be sure, the Swain Court held that a defendant could
make out a case of racial discrimination by showing that
the State “in case after case, whatever the circumstances,
whatever the crime and whoever the defendant or the
victim may be,” had been responsible for the removal of
qualified black prospective jurors so that no black jurors
“ever serve on petit juries.” Id., at 223. But Swain’s high
bar for establishing a constitutional violation was almost
impossible for any defendant to surmount, as the after-
math of Swain amply demonstrated.
Twenty-one years later, in its 1986 decision in Batson,
the Court revisited several critical aspects of Swain and in
essence overruled them. In so doing, the Batson Court
emphasized that “the central concern” of the Fourteenth
Amendment “was to put an end to governmental discrimi-
nation on account of race.” 476 U. S., at 85. The Batson
Court noted that Swain had left prosecutors’ peremptory
challenges “largely immune from constitutional scrutiny.”
476 U. S., at 92–93. In his concurrence in Batson, Justice
Byron White (the author of Swain) agreed that Swain
should be overruled. He stated: “[T]he practice of peremp-
torily eliminating blacks from petit juries in cases with
black defendants remains widespread, so much so” that “I
agree with the Court that the time has come to rule as it
has.” 476 U. S., at 101–102.
Under Batson, once a prima facie case of discrimination
has been shown by a defendant, the State must provide
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race-neutral reasons for its peremptory strikes. The trial
judge must determine whether the prosecutor’s stated
reasons were the actual reasons or instead were a pretext
for discrimination. Id., at 97–98.
Four parts of Batson warrant particular emphasis here.
First, the Batson Court rejected Swain’s insistence that
a defendant demonstrate a history of racially discrimina-
tory strikes in order to make out a claim of race discrimi-
nation. See 476 U. S., at 95. According to the Batson
Court, defendants had run into “practical difficulties” in
trying to prove that a State had systematically “exercised
peremptory challenges to exclude blacks from the jury on
account of race.” Id., at 92, n. 17. The Batson Court ex-
plained that, in some jurisdictions, requiring a defendant
to “investigate, over a number of cases, the race of persons
tried in the particular jurisdiction, the racial composition
of the venire and petit jury, and the manner in which both
parties exercised their peremptory challenges” posed an
“insurmountable” burden. Ibid.
In addition to that practical point, the Court stressed a
basic equal protection point: In the eyes of the Constitu-
tion, one racially discriminatory peremptory strike is one
too many.
For those reasons, the Batson Court held that a criminal
defendant could show “purposeful discrimination in selec-
tion of the petit jury solely on evidence concerning the
prosecutor’s exercise of peremptory challenges at the
defendant’s trial.” Id., at 96 (emphasis added).
Second, the Batson Court rejected Swain’s statement
that a prosecutor could strike a black juror based on an
assumption or belief that the black juror would favor a
black defendant. In some of the most critical sentences in
the Batson opinion, the Court emphasized that a prosecu-
tor may not rebut a claim of discrimination “by stating
merely that he challenged jurors of the defendant’s race on
the assumption—or his intuitive judgment—that they
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would be partial to the defendant because of their shared
race.” 476 U. S., at 97. The Court elaborated: The Equal
Protection Clause “forbids the States to strike black veni-
remen on the assumption that they will be biased in a
particular case simply because the defendant is black.
The core guarantee of equal protection, ensuring citizens
that their State will not discriminate on account of race,
would be meaningless were we to approve the exclusion of
jurors on the basis of such assumptions, which arise solely
from the jurors’ race.” Id., at 97–98. In his concurrence,
Justice Thurgood Marshall drove the point home: “Exclu-
sion of blacks from a jury, solely because of race, can no
more be justified by a belief that blacks are less likely
than whites to consider fairly or sympathetically the
State’s case against a black defendant than it can be
justified by the notion that blacks lack the intelligence,
experience, or moral integrity to be entrusted with that
role.” Id., at 104–105 (internal quotation marks and
citations omitted).
Third, the Batson Court did not accept the argument
that race-based peremptories should be permissible be-
cause black, white, Asian, and Hispanic defendants and
jurors were all “equally” subject to race-based discrimina-
tion. The Court stated that each removal of an individual
juror because of his or her race is a constitutional viola-
tion. Discrimination against one defendant or juror on
account of race is not remedied or cured by discrimination
against other defendants or jurors on account of race. As
the Court later explained: Some say that there is no equal
protection violation if individuals “of all races are subject
to like treatment, which is to say that white jurors are
subject to the same risk of peremptory challenges based on
race as are all other jurors. The suggestion that racial
classifications may survive when visited upon all persons
is no more authoritative today than the case which ad-
vanced the theorem, Plessy v. Ferguson, 163 U. S. 537
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Opinion of the Court

(1896). This idea has no place in our modern equal protec-
tion jurisprudence. It is axiomatic that racial classifica-
tions do not become legitimate on the assumption that all
persons suffer them in equal degree.” Powers, 499 U. S.,
at 410 (citing Loving v. Virginia, 388 U. S. 1 (1967)).
Fourth, the Batson Court did not accept the argument
that race-based peremptories are permissible because both
the prosecution and defense could employ them in any
individual case and in essence balance things out. Under
the Equal Protection Clause, the Court stressed, even a
single instance of race discrimination against a prospec-
tive juror is impermissible. Moreover, in criminal cases
involving black defendants, the both-sides-can-do-it argu-
ment overlooks the percentage of the United States popu-
lation that is black (about 12 percent) and the cold reality
of jury selection in most jurisdictions. Because blacks are
a minority in most jurisdictions, prosecutors often have
more peremptory strikes than there are black prospective
jurors on a particular panel. In the pre-Batson era, there-
fore, allowing each side in a case involving a black defend-
ant to strike prospective jurors on the basis of race meant
that a prosecutor could eliminate all of the black jurors,
but a black defendant could not eliminate all of the white
jurors. So in the real world of criminal trials against black
defendants, both history and math tell us that a system of
race-based peremptories does not treat black defendants
and black prospective jurors equally with prosecutors and
white prospective jurors. Cf. Batson, 476 U. S., at 99.
B
Equal justice under law requires a criminal trial free of
racial discrimination in the jury selection process. Enforc-
ing that constitutional principle, Batson ended the wide-
spread practice in which prosecutors could (and often
would) routinely strike all black prospective jurors in
cases involving black defendants. By taking steps to
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eradicate racial discrimination from the jury selection
process, Batson sought to protect the rights of defendants
and jurors, and to enhance public confidence in the fair-
ness of the criminal justice system. Batson immediately
revolutionized the jury selection process that takes place
every day in federal and state criminal courtrooms
throughout the United States.
In the decades since Batson, this Court’s cases have
vigorously enforced and reinforced the decision, and
guarded against any backsliding. See Foster, 578 U. S.
___; Snyder v. Louisiana, 552 U. S. 472 (2008); Miller-El v.
Dretke, 545 U. S. 231 (2005) (Miller-El II). Moreover, the
Court has extended Batson in certain ways. A defendant
of any race may raise a Batson claim, and a defendant
may raise a Batson claim even if the defendant and the
excluded juror are of different races. See Hernandez, 347
U. S., at 477–478; Powers, 499 U. S., at 406. Moreover,
Batson now applies to gender discrimination, to a criminal
defendant’s peremptory strikes, and to civil cases. See J.
E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 129 (1994);
Georgia v. McCollum, 505 U. S. 42, 59 (1992); Edmonson
v. Leesville Concrete Co., 500 U. S. 614, 616 (1991).
Of particular relevance here, Batson’s holding raised
several important evidentiary and procedural issues, three
of which we underscore.
First, what factors does the trial judge consider in
evaluating whether racial discrimination occurred? Our
precedents allow criminal defendants raising Batson
challenges to present a variety of evidence to support a
claim that a prosecutor’s peremptory strikes were made on
the basis of race. For example, defendants may present:
 statistical evidence about the prosecutor’s use of
peremptory strikes against black prospective jurors
as compared to white prospective jurors in the case;
 evidence of a prosecutor’s disparate questioning and
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Opinion of the Court

investigation of black and white prospective jurors
in the case;
 side-by-side comparisons of black prospective jurors
who were struck and white prospective jurors who
were not struck in the case;
 a prosecutor’s misrepresentations of the record
when defending the strikes during the Batson
hearing;
 relevant history of the State’s peremptory strikes in
past cases; or
 other relevant circumstances that bear upon the is-
sue of racial discrimination.
See Foster, 578 U. S. ___; Snyder, 552 U. S. 472; Miller-El
II, 545 U. S. 231; Batson, 476 U. S. 79.
Second, who enforces Batson? As the Batson Court
itself recognized, the job of enforcing Batson rests first and
foremost with trial judges. See id., at 97, 99, n. 22.
America’s trial judges operate at the front lines of Ameri-
can justice. In criminal trials, trial judges possess the
primary responsibility to enforce Batson and prevent
racial discrimination from seeping into the jury selection
process.
As the Batson Court explained and as the Court later
reiterated, once a prima facie case of racial discrimination
has been established, the prosecutor must provide race-
neutral reasons for the strikes. The trial court must con-
sider the prosecutor’s race-neutral explanations in light of
all of the relevant facts and circumstances, and in light of
the arguments of the parties. The trial judge’s assessment
of the prosecutor’s credibility is often important. The
Court has explained that “the best evidence of discrimina-
tory intent often will be the demeanor of the attorney who
exercises the challenge.” Snyder, 552 U. S., at 477 (quota-
tion altered). “We have recognized that these determina-
tions of credibility and demeanor lie peculiarly within a
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Opinion of the Court

trial judge’s province.” Ibid. (internal quotation marks
omitted). The trial judge must determine whether the
prosecutor’s proffered reasons are the actual reasons, or
whether the proffered reasons are pretextual and the
prosecutor instead exercised peremptory strikes on the
basis of race. The ultimate inquiry is whether the State
was “motivated in substantial part by discriminatory
intent.” Foster, 578 U. S., at ___ (slip op., at 23) (internal
quotation marks omitted).
Third, what is the role of appellate review? An appeals
court looks at the same factors as the trial judge, but is
necessarily doing so on a paper record. “Since the trial
judge’s findings in the context under consideration here
largely will turn on evaluation of credibility, a reviewing
court ordinarily should give those findings great defer-
ence.” Batson, 476 U. S., at 98, n. 21. The Court has
described the appellate standard of review of the trial
court’s factual determinations in a Batson hearing as
“highly deferential.” Snyder, 552 U. S., at 479. “On ap-
peal, a trial court’s ruling on the issue of discriminatory
intent must be sustained unless it is clearly erroneous.”
Id., at 477.
III
In accord with the principles set forth in Batson, we now
address Flowers’ case.
The Constitution forbids striking even a single prospec-
tive juror for a discriminatory purpose. See Foster, 578
U. S., at ___ (slip op., at 9). The question for this Court is
whether the Mississippi trial court clearly erred in con-
cluding that the State was not “motivated in substantial
part by discriminatory intent” when exercising peremp-
tory strikes at Flowers’ sixth trial. Id., at ___ (slip op., at 23)
(internal quotation marks omitted); see also Snyder, 552
U. S., at 477. Because this case arises on direct review, we
owe no deference to the Mississippi Supreme Court, as
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distinct from deference to the Mississippi trial court.
Four categories of evidence loom large in assessing the
Batson issue in Flowers’ case: (1) the history from Flowers’
six trials, (2) the prosecutor’s striking of five of six black
prospective jurors at the sixth trial, (3) the prosecutor’s
dramatically disparate questioning of black and white
prospective jurors at the sixth trial, and (4) the prosecu-
tor’s proffered reasons for striking one black juror (Car-
olyn Wright) while allowing other similarly situated white
jurors to serve on the jury at the sixth trial. We address
each in turn.
A
First, we consider the relevant history of the case.
Recall that in Swain, the Court held that a defendant may
prove racial discrimination by establishing a historical
pattern of racial exclusion of jurors in the jurisdiction in
question. Indeed, under Swain, that was the only way
that a defendant could make out a claim that the State
discriminated on the basis of race in the use of peremptory
challenges.
In Batson, the Court ruled that Swain had imposed too
heavy a burden on defendants seeking to prove that a
prosecutor had used peremptory strikes in a racially dis-
criminatory manner. Batson lowered the evidentiary
burden for defendants to contest prosecutors’ use of per-
emptory strikes and made clear that demonstrating a
history of discriminatory strikes in past cases was not
necessary.
In doing so, however, Batson did not preclude defend-
ants from still using the same kinds of historical evidence
that Swain had allowed defendants to use to support a
claim of racial discrimination. Most importantly for pre-
sent purposes, after Batson, the trial judge may still con-
sider historical evidence of the State’s discriminatory
peremptory strikes from past trials in the jurisdiction, just
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Opinion of the Court

as Swain had allowed. After Batson, the defendant may
still cast Swain’s “wide net” to gather “ ‘relevant’ ” evi-
dence. Miller-El II, 545 U. S., at 239–240. A defendant
may rely on “all relevant circumstances.” Batson, 476
U. S., at 96–97.
Here, our review of the history of the prosecutor’s per-
emptory strikes in Flowers’ first four trials strongly sup-
ports the conclusion that his use of peremptory strikes in
Flowers’ sixth trial was motivated in substantial part by
discriminatory intent. (Recall that there is no record
evidence from the fifth trial regarding the race of the
prospective jurors.)
The numbers speak loudly. Over the course of the first
four trials, there were 36 black prospective jurors against
whom the State could have exercised a peremptory strike.
The State tried to strike all 36. The State used its avail-
able peremptory strikes to attempt to strike every single
black prospective juror that it could have struck. (At oral
argument in this Court, the State acknowledged that
statistic. Tr. of Oral Arg. 32.) Not only did the State’s use
of peremptory strikes in Flowers’ first four trials reveal a
blatant pattern of striking black prospective jurors, the
Mississippi courts themselves concluded on two separate
occasions that the State violated Batson. In Flowers’
second trial, the trial court concluded that the State dis-
criminated against a black juror. Specifically, the trial
court determined that one of the State’s proffered rea-
sons—that the juror had been inattentive and was nod-
ding off during jury selection—for striking that juror was
false, and the trial court therefore sustained Flowers’
Batson challenge. In Flowers’ next trial—his third trial—
the prosecutor used all 15 of its peremptories to strike 15
black prospective jurors. The lead opinion of the Missis-
sippi Supreme Court stated: “The instant case presents us
with as strong a prima facie case of racial discrimination
as we have ever seen in the context of a Batson challenge.”
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Opinion of the Court

Flowers, 947 So. 2d, at 935. The opinion further stated
that “the State engaged in racially discriminatory practices
during the jury selection process” and that the “case
evinces an effort by the State to exclude African-
Americans from jury service.” Id., at 937, 939.
To summarize the most relevant history: In Flowers’
first trial, the prosecutor successfully used peremptory
strikes against all of the black prospective jurors. Flowers
faced an all-white jury. In Flowers’ second trial, the pros-
ecutor tried again to strike all of the black prospective
jurors, but the trial court decided that the State could not
strike one of those jurors. The jury consisted of 11 white
jurors and 1 black juror. In Flowers’ third trial, there
were 17 black prospective jurors. The prosecutor used 15
out of 15 peremptory strikes against black prospective
jurors. After one black juror was struck for cause and the
prosecutor ran out of strikes, one black juror remained.
The jury again consisted of 11 white jurors and 1 black
juror. In Flowers’ fourth trial, the prosecutor again used
11 out of 11 peremptory strikes against black prospective
jurors. Because of the large number of black prospective
jurors at the trial, the prosecutor ran out of peremptory
strikes before it could strike all of the black prospective
jurors. The jury for that trial consisted of seven white
jurors and five black jurors, and the jury was unable to
reach a verdict. To reiterate, there is no available infor-
mation about the race of prospective jurors in the fifth
trial. The jury for that trial consisted of nine white jurors
and three black jurors, and the jury was unable to reach a
verdict.
Stretching across Flowers’ first four trials, the State
employed its peremptory strikes to remove as many black
prospective jurors as possible. The State appeared to
proceed as if Batson had never been decided. The State’s
relentless, determined effort to rid the jury of black indi-
viduals strongly suggests that the State wanted to try
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Flowers before a jury with as few black jurors as possible,
and ideally before an all-white jury. The trial judge was
aware of the history. But the judge did not sufficiently
account for the history when considering Flowers’ Batson
claim.
The State’s actions in the first four trials necessarily
inform our assessment of the State’s intent going into
Flowers’ sixth trial. We cannot ignore that history. We
cannot take that history out of the case.
B
We turn now to the State’s strikes of five of the six black
prospective jurors at Flowers’ sixth trial, the trial at issue
here. As Batson noted, a “ ‘pattern’ of strikes against black
jurors included in the particular venire might give rise to
an inference of discrimination.” 476 U. S., at 97.
Flowers’ sixth trial occurred in June 2010. At trial, 26
prospective jurors were presented to potentially serve on
the jury. Six of the prospective jurors were black. The
State accepted one black prospective juror—Alexander
Robinson. The State struck the other five black prospec-
tive jurors—Carolyn Wright, Tashia Cunningham, Edith
Burnside, Flancie Jones, and Dianne Copper. The result-
ing jury consisted of 11 white jurors and 1 black juror.
The State’s use of peremptory strikes in Flowers’ sixth
trial followed the same pattern as the first four trials, with
one modest exception: It is true that the State accepted
one black juror for Flowers’ sixth trial. But especially
given the history of the case, that fact alone cannot insu-
late the State from a Batson challenge. In Miller-El II,
this Court skeptically viewed the State’s decision to accept
one black juror, explaining that a prosecutor might do so
in an attempt “to obscure the otherwise consistent pattern
of opposition to” seating black jurors. 545 U. S., at 250.
The overall record of this case suggests that the same
tactic may have been employed here. In light of all of the
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circumstances here, the State’s decision to strike five of
the six black prospective jurors is further evidence sug-
gesting that the State was motivated in substantial part
by discriminatory intent.
C
We next consider the State’s dramatically disparate
questioning of black and white prospective jurors in the
jury selection process for Flowers’ sixth trial. As Batson
explained, “the prosecutor’s questions and statements
during voir dire examination and in exercising his chal-
lenges may support or refute an inference of discrimina-
tory purpose.” 476 U. S., at 97.
The questioning process occurred through an initial
group voir dire and then more in-depth follow-up question-
ing by the prosecutor and defense counsel of individual
prospective jurors. The State asked the five black pro-
spective jurors who were struck a total of 145 questions.
By contrast, the State asked the 11 seated white jurors a
total of 12 questions. On average, therefore, the State
asked 29 questions to each struck black prospective juror.
The State asked an average of one question to each seated
white juror.
One can slice and dice the statistics and come up with
all sorts of ways to compare the State’s questioning of
excluded black jurors with the State’s questioning of the
accepted white jurors. But any meaningful comparison
yields the same basic assessment: The State spent far
more time questioning the black prospective jurors than
the accepted white jurors.
The State acknowledges, as it must under our prece-
dents, that disparate questioning can be probative of
discriminatory intent. See Miller-El v. Cockrell, 537 U. S.
322, 331–332, 344–345 (2003) (Miller-El I). As Miller-El I
stated, “if the use of disparate questioning is determined
by race at the outset, it is likely [that] a justification for a
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Opinion of the Court

strike based on the resulting divergent views would be
pretextual. In this context the differences in the questions
posed by the prosecutors are some evidence of purposeful
discrimination.” Id., at 344.
But the State here argues that it questioned black and
white prospective jurors differently only because of differ-
ences in the jurors’ characteristics. The record refutes
that explanation.
For example, Dianne Copper was a black prospective
juror who was struck. The State asked her 18 follow-up
questions about her relationships with Flowers’ family and
with witnesses in the case. App. 188–190. Pamela Ches-
teen was a white juror whom the State accepted for the
jury. Although the State asked questions of Chesteen
during group voir dire, the State asked her no individual
follow-up questions about her relationships with Flowers’
family, even though the State was aware that Chesteen
knew several members of Flowers’ family. Compare id., at
83, with id., at 111. Similarly, the State asked no individ-
ual follow-up questions to four other white prospective
jurors who, like Dianne Copper, had relationships with
defense witnesses, even though the State was aware of
those relationships. Those white prospective jurors were
Larry Blaylock, Harold Waller, Marcus Fielder, and Bobby
Lester.
Likewise, the State conducted disparate investigations
of certain prospective jurors. Tashia Cunningham, who is
black, stated that she worked with Flowers’ sister, but
that the two did not work closely together. To try to dis-
prove that statement, the State summoned a witness to
challenge Cunningham’s testimony. Id., at 148–150. The
State apparently did not conduct similar investigations of
white prospective jurors.
It is certainly reasonable for the State to ask follow-up
questions or to investigate the relationships of jurors to
the victims, potential witnesses, and the like. But white
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Opinion of the Court

prospective jurors who were acquainted with the Flowers’
family or defense witnesses were not questioned extensively
by the State or investigated. White prospective jurors
who admitted that they or a relative had been convicted of
a crime were accepted without apparent further inquiry by
the State. The difference in the State’s approaches to
black and white prospective jurors was stark.
Why did the State ask so many more questions—and
conduct more vigorous inquiry—of black prospective jurors
than it did of white prospective jurors? No one can know
for certain. But this Court’s cases explain that disparate
questioning and investigation of prospective jurors on the
basis of race can arm a prosecutor with seemingly race-
neutral reasons to strike the prospective jurors of a par-
ticular race. See Miller-El I, 537 U. S., at 331–332, 344–
345. In other words, by asking a lot of questions of the
black prospective jurors or conducting additional inquiry
into their backgrounds, a prosecutor can try to find some
pretextual reason—any reason—that the prosecutor can
later articulate to justify what is in reality a racially moti-
vated strike. And by not doing the same for white pro-
spective jurors, by not asking white prospective jurors
those same questions, the prosecutor can try to distort the
record so as to thereby avoid being accused of treating
black and white jurors differently. Disparity in question-
ing and investigation can produce a record that says little
about white prospective jurors and is therefore resistant to
characteristic-by-characteristic comparisons of struck
black prospective jurors and seated white jurors. Prosecu-
tors can decline to seek what they do not want to find
about white prospective jurors.
A court confronting that kind of pattern cannot ignore
it. The lopsidedness of the prosecutor’s questioning and
inquiry can itself be evidence of the prosecutor’s objective
as much as it is of the actual qualifications of the black
and white prospective jurors who are struck or seated.
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The prosecutor’s dramatically disparate questioning of
black and white prospective jurors—at least if it rises to a
certain level of disparity—can supply a clue that the pros-
ecutor may have been seeking to paper the record and
disguise a discriminatory intent. See ibid.
To be clear, disparate questioning or investigation alone
does not constitute a Batson violation. The disparate
questioning or investigation of black and white prospective
jurors may reflect ordinary race-neutral considerations.
But the disparate questioning or investigation can also,
along with other evidence, inform the trial court’s evalua-
tion of whether discrimination occurred.
Here, along with the historical evidence we described
above from the earlier trials, as well as the State’s striking
of five of six black prospective jurors at the sixth trial, the
dramatically disparate questioning and investigation of
black prospective jurors and white prospective jurors at
the sixth trial strongly suggests that the State was moti-
vated in substantial part by a discriminatory intent. We
agree with the observation of the dissenting justices of the
Mississippi Supreme Court: The “numbers described above
are too disparate to be explained away or categorized
as mere happenstance.” 240 So. 3d, at 1161 (opinion of
King, J.).
D
Finally, in combination with the other facts and circum-
stances in this case, the record of jury selection at the
sixth trial shows that the peremptory strike of at least one
of the black prospective jurors (Carolyn Wright) was moti-
vated in substantial part by discriminatory intent. As this
Court has stated, the Constitution forbids striking even a
single prospective juror for a discriminatory purpose. See
Foster, 578 U. S., at ___ (slip op., at 9).
Comparing prospective jurors who were struck and not
struck can be an important step in determining whether a
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Batson violation occurred. See Snyder, 552 U. S., at 483–
484; Miller-El II, 545 U. S., at 241. The comparison can
suggest that the prosecutor’s proffered explanations for
striking black prospective jurors were a pretext for dis-
crimination. When a prosecutor’s “proffered reason for strik-
ing a black panelist applies just as well to an otherwise-
similar nonblack panelist who is permitted to serve,
that is evidence tending to prove purposeful discrimina-
tion.” Foster, 578 U. S., at ___ (slip op., at 23) (quotation
altered). Although a defendant ordinarily will try to iden-
tify a similar white prospective juror whom the State did
not strike, a defendant is not required to identify an iden-
tical white juror for the side-by-side comparison to be
suggestive of discriminatory intent. Miller-El II, 545
U. S., at 247, n. 6.
In this case, Carolyn Wright was a black prospective
juror who said she was strongly in favor of the death
penalty as a general matter. And she had a family mem-
ber who was a prison security guard. Yet the State exer-
cised a peremptory strike against Wright. The State said
it struck Wright in part because she knew several defense
witnesses and had worked at Wal-Mart where Flowers’
father also worked.
Winona is a small town. Wright had some sort of con-
nection to 34 people involved in Flowers’ case, both on the
prosecution witness side and the defense witness side.
See, 240 So. 3d, at 1126. But three white prospective
jurors—Pamela Chesteen, Harold Waller, and Bobby
Lester—also knew many individuals involved in the case.
Chesteen knew 31 people, Waller knew 18 people, and
Lester knew 27 people. See ibid. Yet as we explained
above, the State did not ask Chesteen, Waller, and Lester
individual follow-up questions about their connections to
witnesses. That is a telling statistic. If the State were
concerned about prospective jurors’ connections to wit-
nesses in the case, the State presumably would have used
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Opinion of the Court

individual questioning to ask those potential white jurors
whether they could remain impartial despite their rela-
tionships. A “State’s failure to engage in any meaningful
voir dire examination on a subject the State alleges it is
concerned about is evidence suggesting that the explana-
tion is a sham and a pretext for discrimination.” Miller-El
II, 545 U. S., at 246 (internal quotation marks omitted).
Both Carolyn Wright and Archie Flowers, who is the
defendant’s father, had worked at the local Wal-Mart. But
there was no evidence that they worked together or were
close in any way. Importantly, the State did not ask indi-
vidual follow-up questions to determine the nature of their
relationship. And during group questioning, Wright said
she did not know whether Flowers’ father still worked at
Wal-Mart, which “supports an inference that Wright and
Flowers did not have a close working relationship.” 240
So. 3d, at 1163 (King, J., dissenting). And white prospec-
tive jurors also had relationships with members of Flow-
ers’ family. Indeed, white prospective juror Pamela Ches-
teen stated that she had provided service to Flowers’
family members at the bank and that she knew several
members of the Flowers family. App. 83. Likewise, white
prospective juror Bobby Lester worked at the same bank
and also encountered Flowers’ family members. Id., at 86.
Although Chesteen and Lester were questioned during
group voir dire, the State did not ask Chesteen or Lester
individual follow-up questions in order to explore the
depth of their relationships with Flowers’ family. And
instead of striking those jurors, the State accepted them
for the jury. To be sure, both Chesteen and Lester were
later struck by the defense. But the State’s acceptance of
Chesteen and Lester necessarily informs our assessment
of the State’s intent in striking similarly situated black
prospective jurors such as Wright.
The State also noted that Wright had once been sued by
Tardy Furniture for collection of a debt 13 years earlier.
 Cite as: 588 U. S. ____ (2019) 29

Opinion of the Court

Id., at 209. Wright said that the debt was paid off and
that it would not affect her evaluation of the case. Id., at
71, 90–91. The victims in this case worked at Tardy Fur-
niture. But the State did not explain how Wright’s 13-
year-old, paid-off debt to Tardy Furniture could affect her
ability to serve impartially as a juror in this quadruple
murder case. The “State’s unsupported characterization of
the lawsuit is problematic.” 240 So. 3d, at 1163 (King, J.,
dissenting). In any event, the State did not purport to rely
on that reason alone as the basis for the Wright strike,
and the State in this Court does not rely on that reason
alone in defending the Wright strike.
The State also explained that it exercised a peremptory
strike against Wright because she had worked with one of
Flowers’ sisters. App. 209. That was incorrect. The trial
judge immediately stated as much. Id., at 218–219. But
incorrect statements of that sort may show the State’s
intent: When a prosecutor misstates the record in explain-
ing a strike, that misstatement can be another clue show-
ing discriminatory intent.
That incorrect statement was not the only one made by
the prosecutor. The State made apparently incorrect
statements to justify the strikes of black prospective jurors
Tashia Cunningham, Edith Burnside, and Flancie Jones.
The State contradicted Cunningham’s earlier statement
that she had only a working relationship with Flowers’
sister by inaccurately asserting that Cunningham and
Flowers’ sister were close friends. See id., at 84, 220. The
State asserted that Burnside had tried to cover up a Tardy
Furniture suit. See id., at 226. She had not. See id., 70–
71. And the State explained that it struck Jones in part
because Jones was Flowers’ aunt. See id., at 229. That,
too, was not true. See id., at 86–88. The State’s pattern of
factually inaccurate statements about black prospective
jurors suggests that the State intended to keep black
prospective jurors off the jury. See Foster, 578 U. S., at
30 FLOWERS v. MISSISSIPPI

Opinion of the Court

___ (slip op., at 23); Miller-El II, 545 U. S., at 240, 245.
To be sure, the back and forth of a Batson hearing can
be hurried, and prosecutors can make mistakes when
providing explanations. That is entirely understandable,
and mistaken explanations should not be confused with
racial discrimination. But when considered with other
evidence of discrimination, a series of factually inaccurate
explanations for striking black prospective jurors can be
telling. So it is here.
The side-by-side comparison of Wright to white prospec-
tive jurors whom the State accepted for the jury cannot be
considered in isolation in this case. In a different context,
the Wright strike might be deemed permissible. But we
must examine the whole picture. Our disagreement with
the Mississippi courts (and our agreement with Justice
King’s dissent in the Mississippi Supreme Court) largely
comes down to whether we look at the Wright strike in
isolation or instead look at the Wright strike in the context
of all the facts and circumstances. Our precedents require
that we do the latter. As Justice King explained in his
dissent in the Mississippi Supreme Court, the Mississippi
courts appeared to do the former. 240 So. 3d, at 1163–
1164. As we see it, the overall context here requires skep-
ticism of the State’s strike of Carolyn Wright. We must
examine the Wright strike in light of the history of the
State’s use of peremptory strikes in the prior trials, the
State’s decision to strike five out of six black prospective
jurors at Flowers’ sixth trial, and the State’s vastly dis-
parate questioning of black and white prospective jurors
during jury selection at the sixth trial. We cannot just
look away. Nor can we focus on the Wright strike in isola-
tion. In light of all the facts and circumstances, we con-
clude that the trial court clearly erred in ruling that the
State’s peremptory strike of Wright was not motivated in
substantial part by discriminatory intent.
 Cite as: 588 U. S. ____ (2019) 31

Opinion of the Court

* * *
In sum, the State’s pattern of striking black prospective
jurors persisted from Flowers’ first trial through Flowers’
sixth trial. In the six trials combined, the State struck 41
of the 42 black prospective jurors it could have struck. At
the sixth trial, the State struck five of six. At the sixth
trial, moreover, the State engaged in dramatically dispar-
ate questioning of black and white prospective jurors. And
it engaged in disparate treatment of black and white
prospective jurors, in particular by striking black prospec-
tive juror Carolyn Wright.
To reiterate, we need not and do not decide that any one
of those four facts alone would require reversal. All that
we need to decide, and all that we do decide, is that all of
the relevant facts and circumstances taken together estab-
lish that the trial court at Flowers’ sixth trial committed
clear error in concluding that the State’s peremptory
strike of black prospective juror Carolyn Wright was not
motivated in substantial part by discriminatory intent. In
reaching that conclusion, we break no new legal ground.
We simply enforce and reinforce Batson by applying it to
the extraordinary facts of this case.
We reverse the judgment of the Supreme Court of Mis-
sissippi, and we remand the case for further proceedings
not inconsistent with this opinion.

It is so ordered.
 Cite as: 588 U. S. ____ (2019) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 17–9572
_________________

CURTIS GIOVANNI FLOWERS, PETITIONER
v. MISSISSIPPI
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
MISSISSIPPI
[June 21, 2019]

JUSTICE ALITO, concurring.
As the Court takes pains to note, this is a highly un-
usual case. Indeed, it is likely one of a kind. In 1996, four
defenseless victims, three white and one black, were
slaughtered in a furniture store in a small town in Mont-
gomery County, Mississippi, a jurisdiction with fewer than
11,000 inhabitants. One of the victims was the owner of
the store, which was widely frequented by residents of the
community. The person prosecuted for this crime, peti-
tioner Curtis Flowers, an African-American, comes from a
local family whose members make up a gospel group and
have many community ties.
By the time jury selection began in the case now before
us, petitioner had already been tried five times for com-
mitting that heinous and inflammatory crime. Three
times, petitioner was convicted and sentenced to death,
but all three convictions were reversed by the State Su-
preme Court. Twice, the jurors could not reach a unani-
mous verdict. In all of the five prior trials, the State was
represented by the same prosecutor, and as the Court
recounts, many of those trials were marred by racial dis-
crimination in the selection of jurors and prosecutorial
misconduct. Nevertheless, the prosecution at the sixth
trial was led by the same prosecutor, and the case was
tried in Montgomery County where, it appears, a high
2 FLOWERS v. MISSISSIPPI

ALITO, J., concurring

percentage of the potential jurors have significant connec-
tions to either petitioner, one or more of the victims, or
both.
These connections and the community’s familiarity with
the case were bound to complicate a trial judge’s task in
trying to determine whether the prosecutor’s asserted
reason for striking a potential juror was a pretext for
racial discrimination, and that is just what occurred.
Petitioner argues that the prosecution improperly struck
five black jurors, but for each of the five, the prosecutor
gave one or more reasons that were not only facially legit-
imate but were of a nature that would be of concern to a
great many attorneys. If another prosecutor in another
case in a larger jurisdiction gave any of these reasons for
exercising a peremptory challenge and the trial judge
credited that explanation, an appellate court would proba-
bly have little difficulty affirming that finding. And that
result, in all likelihood, would not change based on factors
that are exceedingly difficult to assess, such as the num-
ber of voir dire questions the prosecutor asked different
members of the venire.
But this is not an ordinary case, and the jury selection
process cannot be analyzed as if it were. In light of all
that had gone before, it was risky for the case to be tried
once again by the same prosecutor in Montgomery County.
Were it not for the unique combinations of circumstances
present here, I would have no trouble affirming the deci-
sion of the Supreme Court of Mississippi, which conscien-
tiously applied the legal standards applicable in less unu-
sual cases. But viewing the totality of the circumstances
present here, I agree with the Court that petitioner’s
capital conviction cannot stand.
 Cite as: 588 U. S. ____ (2019) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 17–9572
_________________

CURTIS GIOVANNI FLOWERS, PETITIONER
v. MISSISSIPPI
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
MISSISSIPPI
[June 21, 2019]

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins as
to Parts I, II, and III, dissenting.
On a summer morning in July 1996 in Winona, Missis-
sippi, 16-year-old Derrick “Bobo” Stewart arrived for the
second day of his first job. He and Robert Golden had
been hired by the Tardy Furniture store to replace peti-
tioner Curtis Flowers, who had been fired a few days prior
and had his paycheck docked for damaging store property
and failing to show up for work. Another employee, Sam
Jones, Jr., planned to teach Stewart and Golden how to
properly load furniture.
On Jones’ arrival, he found a bloodbath. Store owner
Bertha Tardy and bookkeeper Carmen Rigby had each
been murdered with a single gunshot to the head. Golden
had been murdered with two gunshots to the head, one at
very close range. And Stewart had been shot, execution
style, in the back of his head. When Jones entered the
store, Stewart was fighting for every breath, blood pouring
over his face. He died a week later.
On the morning of the murders, a .380-caliber pistol was
reported stolen from the car of Flowers’ uncle, and a wit-
ness saw Flowers by that car before the shootings. Offic-
ers recovered .380-caliber bullets at Tardy Furniture and
matched them to bullets fired by the stolen pistol. Gun-
shot residue was found on Flowers’ hand a few hours after
2 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

the murders. A bloody footprint found at the scene
matched both the size of Flowers’ shoes and the shoe style
that he was seen wearing on the morning of the murders.
Multiple witnesses placed Flowers near Tardy Furniture
that morning, and Flowers provided inconsistent accounts
of his whereabouts. Several hundred dollars were missing
from the store’s cash drawer, and $235 was found hidden
in Flowers’ headboard after the murders. 240 So. 3d 1082,
1092–1095, 1107 (Miss. 2017).
In the 2010 trial at issue here, Flowers was convicted of
four counts of murder and sentenced to death. Applying
heightened scrutiny, the state courts found that the evi-
dence was more than sufficient to convict Flowers, that he
was tried by an impartial jury, and that the State did not
engage in purposeful race discrimination in jury selection
in violation of the Equal Protection Clause. Id., at 1096,
1113, 1139, 1135.
The Court today does not dispute that the evidence was
sufficient to convict Flowers or that he was tried by an
impartial jury. Instead, the Court vacates Flowers’ con-
victions on the ground that the state courts clearly erred
in finding that the State did not discriminate based on
race when it struck Carolyn Wright from the jury.
The only clear errors in this case are committed by
today’s majority. Confirming that we never should have
taken this case, the Court almost entirely ignores—and
certainly does not refute—the race-neutral reasons given
by the State for striking Wright and four other black
prospective jurors. Two of these prospective jurors knew
Flowers’ family and had been sued by Tardy Furniture—
the family business of one of the victims and also of one of
the trial witnesses. One refused to consider the death
penalty and apparently lied about working side-by-side
with Flowers’ sister. One was related to Flowers and lied
about her opinion of the death penalty to try to get out of
jury duty. And one said that because she worked with two
 Cite as: 588 U. S. ____ (2019) 3

THOMAS, J., dissenting

of Flowers’ family members, she might favor him and
would not consider only the evidence presented. The state
courts’ findings that these strikes were not based on race
are the opposite of clearly erroneous; they are clearly
correct. The Court attempts to overcome the evident race
neutrality of jury selection in this trial by pointing to a
supposed history of race discrimination in previous trials.
But 49 of the State’s 50 peremptory strikes in Flowers’
previous trials were race neutral. The remaining strike
occurred 20 years ago in a trial involving only one of Flow-
ers’ crimes and was never subject to appellate review; the
majority offers no plausible connection between that strike
and Wright’s.
Today’s decision distorts the record of this case, eviscer-
ates our standard of review, and vacates four murder
convictions because the State struck a juror who would
have been stricken by any competent attorney. I dissent.
I
Twice now, the Court has made the mistake of granting
this case. The first time, this case was one of three that
the Court granted, vacated, and remanded in light of
Foster v. Chatman, 578 U. S. ___ (2016), which involved a
challenge under Batson v. Kentucky, 476 U. S. 79 (1986).
See Flowers v. Mississippi, 579 U. S. ___ (2016). But
“Foster did not change or clarify the Batson rule in any
way,” so remanding was senseless and unproductive:
“Without pointing out any errors in the State Supreme
Court’s analysis” or bothering to explain how Foster was
relevant, “the [Court] simply order[ed] the State Supreme
Court to redo its work.” Flowers, 579 U. S., at ___, ___
(ALITO, J., dissenting) (slip op., at 1, 4).
Unsurprisingly, no one seemed to understand Foster’s
relevance on remand. The defendants simply “re-urge[d]
the arguments [they] had raised” before, and all three
courts promptly reinstated their prior decisions—
4 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

confirming the impropriety of the entire enterprise. 240
So. 3d, at 1117–1118, 1153; State v. Williams, 2013–0283
(La. App. 4 Cir. 9/7/16), 199 So. 3d 1222, 1230, 1238
(pointing out that “Foster did not change the applicable
principles for analyzing a Batson claim”); Ex parte Floyd,
227 So. 3d 1, 13 (Ala. 2016).
Flowers then filed another petition for certiorari, raising
the same question as his first petition: whether a prosecu-
tor’s history of Batson violations is irrelevant when as-
sessing the credibility of his proffered explanations for
peremptory strikes. Under our ordinary certiorari crite-
ria, we would never review this issue. There is no dis-
agreement among the lower courts on this question, and the
question is not implicated by this case—the Mississippi
Supreme Court did consider the prosecutor’s history, see
240 So. 3d, at 1122–1124, 1135, and, to the extent there is
a relevant history here, it is one of race-neutral strikes,
see Part III, infra.
Nonetheless, Flowers’ question presented at least had
the virtue of being a question of law that could affect
Batson’s application. Unchastened by its Foster remand,
however, the Court granted certiorari and changed the
question presented to ask merely whether the Mississippi
Supreme Court had misapplied Batson in this particular
case. In other words, the Court tossed aside any pretense
of resolving a legal question so it could reconsider the
factual findings of the state courts. In so doing, the Court
disregards the rule that “[w]e do not grant a certiorari to
review evidence and discuss specific facts,” United States
v. Johnston, 268 U. S. 220, 227 (1925), particularly where
there are “ ‘concurrent findings of fact by two courts be-
low,’ ” Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 841
(1996).
The Court does not say why it disregarded our tradi-
tional criteria to take this case. It is not as if the Court
lacked better options. See Gee v. Planned Parenthood of
 Cite as: 588 U. S. ____ (2019) 5

THOMAS, J., dissenting

Gulf Coast, Inc., 586 U. S. ___ (2018) (THOMAS, J., dissent-
ing from denial of certiorari). Perhaps the Court lacked
confidence in the proceedings below. Flowers’ case, like
the others needlessly remanded in light of Foster, comes to
us from a state court in the South. These courts are “fa-
miliar objects of the Court’s scorn,” United States v. Wind-
sor, 570 U. S. 744, 795 (2013) (Scalia, J., dissenting),
especially in cases involving race.1
Or perhaps the Court granted certiorari because the
case has received a fair amount of media attention. But if
so, the Court’s action only encourages the litigation and
relitigation of criminal trials in the media, to the potential
detriment of all parties—including defendants. The media
often seeks “to titillate rather than to educate and inform.”
Chandler v. Florida, 449 U. S. 560, 580 (1981). And the
Court has “long recognized that adverse publicity can
endanger the ability of a defendant to receive a fair trial,”
by “influenc[ing] public opinion” and “inform[ing] potential
jurors of . . . information wholly inadmissible at the actual
trial.” Gannett Co. v. DePasquale, 443 U. S. 368, 378
(1979); e.g., Sheppard v. Maxwell, 384 U. S. 333, 356–363
(1966); Irvin v. Dowd, 366 U. S. 717, 725–728 (1961).
Media attention can produce other dangers, too, including
discouraging reluctant witnesses from testifying and
encouraging eager witnesses, prosecutors, defense counsel,
and even judges to perform for the audience. See Estes v.
Texas, 381 U. S. 532, 591 (1965) (Harlan, J., concurring).
Any appearance that this Court gives closer scrutiny to
cases with significant media attention will only exacerbate
these problems and undermine the fairness of criminal
trials.

——————
1 E.g.,
Tharpe v. Sellers, 583 U. S. ___ (2018) (per curiam); Buck v.
Davis, 580 U. S. ___ (2017); Foster v. Chatman, 578 U. S. ___ (2016);
In re Davis, 557 U. S. 952 (2009); Snyder v. Louisiana, 552 U. S. 472
(2008).
6 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

Whatever the Court’s reason for taking this case, we
should have dismissed it as improvidently granted. If the
Court wanted to simply review the state courts’ applica-
tion of Batson, it at least could have had the decency to do
so the first time around. Instead, the Court wasted the
State’s, defendant’s, and lower court’s time and re-
sources—to say nothing of prolonging the ongoing
“ ‘nightmare’ ” of Bobo Stewart’s and the other victims’
families as they await justice. Tr. 3268–3272. And now,
the majority considers it a point of pride to “break no new
legal ground,” ante, at 3, 31, and proceeds to second-guess
the factual findings of two different courts on matters
wholly collateral to the merits of the conviction. If nothing
else, its effort proves the reason behind the rule that we do
not take intensively fact-specific cases.
II
The majority’s opinion is so manifestly incorrect that I
must proceed to the merits. Flowers presented no evi-
dence whatsoever of purposeful race discrimination by the
State in selecting the jury during the trial below. Each of
the five challenged strikes was amply justified on race-
neutral grounds timely offered by the State at the Batson
hearing. None of the struck black jurors was remotely
comparable to the seated white jurors. And nothing else
about the State’s conduct at jury selection—whether trivial
mistakes of fact or supposed disparate questioning—
provides any evidence of purposeful discrimination based
on race.
A
1
The majority focuses its discussion on potential juror
Carolyn Wright, but the State offered multiple race-
neutral reasons for striking her. To begin, Wright lost a
lawsuit to Tardy Furniture soon after the murders, and a
 Cite as: 588 U. S. ____ (2019) 7

THOMAS, J., dissenting

garnishment order was issued against her. App. 71–72;
Record 2697. Noting that Wright claimed the lawsuit
“would not affect her evaluation of the case,” the majority
questions how this lawsuit “could affect [Wright’s] ability
to serve impartially.” Ante, at 29. But the potential bias
is obvious. The “victims in this case” did not merely
“wor[k] at Tardy Furniture.” Ibid. At the time of the
murders, Bertha Tardy owned Tardy Furniture. Follow-
ing her murder, her daughter and son-in-law succeeded
her as owners; they sued Wright, and the daughter testi-
fied at this trial. See App. 71, 209; 240 So. 3d, at 1093; Tr.
1656. Neither the trial court nor Flowers suffered from
any confusion as to how losing a lawsuit to a trial witness
and daughter of a victim might affect a juror. See App.
280, and n. 2; Recording of Oral Arg. 13:40–13:47 in No.
2010–DP–01328–SCT (Miss., July 14, 2014) (Flowers’
counsel arguing that “ ‘the potential jurors who were
sued by’ ” Tardy had more “ ‘basis for being upset with
her’ ” than Flowers did), https://judicial.mc.edu/case.
php?id=1122570. Indeed, a portion of the daughter’s
testimony focused on obtaining judgments and garnish-
ments against customers who did not pay off their ac-
counts. Tr. 2672–2674.
Faced with this strong race-neutral reason for striking
Wright, the majority first suggests that the State did not
adequately explain how the lawsuit could affect Wright.
But it is obvious, and in any event the majority is wrong—
the State did spell it out. See App. 209 (“ ‘She was sued by
Tardy Furniture, after these murders, by the family mem-
bers that will be testifying here today’ ”). Moreover, Flow-
ers did not ask for further explanation, instead claiming
that “ ‘there is no evidence of an actual lawsuit,’ ” id., at
211, even though Wright had admitted it, id., at 71–72.
The State then entered into the record a copy of the judg-
ment containing a garnishment amount. Id., at 215; see
Record 2697.
8 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

Second, the majority quotes the dissent below for the
proposition that the “ ‘State’s unsupported characteriza-
tion of the lawsuit is problematic.’ ” Ante, at 29. But the
Court neglects to mention that the dissent’s basis for this
statement was that “[n]othing in the record supports the
contention that Wright’s wages were garnished.” 240 So.
3d, at 1162 (King, J., dissenting). Again, that is incorrect.
See Record 2697.
Finally, the majority dismisses the lawsuit’s significance
because “the State did not purport to rely on that reason
alone as the basis for the Wright strike.” Ante, at 29
(emphasis added). But the fact that the State had addi-
tional race-neutral reasons to strike Wright does not make
the lawsuit any less of a race-neutral reason. As the State
explained, Wright knew nearly every defense witness and
had worked with Flowers’ father at what the trial court
described as the “ ‘smallest Wal-Mart . . . that I know in
existence.’ ” App. 218. The majority tries to minimize this
connection by pointing out that “Wright said she did not
know whether Flowers’ father still worked at Wal-Mart.”
Ante, at 28. That is understandable, given that Wright
testified that she no longer worked at the Wal-Mart. Tr.
782. The majority misses the point: Wright had worked in
relatively close proximity with the defendant’s father.2
2
The majority, while admonishing trial courts to “consider
the prosecutor’s race-neutral explanations,” ante, at 17,
completely ignores the State’s race-neutral explanations
for striking the other four black jurors.
Tashia Cunningham stated repeatedly that she
——————
2 The majority also complains that the State did not ask enough “follow-

up questions” of Wright. Ante, at 28. I see no reason why the State
needed more information. Besides, if the State had asked more ques-
tions, the majority would complain that the State engaged in “dramati-
cally disparate” questioning of Wright.
 Cite as: 588 U. S. ____ (2019) 9

THOMAS, J., dissenting

“ ‘d[id]n’t believe in the death penalty’ ” and would “ ‘not
even consider’ ” it. App. 129; see 2d Supp. Record 256b.
When pressed by the trial court on this point, she vacillated,
saying that she “ ‘d[id]n’t think’ ” she could consider the
death penalty but then, “ ‘I might. I might. I don’t know.
I might.’ ” App. 130. Opposition to the death penalty is
plainly a valid, race-neutral reason for a strike. Moreover,
Cunningham knew Flowers’ sister, having worked with
her on an assembly line for several years. Id., at 83–85.
She testified that they did not work in close proximity, but
a supervisor testified that they actually worked “ ‘side by
side.’ ” Id., at 149–152. Both this apparent misstatement
and the fact that Cunningham worked with Flowers’ sister
are valid, race-neutral reasons.
Next, Edith Burnside knew Flowers personally. Flowers
had visited in her home, lived one street over, and played
basketball with her sons. Id., at 75, 79–80. Burnside also
testified repeatedly that she “ ‘could not judge anyone,’ ” no
“ ‘matter what the case was,’ ” id., at 69–70, 143–144, and
that her “ ‘problem with judging’ ” could “ ‘affect [her]
judgment’ ” here, id., at 144. Finally, she too was sued by
Tardy Furniture soon after the murders, and a garnish-
ment order was entered against her. See id., at 71, 141–
142; Tardy Furniture Co. v. Burnside, Civ. No. 1359 (Jus-
tice Ct. Montgomery Cty., Miss., June 23, 1997), Dkt. 13,
p. 553.
Next, Dianne Copper had worked with both Flowers’
father and his sister for “ ‘a year or two’ ” each. App. 77,
189, 234, 236. She agreed that because of these relation-
ships and others with various defense witnesses, she
might “ ‘lean toward’ ” Flowers and would be unable to
“ ‘come in here . . . with an open mind.’ ” Id., at 190; see
id., at 78. She also said that deciding the case on “ ‘the
evidence only’ ” would make her “ ‘uncomfortable.’ ” Id., at
191–192.
Finally, as to Flancie Jones, Flowers conceded below
10 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

that he “did not challenge [her] strike” and that “ ‘the
State’s bases for striking Jones appear to be race neu-
tral.’ ” Supp. Brief for Appellant in No. 2010–DP–01348–
SCT (Miss.), p. 20, n. 12. Because any argument as to
Jones “was not raised below, it is waived.” Sprietsma v.
Mercury Marine, 537 U. S. 51, 56, n. 4 (2002). Even if
Flowers had not waived this argument, this strike was
obviously supported by race-neutral reasons. Jones was
related to Flowers in several ways. See App. 73, 179. She
was late to court on multiple occasions. Id., at 180, 182.
On her juror questionnaire, she said she was “ ‘strongly
against the death penalty,’ ” but when asked about her
opposition, said, “ ‘I guess I’d say anything to get off ’ ” jury
duty. Id., at 181; see 2d Supp. Record 325b. She then
admitted that she was not necessarily “being truthful” on
her questionnaire but refused to provide her actual view
on the death penalty, saying, “ ‘I—really and truly . . .
don’t want to be here.’ ” App. 181–182.
3
In terms of race-neutral validity, these five strikes are
not remotely close calls. Each strike was supported by
multiple race-neutral reasons articulated by the State at
the Batson hearing and supported by the record. It makes
a mockery of Batson for this Court to tell prosecutors to
“provide race-neutral reasons for the strikes,” and to tell
trial judges to “consider the prosecutor’s race-neutral
explanations in light of all of the relevant facts and cir-
cumstances,” ante, at 17, and then completely ignore the
State’s reasons for four out of five strikes.
Only by ignoring these facts can the Court assert that
“the State’s decision to strike five of the six black prospec-
tive jurors is further evidence suggesting that the State
was motivated in substantial part by discriminatory in-
tent.” Ante, at 23. Putting aside the fact that the majority
has its numbers wrong (the State struck five of seven
 Cite as: 588 U. S. ____ (2019) 11

THOMAS, J., dissenting

potential black jurors),3 the bare numbers are meaningless
outside the context of the reasons for the strikes. The
majority has no response whatsoever to the State’s race-
neutral explanations and, for four of the five strikes, does
not dispute the state courts’ conclusion that race played no
role at all. For Batson purposes, these strikes might as
well have been exercised against white jurors. Yet the
majority illegitimately counts them all against the State.
B
Given the multiple race-neutral reasons for the State’s
strikes, evidence of racial discrimination would have to be
overwhelming to show a Batson violation. The majority’s
evidence falls woefully short.
As the majority explains, “comparing prospective jurors
who were struck and not struck can be an important step
in determining whether a Batson violation occurred.”
Ante, at 26–27. For example, “[w]hen a prosecutor’s ‘prof-
fered reason for striking a black panelist applies just as
well to an otherwise-similar nonblack panelist who is
permitted to serve, that is evidence tending to prove pur-
poseful discrimination.’ ” Ante, at 27. By the same token,
a defendant’s failure to find any similarly-situated whites
permitted to serve tends to disprove purposeful discrimi-
nation. Here, neither the majority nor Flowers has identi-
fied any nonstruck white jurors remotely similar to any of
the struck black jurors.
The majority points to white jurors Pamela Chesteen
and Bobby Lester, who worked at the Bank of Winona and
therefore had interacted with several members of Flowers’
family as bank customers. By the majority’s lights, Ches-
——————
3 The majority ignores the fact that, after the initial Batson challenge,

the State tendered a black juror as an alternate instead of exercising
available peremptory strikes. The State also tendered the first black
juror available. This is hardly a “ ‘consistent pattern’ ” of strikes
against black jurors. Ante, at 22.
12 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

teen’s and Lester’s banker-customer relationship was the
same as Wright’s co-worker relationship with Flowers’
father. Ante, at 27–28. That comparison is untenable.
Lester testified that working at the bank meant he and
Chesteen “ ‘s[aw] everyone in town.’ ” App. 86. And as the
trial court explained, “a bank teller, who waits on custom-
ers at a bank,” has a “substantially different” relationship
from someone who “work[s] at the same business estab-
lishment with members of the defendant’s family.” Id., at
278; see id., at 236. The Mississippi Supreme Court
agreed that “a coworker relationship” and “employee/
customer relationship are distinguishable.” 240 So. 3d, at
1127. The majority mentions none of this, evidently rely-
ing on its superior knowledge of the banker-customer
relationships at the Bank of Winona.
The more relevant comparator to Chesteen and Lester is
Alexander Robinson, a black man who was a customer at a
store where Flowers’ brother worked. App. 82. The State
confirmed with Robinson that this relationship was “ ‘just
a working relationship’ ”—i.e., an employee-customer
relationship—and immediately thereafter clarified with
Chesteen and Lester that their relationships with Flowers’
family members was “ ‘like Mr. Robinson, just a working
relationship.’ ” Id., at 82–83, 85–86.4 The State then
tendered Robinson, Chesteen, and Lester as jurors. Id., at
203, 208. Later, the State would strike black jurors
Wright and Copper, who were both co-workers of members
of Flowers’ family. As the trial court understood, it is
“evident . . . that the prosecution utilized peremptory
strikes only against those individuals who actually worked
with, or who in the past had worked with, members of
Flowers’ family.” Id., at 278; see id., at 279.
——————
4 Thus, the majority is simply wrong to complain that the State failed

to ask Chesteen or Lester “individual follow-up questions” on this issue.
Ante, at 28.
 Cite as: 588 U. S. ____ (2019) 13

THOMAS, J., dissenting

Next, the majority contends that white jurors Chesteen,
Lester, and Harold Waller, like Wright, “knew many
individuals involved in the case.” Ante, at 27. Yet the
majority concedes that Wright knew more individuals
than any of them. And the more relevant statistic from
the State’s perspective is how many defense witnesses a
juror knows, since that knowledge suggests a greater
connection to the defendant. By Flowers’ own count,
Wright knew substantially more defense witnesses than
the three white jurors. According to Flowers, Wright
knew 19 defense witnesses, while Chesteen knew 14 and
Lester and Waller knew around 6 each. See Brief for
Petitioner 49, n. 37; Brief for Appellant in No. 2010–DP–
01348–SCT (Miss.), p. 114.
Additional relevant differences existed between Wright
and the three white jurors. Wright had been sued by a
witness and member of the victim’s family, and worked at
the same store as the defendant’s father. Chesteen, on the
other hand, was friends with the same member of the
victim’s family and also knew another victim’s wife. App.
93–94, 46. The trial court found that Chesteen “had a
much closer relationship with members of the victim[s’]
families tha[n] she had with anyone in Flowers’ family.”
Id., at 278.
Likewise, Waller knew victim Carmen Rigby and her
husband; their children attended school with his daughter,
and “ ‘[t]hey were involved in school activities together.’ ”
Tr. 821, 1042. He served on the school board with Rigby.
Id., at 1043. And victim Bobo Stewart “ ‘went to school
with [Waller’s] daughter,’ ” and Waller knew his family.
App. 48, 53.
Similarly, Lester had been friends with Rigby’s husband
“ ‘for years,’ ” and he “ ‘knew her family.’ ” Tr. 822, 1045.
Lester’s wife taught Stewart first grade. App. 48; Tr.
1045. Lester was related by marriage to Bertha Tardy
and had known the Tardy family his entire life, growing
14 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

up with Bertha’s daughter. Id., at 787–788. His daughter
had just graduated with Bertha’s grandson, and they were
friends. Id., at 788, 1046. As Lester put it, “ ‘I have a lot
of connections to the [victims’] families.’ ” Id., at 788.
Given that these prospective jurors were favorable for
the State, it is hardly surprising that the State would not
affirmatively “us[e] individual questioning to ask th[e]se
potential white jurors whether they could remain impar-
tial despite their relationships” with victims’ families or
prosecution witnesses, ante, at 27–28, for to do so could
invite defense strikes. Revealingly, Flowers’ counsel had
exhaustively questioned these three white jurors—
treating them much differently than Wright. Flowers’
counsel asked Wright only a handful of questions, all of
which sought to confirm that she could judge impartially.
App. 90–91, 105–106. By contrast, Flowers’ counsel asked
Chesteen more than 30 questions, most of which sought to
cast doubt on Chesteen’s ability to remain impartial given
her relationships with the victims’ families. Id., at 93–95,
111–118. Flowers’ counsel asked Lester more than 60
questions and Waller about 15 questions along the same
lines. Tr. 1045–1047; App. 160–174; Tr. 1042–1044; App.
123–124. Flowers was so concerned about these white
jurors’ connections with the victims that he tried to strike
both Chesteen and Lester—but not Wright—for cause, and
when that failed, he exercised peremptory strikes on all
three white jurors. Tr. 1622, 1624, 1743–1744; App. 204,
208; see id., at 278.
In short, no reasonable litigant or trial court would
consider Wright “similarly situated,” ante, at 28, to these
three white jurors.
C
The majority next discovers “clue[s]” of racial discrimi-
nation in minor factual mistakes supposedly made by the
State during the Batson hearing. Ante, at 29–30. As an
 Cite as: 588 U. S. ____ (2019) 15

THOMAS, J., dissenting

initial matter, Flowers forfeited this argument by failing
to present it to the trial court. Under Batson, the trial
court must decide whether, “in light of the parties’ submis-
sions,” “the defendant has shown purposeful discrimina-
tion.” Snyder v. Louisiana, 552 U. S. 472, 477 (2008)
(emphasis added; internal quotation marks omitted). The
Court has made clear that “a prosecutor simply has got to
state his reasons as best he can [at the Batson hearing]
and stand or fall on the plausibility of the reasons he
gives.” Miller-El v. Dretke, 545 U. S. 231, 252 (2005).
The same rule must apply to the defendant, the party
with the ultimate burden of proving purposeful discrimi-
nation. Johnson v. California, 545 U. S. 162, 170–171
(2005); Batson, 476 U. S., at 96–98. Thus, if the defendant
makes no argument on a particular point, the trial court’s
failure to consider that argument cannot be erroneous,
much less clearly so. See, e.g., Davis v. Baltimore Gas and
Elec. Co., 160 F. 3d 1023, 1027–1028 (CA4 1998); Wright v.
Harris County, 536 F. 3d 436, 438 (CA5 2008). Excusing
the defendant from making his arguments before the trial
court encourages defense counsel to remain silent, pre-
vents the State from responding, deprives the trial court of
relevant arguments, and denies reviewing courts a suffi-
cient record. See Snyder, supra, at 483; Garraway v.
Phillips, 591 F. 3d 72, 76–77 (CA2 2010).5
Even if Flowers had not forfeited his argument about
the State’s “mistakes,” it is devoid of merit. The Batson
hearing was conducted immediately after voir dire, before
a transcript was available. App. 214; id., at 225–226. In
——————
5 At a minimum, Mississippi has reasonably read Batson’s “ ‘prophy-

lactic framework,’ ” Johnson v. California, 545 U. S. 162, 174 (2005)
(THOMAS, J., dissenting), to mean that the party making a Batson claim
forfeits arguments not made to the trial court. See Pitchford v. State,
45 So. 3d 216, 227–228 (Miss. 2010); accord, Record 2965. Thus,
whether as a matter of Batson itself or the State’s implementation of
Batson, Flowers forfeited these arguments.
16 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

explaining their strikes, counsel relied on handwritten
notes taken during a fast-paced, multiday voir dire involv-
ing 156 potential jurors. Id., at 229, 258. Still, the major-
ity comes up with only a few mistakes, and they are either
imagined or utterly trivial. The majority claims that the
State incorrectly “asserted that Burnside”—one of the
struck black jurors—“had tried to cover up a Tardy Furni-
ture suit.” Ante, at 29. But the State’s assertion was at
least reasonable. When the State asked Burnside about
the lawsuit, she responded that “ ‘[i]t wasn’t a dispute’ ”
and “ ‘[w]e never had no misunderstanding about it.’ ”
App. 141–142. Quite reasonably, the State asked why the
matter ended up in court, and Burnside conceded that she
had to be sued, even as she insisted that there “ ‘was no
falling-out about it.’ ” Id., at 142. As previously explained,
a judgment and garnishment were issued against her.
The majority’s other supposed mistakes are inconse-
quential. First, the State confused which potential juror
worked with Flowers’ sister, and then corrected its mis-
take. See id., at 218–219, 234. Second, the State referred
to that juror, Tashia Cunningham, as “ ‘a close friend’ ” of
Flowers’ sister, whereas the testimony established only
that they worked together closely. Id., at 220. Flowers
agreed with the “ ‘friendship’ ” characterization during the
Batson hearing, id., at 221, and in any event, whether
Cunningham and Flowers’ sister were close co-workers or
close friends is irrelevant. Third, the State confused
struck juror Flancie Jones’ familial relationships with
Flowers, saying that Flowers’ sister was Jones’ niece,
when in fact Flowers’ sister was apparently married to
Jones’ nephew. Id., at 229, 231. But whatever the precise
relationship, even Flowers conceded that Jones had an
“ ‘in-law relationship to the entire [Flowers] family,’ ” so
the relevant point remained: Jones was related in multiple
ways to Flowers. Id., at 230–231; Tr. 967–968. It is hard
to imagine less significant “mistakes.”
 Cite as: 588 U. S. ____ (2019) 17

THOMAS, J., dissenting

Tellingly, Flowers’ counsel, although aided by “ ‘many
interns,’ ” App. 214, made many more mistakes during this
process. E.g., id., at 204–205 (incorrectly identifying a
juror); id., at 207–208 (striking a juror and then immedi-
ately making an argument premised on not striking that
juror); id., at 210 (confusing jurors); id., at 211 (confusing
which family members were acquainted with a juror); id.,
at 212 (incorrectly stating that no general question was
asked of all jurors as to accounts or suits with the Tardys,
see id., at 70, 217); id., at 222–223 (confusing jurors); id.,
at 230 (“ ‘[M]aybe we didn’t get to this juror’ ”).6
In short, in the context of the trial below, a few trivial
errors on secondary or tertiary race-neutral reasons for
striking some jurors can hardly be counted as “telling”
evidence of race discrimination. Ante, at 30; see ibid.
(“[M]istaken explanations should not be confused with
racial discrimination”).

——————
6 These mistakes continued before this Court. Flowers asserts that in

his first four trials, the State “struck every black panelist that [it]
could,” Brief for Petitioner 23; that is false. See infra, at 30. Flowers
says that the State asked potential juror Robinson “a total of five
questions,” Brief for Petitioner 15, n. 14, but it actually asked 10. See
App. 82–83; Tr. 1147–1148. Flowers says that the State “did not
question [Robinson] on [his] relationship” with Flowers’ brother, Brief
for Petitioner 46, n. 35; it did. See App. 82–83. Flowers refers to
Bertha Tardy’s “son,” Brief for Petitioner 52, but Tardy’s only child was
a daughter. See Tr. 3268. Flowers says that “the Mississippi Supreme
Court found two clear Batson violations” in the third trial, Brief for
Petitioner 32; it did not. See infra, at 28–29. Flowers repeatedly refers
to “the decidedly false claim that Wright’s” and Burnside’s “wages had
been garnished,” Brief for Petitioner 56, 50, 18, 22, n. 24, 51; Tr. of Oral
Arg. 8, 11, 12, even though that claim is true. See supra, at 6–9.
Flowers said that Wright “still work[ed]” at Wal-Mart at the time of
jury selection, Tr. of Oral Arg. 16; she did not. Tr. 782. Flowers agreed
that in this trial, the State struck “every black juror that was available
on the panel” after “the first one,” Tr. of Oral Arg. 57–58; Reply Brief 1,
but it did not. See App. 241 (tendering a black juror as an alternate).
18 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

D
Turning to even less probative evidence, the majority
asserts that the State engaged in disparate—
“dramatically disparate,” the majority repeats, ante, at 2,
19, 23, 26, 31—questioning based on race. By the major-
ity’s count, “[t]he State asked the five black prospective
jurors who were struck a total of 145 questions” and “the
11 seated white jurors a total of 12 questions.” Ante, at
23. The majority’s statistical “evidence” is irrelevant and
misleading.
First, the majority finds that only one juror—Carolyn
Wright—was struck on the basis of race, but it neglects to
mention that the State asked her only five questions. See
App. 71–72, 104–105. Of course, the majority refuses to
identify the “certain level of disparity” that meets its
“dramatically disparate” standard, ante, at 26, but its
failure to recognize that the only juror supposedly discrim-
inated against was asked hardly any questions suggests
the majority is “slic[ing] and dic[ing]” statistics, ante, at
23. Asking other black jurors more questions would be an
odd way of “try[ing] to find some pretextual reason” to
strike Wright. Ante, at 25.
Second, both sides asked a similar number of questions
to the jurors they peremptorily struck. This is to be ex-
pected—a party will often ask more questions of jurors
whose answers raise potential problems. Among other
reasons, a party may wish to build a case for a cause
strike, and if a cause strike cannot be made, those jurors
are more likely to be peremptorily struck. Here, Flowers
asked the jurors he struck—all white, Tr. of Oral Arg.
57—an average of about 40 questions, and the State asked
the black jurors it struck an average of about 28 questions.
The number of questions asked by the State to these
jurors is not evidence of race discrimination.
Moreover, the majority forgets that correlation is not
causation. The majority appears to assume that the only
 Cite as: 588 U. S. ____ (2019) 19

THOMAS, J., dissenting

relevant difference between the black jurors at issue and
seated white jurors is their race. But reality is not so
simple. Deciding whether a statistical disparity is caused
by a particular factor requires controlling for other poten-
tially relevant variables; otherwise, the difference could be
explained by other influences. See Fisher, Multiple Re-
gression in Legal Proceedings, 80 Colum. L. Rev. 702, 709
(1980); cf. Box v. Planned Parenthood of Indiana & Ken-
tucky, Inc., 587 U. S. ___, ___, n. 4 (2019) (THOMAS, J.,
concurring) (slip op., at 9, n. 4) (showing that bare statisti-
cal disparities can be used to support diametrically differ-
ent theories of causation). Yet the majority’s raw compar-
ison of questions does not control for any of the important
differences between struck and seated jurors. See supra,
at 11–14. This defective analysis does not even begin to
provide probative evidence of discrimination. See, e.g.,
People Who Care v. Rockford Bd. of Ed., School Dist. No.
205, 111 F. 3d 528, 537–538 (CA7 1997) (Posner, C. J.)
(“[A] statistical study that fails to correct for salient ex-
planatory variables, or even to make the most elementary
comparisons, has no value as causal explanation”). In-
deed, it is difficult to conceive of a statistical study that
could possibly control for all of the relevant variables in
this context, including tone of voice, facial expressions,
and other relevant information.
Most fundamentally, the majority’s statistics are di-
vorced from the realities of this case. Winona is a very
small town, and “ ‘this was the biggest crime that had ever
occurred’ ” there. Tr. 1870. As one juror explained,
“ ‘[e]verybody in Winona has probably’ ” heard about the
case. Id., at 1180; accord, id., at 1183 (Flowers’ counsel
stating the same). One potential juror knew almost every-
one “ ‘involved in it’ ” between her job as a teacher and
attendance at church. App. 81–82. Tardy Furniture
“‘basically did business with the whole Winona community.’”
Tr. 2667.
20 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

Moreover, Flowers’ family was “ ‘very, very prominent’ ”
in Winona’s black community. Id., at 1750. As the trial
court explained,
“ ‘Flowers has a number of brothers and sisters. His
parents are well-known. [His father] is apparently
one of the most well-thought of people in this commu-
nity. You have had countless numbers of African-
American individuals that have come in and said they
could not sit in judgment because of their knowledge
of Mr. Flowers, and they could not be fair and impar-
tial.’ ” App. 197; see id., at 199–200; Tr. 1750.
Flowers’ counsel stated that when Flowers’ father “ ‘was
working as a greeter at Wal-Mart,’ ” there was “ ‘probably
not a person in Winona who wouldn’t have said, “Mr.
Archie’s my friend.” ’ ” App. 221. According to the trial
court, “the overwhelming majority” of potential black
jurors “stated that they could not sit in judgment of him
because of kinships, friendships, and family ties.” Id.,
at 256.
To obtain a sufficient jury pool, the trial court had to
call 600 potential jurors. Id., at 258. In such a small
county, that meant a man, his wife, his mother, and his
father were all called for jury duty in this case. See Tr.
939–941. According to Flowers,
“seventy-five percent of the total qualified venire, sixty-
three percent of the venire members actually ten-
dered for acceptance or rejection as jurors, and forty
percent of the persons empanelled as jurors or alter-
nates (six of 15) were personally acquainted with ei-
ther the defendant or one or more of the decedents
or their families and/or had actual opinions as to guilt
or innocence formed prior [to] the trial.” Brief for
Appellant 130.
Before peremptory strikes even started, the venire had
 Cite as: 588 U. S. ____ (2019) 21

THOMAS, J., dissenting

gone from 42% to 28% black. App. 194–195. As the trial
court explained, “ ‘nothing the State has done has caused
this statistical abnormality.’ ” Id., at 198. Instead, any
“ ‘statistical abnormality’ ” “ ‘is strictly because of the prom-
inence of [Flowers’] family.’ ” Id., at 200. Flowers’ counsel
admitted that she was not “ ‘surprise[d]’ ” by the reduction
given the circumstances and the experiences in the previ-
ous trials. Id., at 199.7
The state courts appropriately viewed the parties’ ques-
tioning in light of these circumstances. The Mississippi
Supreme Court, for example, found that the State “asked
more questions” of the “jurors who knew more about the
case, who had personal relationships with Flowers’s family
members, who said they could not be impartial, or who
said they could not impose the death penalty,” and that
“[t]hose issues are appropriate for followup questions.”
240 So. 3d, at 1125. The court also found that “[t]he
State’s assertion that elaboration and followup questions
were needed with more of the African-American jurors is
supported by the record.” Ibid. The majority wonders
why “the State spent far more time questioning the black
prospective jurors” and concludes that “[n]o one can
know.” Ante, at 23, 25. But even Flowers admits that
“more African-American jurors knew the parties, most of
the [State’s] follow-up questions pertained to relevant
matters, [and] more questions were asked of jurors who
had personal relationships about the case, or qualms
——————
7 One trial had to be moved to a new venue because “during voir dire

it became apparent that a fair and impartial jury could not be impan-
eled.” Flowers v. State, 842 So. 2d 531, 535 (Miss. 2003). At another
trial, one of two black jurors seated was “excused after he informed the
judge that he could not be a fair and impartial juror.” Flowers v. State,
947 So. 2d 910, 916 (Miss. 2007). And at the next trial, one of the
alternate jurors, who was black, was convicted of perjury after it came
to light that she had lied during voir dire about not knowing Flowers
and had visited him in jail. Flowers v. State, 240 So. 3d 1082, 1137
(Miss. 2017).
22 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

about the death penalty.” Pet. for Cert. 23 (emphasis
deleted).
The majority ignores Flowers’ concession, but the ques-
tions asked by the State bear it out. The State’s questions
also refute the majority’s suggestion that the State did not
“not as[k] white prospective jurors th[e] same questions.”
Ante, at 25. The State asked all potential jurors whether
Tardy Furniture sued them, and only Wright and Burn-
side answered in the affirmative. See App. 70–71, 99–100,
217–218. Two of five questions to Wright and around
eight questions to Burnside followed up on this lawsuit.
Id., at 70–72, 141–143. All potential jurors were asked
whether they knew Flowers’ father, and no white jurors
had worked with him at Wal-Mart. Id., at 61, 218. Two of
Wright’s remaining three questions followed up on this
relationship. Id., at 104–105. The State asked all poten-
tial jurors whether anyone lived in the areas around Flow-
ers’ house, and no white jurors answered in the affirma-
tive. Id., at 75–81. Seven questions to Copper—another
black prospective juror—and three to Burnside followed
up on this geographic proximity. Id., at 75–77, 79–80.
Copper’s remaining questions were mostly about her
working with Flowers’ father and sister and her statement
that she would lean in Flowers’ favor. Id., at 77–78, 189–
190. Burnside’s remaining questions were mostly about
Flowers’ visits to her house and her statement that she
could not judge others. Id., at 80–81, 143–144. The State
asked all potential jurors whether anyone was related to
Flowers’ family, and only Jones, a black prospective juror,
answered affirmatively, leading to about 18 follow-up
questions. Id., at 72–75, 86–88, 179–180. Jones’ remain-
ing questions were mostly about her being late to court
and her untruthful answer regarding the death penalty on
the jury questionnaire. Id., at 75, 180–182. Finally, nearly
all of Cunningham’s questions were about her work with
Flowers’ sister. Id., at 83–85, 130–133. Any reasonable
 Cite as: 588 U. S. ____ (2019) 23

THOMAS, J., dissenting

prosecutor would have followed up on these issues, and
the majority does not cite even a single question that it
thinks suggests racial discrimination.
The majority’s comparison of the State’s questions to
Copper with its questions to several white jurors is base-
less. As an initial matter, Flowers forfeited this argument
by not making it at the trial court. See supra, at 14–15;
App. 235–238. And as the Court has previously explained,
“a retrospective comparison of jurors based on a cold ap-
pellate record may be very misleading when alleged simi-
larities were not raised at trial” because “an exploration of
the alleged similarities at the time of trial might have
shown that the jurors in question were not really compa-
rable.” Snyder, 552 U. S., at 483.
Even if Flowers had not forfeited this argument, it is
meritless. As previously discussed, Copper worked with
two of Flowers’ family members and testified that she
could “ ‘lean toward’ ” Flowers and would not decide the
case “ ‘with an open mind.’ ” App. 190; see id., at 78.
These answers justified heavier questioning than was
needed for Chesteen, the white bank teller who occasionally
served Flowers’ family members. Moreover, the State did
ask Chesteen and Lester, a white juror who also worked at
the bank, “follow-up questions about [their] relationships
with Flowers’ family.” Ante, at 24; see App. 83, 86.8 I
have already addressed Lester and Waller, another white
juror who had connections to the victims, and why the
State did not need to ask them more questions. See supra,
at 11–14. The majority also references Larry Blaylock and
Marcus Fielder, two other white prospective jurors who
“had relationships with defense witnesses.” Ante, at 24.
——————
8 The majority seems to draw a distinction between individual ques-

tions asked during group voir dire and individual questions asked
during individual voir dire. Ante, at 23–24. I cannot imagine why this
distinction would matter here. The majority does not explain its
reasoning, and its statistics treat these questions the same.
24 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

As for Blaylock, the majority makes no attempt to say
what those “relationships” were, presumably because the
only relationship discussed at the Batson hearing was
Blaylock’s 30-year friendship with the prosecutor’s primary
investigator—whom the defense planned to call as a hos-
tile witness. App. 215; Tr. 1041–1042. The investigator
was also his uncle by marriage, id., at 1078, and the de-
fense asked Blaylock some 46 questions. Id., at 1041–
1042, 1078, 1182–1187. Likewise, Fielder’s only relation-
ship discussed at the Batson hearing was his work for a
prosecution witness who had investigated the murders.
See App. 215. The defense felt it necessary to ask Fielder
about 30 follow-up questions. Tr. 1255–1260. In short,
despite the majority’s focus on Copper, ante, at 24, no one
could (or did) compare the State’s need to question her
with its need to question these jurors.
Next, the majority complains that the State had a wit-
ness testify that Cunningham worked closely with Flow-
ers’ sister. According to the majority, “[t]he State appar-
ently did not conduct similar investigations of white
prospective jurors.” Ibid. Putting aside that the majority
offers no record support for this claim, the majority does
not tell us what investigation was performed, much less
which white jurors could or should have been similarly
investigated. As far as the record reveals, the State made
one call to Cunningham’s employer on the morning of the
hearing to ask a single question: Where did Cunningham
work in relation to Flowers’ sister? App. 149, 154. I see
no reason to assume that the State failed to conduct any
other single-phone-call “investigations” in this high-profile
trial. Nor am I aware of white jurors who worked in any
proximity to Flowers’ family members. If the majority is
going to infer racial bias from the State’s attempt to pre-
sent the truth in court—particularly in a case where juror
perjury had been a problem, see supra, at 21, n. 7—it
ought to provide a sound basis for its criticism.
 Cite as: 588 U. S. ____ (2019) 25

THOMAS, J., dissenting

Finally, to support its view that “[t]he difference in the
State’s approaches to black and white prospective jurors
was stark,” the majority asserts that “[w]hite prospective
jurors who admitted that they or a relative had been
convicted of a crime were accepted without apparent
further inquiry by the State.” Ante, at 25. The majority
again cites nothing to support this assertion, and the
record does not support it. Three of the struck black ju-
rors had relatives with a criminal conviction. See Tr. 883
(Burnside); id., at 885 (Copper); 2d Supp. Record 255b
(Cunningham). The State asked no questions to either
Copper or Cunningham on this point, and it asked three
questions to Burnside about her son’s robbery conviction
and. See App. 144–145. The State treated white jurors
similarly. For example, the State asked three questions to
Suzanne Winstead about a nephew’s drug charges, Tr.
1190–1191; four questions to Sandra Hamilton about
crimes of her first cousins, id., at 977; and two questions to
Larry Blaylock about a cousin who committed murder, id.,
at 978–979.9
Because any “disparate questioning or investigation of
black and white prospective jurors” here “reflect[s] ordi-
nary race-neutral considerations,” ante, at 26, this factor
provides no evidence of racial discrimination in jury selec-
tion below.
E
If this case required us to decide whether the state
courts were correct that no Batson violation occurred here,
I would find the case easy enough. As I have demonstrated,
——————
9 The majority ominously warns that, through questioning, prosecu-

tors “can try to find some pretextual reason . . . to justify what is in
reality a racially motivated strike” and that “[p]rosecutors can decline
to seek what they do not want to find about white prospective jurors.”
Ante, at 25. I would not so blithely impute single-minded racism to
others. Doing so cheapens actual cases of discrimination.
26 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

the evidence overwhelmingly supports the conclusion that
the State did not engage in purposeful race discrimination.
Any competent prosecutor would have struck the jurors
struck below. Indeed, some of the jurors’ conflicts might
even have justified for-cause strikes. But this case is
easier yet. The question before us is not whether we
“ ‘would have decided the case differently,’ ” Easley v.
Cromartie, 532 U. S. 234, 242 (2001), but instead whether
the state courts were clearly wrong. And the answer to
that question is obviously no.
The Court has said many times before that “[t]he trial
court has a pivotal role in evaluating Batson claims.”
Snyder, 552 U. S., at 477. The ultimate question in Bat-
son cases—whether the prosecutor engaged in purposeful
discrimination—“involves an evaluation of the prosecutor’s
credibility,” and “ ‘the best evidence [of discriminatory
intent] often will be the demeanor of the attorney who
exercises the challenge.’ ” Ibid. The question also turns on
“a juror’s demeanor,” “making the trial court’s firsthand
observations of even greater importance.” Ibid. “[O]nly
the trial judge can be aware of the variations in demeanor
and tone of voice that bear so heavily on the listener’s
understanding of and belief in what is said.” Anderson v.
Bessemer City, 470 U. S. 564, 575 (1985).
Because the trial court is best situated to resolve the
sensitive questions at issue in a Batson challenge, “a trial
court’s ruling on the issue of discriminatory intent must be
sustained unless it is clearly erroneous.” Snyder, supra, at
477; see Foster, 578 U. S., at ___ (slip op., at 10). Our
review is particularly deferential where, as here, “an
intermediate court reviews, and affirms, a trial court’s
factual findings.” Easley, supra, at 242.
Under this clear-error standard of review, “[w]here
there are two permissible views of the evidence, the fact-
finder’s choice between them cannot be clearly erroneous.”
Anderson, supra, at 574; see also Cooper v. Harris, 581
 Cite as: 588 U. S. ____ (2019) 27

THOMAS, J., dissenting

U. S. ___, ___ (2017) (slip op., at 4). The notion that it is
“impermissible” to adopt the view of the evidence that I
have outlined above is incredible. Besides being supported
by carefully reasoned opinions from both the trial court
and the Mississippi Supreme Court—opinions that, unlike
the majority’s, consider all relevant facts and circum-
stances—that view is at a minimum consistent with the
factual record. At the Batson hearing, the State offered “a
coherent and facially plausible story that is not contra-
dicted” by the record, and the trial court’s “decision to
credit” such a story “can virtually never be clear error.”
Anderson, supra, at 575. The trial court reasonably un-
derstood the supposedly “dramatically disparate” ques-
tioning to be explained by the circumstances of this case—
circumstances that the majority does not dispute. Like-
wise, the trial court reasonably did not view any picayune
mistakes by the State to be compelling evidence of racial
discrimination. (Of course, neither did the defense, which
is presumably why it did not make that argument. But
the clear-error and forfeiture doctrines are speed bumps
en route to the Court’s desired destination.) Yet the Court
discovers “clear error” based on its own review of a near-
decade-old record. The majority apparently thinks that it
is in a better position than the trial court to judge the tone
of the questions and answers, the demeanor of the attor-
neys and jurors, the courtroom dynamic, and the culture of
Winona, Mississippi.
III
Given that there was no evidence of race discrimination
in the trial here, the majority’s remaining explanation for
its decision is conduct that took place before this trial. The
majority builds its decision around the narrative that this
case has a long history of race discrimination. This narra-
tive might make for an entertaining melodrama, but it has
no basis in the record. The history, such as it is, does not
28 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

come close to carrying Flowers’ burden of showing that the
state courts clearly erred.
A
The State exercised 50 peremptory strikes in Flowers’
previous trials. As the case comes to us, 49 of those
strikes were race neutral. If this history teaches us any-
thing, it is that we should not assume the State strikes
jurors based on their race.
Flowers’ first trial was for the murder of Bertha Tardy
only. In that trial, the State exercised peremptory strikes
on five black jurors and seven white jurors. App. 35. The
trial court found that Flowers had not made out even a
prima facie Batson case, id., at 12, n. 3, much less showed
purposeful race discrimination in any of the State’s
strikes. Thus, as this case comes to us, all of the State’s
strikes in this trial were race neutral.
What the majority calls the second trial is actually
Flowers’ first trial for another murder—that of Bobo
Stewart. During jury selection, the State exercised per-
emptory strikes on five black jurors and two white jurors;
the trial court disallowed one of the State’s strikes under
Batson. App. 35; id., at 17–19. Flowers was convicted and
apparently did not appeal on Batson grounds. Eventually,
the Mississippi Supreme Court reversed Flowers’ convic-
tions from the first two trials for reasons unrelated to jury
selection. The court held that certain evidence relevant to
all four murders was improperly admitted. Flowers v.
State, 773 So. 2d 309, 317, 319–324 (Miss. 2000); Flowers
v. State, 842 So. 2d 531, 538, 539–550 (Miss. 2003).
The State next tried Flowers for all four murders to-
gether. In this “third” trial—actually the first trial for the
murders of Robert Golden and Carmen Rigby—the State
struck 15 black jurors. App. 35. The trial court found no
Batson violations. Flowers v. State, 947 So. 2d 910, 916
(Miss. 2007) (plurality opinion). On appeal, Flowers did
 Cite as: 588 U. S. ____ (2019) 29

THOMAS, J., dissenting

not challenge four of the strikes, id., at 918, and the Mis-
sissippi Supreme Court unanimously upheld the trial
court’s ruling as to nine of the other strikes, see id., at
918–935. Four justices, constituting a plurality of the
court, would have held that two strikes violated Batson,
947 So. 2d, at 926, 928; one justice concurred only in the
judgment because she “d[id] not agree” with the “plurality”
“that this case is reversible on the Batson issue alone,” id.,
at 939 (Cobb, P. J., concurring in result); and four justices
would have held that no strikes violated Batson, 947
So. 2d, at 942–943 (Smith, C. J., dissenting). If the con-
curring justice thought any strikes were impermissible,
Batson would have required her to reverse on that basis.
Thus, the Court is wrong multiple times over to say that
the Mississippi Supreme Court “conclud[ed] that the State
had again violated Batson by discriminating on the basis
of race in exercising all 15 of its peremptory strikes
against 15 black prospective jurors.” Ante, at 5. That
court unanimously concluded that 13 strikes were race
neutral, and a majority concluded that the remaining two
strikes did not violate Batson. Therefore, neither the trial
court nor the Mississippi Supreme Court found any Batson
violation in this third trial—all 15 strikes were race
neutral.10
——————
10 The Court repeatedly and inaccurately attributes statements by the

plurality to the Mississippi Supreme Court—or deems those statements
part of a “lead opinion,” ante, at 5, 20, even though a majority of that
court disagreed in relevant part. The Court also takes the plurality’s
statements out of context. For instance, three times the Court quotes
the plurality’s statement that “ ‘[t]he instant case presents us with as
strong a prima facie case of racial discrimination as we have ever seen
in the context of a Batson challenge.’ ” Ante, at 2, 5, 20. But that
statement was focused solely on the fact that “[t]he prosecutor exer-
cised all fifteen of his peremptory strikes on African-Americans.”
Flowers, 947 So. 2d, at 935. One could just as easily say that Flowers’
own strikes here—11 whites, zero blacks—present an overwhelming
prima facie case of racial discrimination. Tr. of Oral Arg. 57 (admitting
30 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

In the next two trials, Flowers apparently did not even
allege a Batson violation. In the “fourth” trial, the State
struck 11 black jurors but did not exercise its three re-
maining strikes; five black jurors were seated. App. 28–
29, 35. In the “fifth” trial, the State struck five jurors, but
Flowers is unable to identify the race of these jurors, and
three black jurors were seated. Brief for Petitioner 13.
Thus, up to the present trial, the State had sought to
exercise 50 peremptory strikes, 36 on potential black
jurors. Finally, in this trial, the State struck five black
jurors and one white juror; one black juror sat on the jury,
and one black juror was an alternate.
According to the majority, “the State’s use of peremptory
strikes in Flowers’ first four trials reveal[s] a blatant
pattern of striking black prospective jurors.” Ante, at 20.
The majority claims that “[o]ver the course of the first four
trials, there were 36 black prospective jurors against
whom the State could have exercised a peremptory strike,”
and “[t]he State tried to strike all 36.” Ibid. The major-
ity’s argument is wrong on several levels.
First, the majority is wrong on the numbers. The major-
ity repeatedly says that over “the six trials combined,” “the
State struck 41 of the 42 black prospective jurors it could
have struck.” Ante, at 31; see ante, at 2. Yet in the fourth
trial, according to Flowers himself, the State did not exer-
cise available peremptory strikes on at least three black
jurors. See App. 28–29. Moreover, the majority does not
know the races of the struck jurors in the fifth trial. Given
that at least three black jurors were seated and that the
State exercised only five strikes, it would appear that the
State did not exercise available strikes against at least
——————
that Flowers’ trial counsel “only exercised peremptories against white
jurors”). As the Court understands, a prima facie case is only the first
step of Batson, ante, at 12–13, and a majority of the Mississippi Su-
preme Court in the third trial found that Flowers failed to carry his
burden of proving purposeful racial discrimination as to any strike.
 Cite as: 588 U. S. ____ (2019) 31

THOMAS, J., dissenting

three black jurors. Finally, in the most recent trial, the
State tendered two black jurors for service on the jury, one
of whom served as an alternate. (The majority’s strike
numbers include strikes of alternates, so its juror numbers
should too.) However the majority arrived at its numbers,
the record tells a different story.11
Second, the Court says that “[t]he State’s actions in the
first four trials necessarily inform our assessment of the
State’s intent,” for “[w]e cannot ignore that history.” Ante,
at 22. Putting aside that no court below ignored the history,
the majority completely ignores Flowers’ failure to chal-
lenge the State’s actions in the fifth trial—the one that
immediately preceded this one. Flowers bears the burden
of proving racial discrimination, and the reason infor-
mation about the fifth trial is not “available,” ante, at 21,
is that Flowers failed to present it. Perhaps he did not
want to present it because the State struck only white
jurors—who knows? Regardless, this failure must count
against Flowers’ claim. Surely a party making a Batson
claim cannot gather data from select trials and present
only favorable snippets.
Third, and most importantly, that the State previously
sought to exercise 36 strikes against black jurors does not
“speak loudly” in favor of discrimination here, ante, at 20,
because 35 of those 36 strikes were race neutral. By the
majority’s own telling, the trial court may “consider histor-
ical evidence of the State’s discriminatory peremptory

——————
11 Rather than explain its numbers, the Court points out that when

pressed at oral argument, the State agreed that 41 of 42 potential black
jurors had been stricken. Ante, at 2, 20. No one else—not even Flow-
ers—has agreed with that statistic. See Brief for Petitioner 32; App.
35. Flowers certainly did not present it to the state courts. The ques-
tion before us is whether those courts clearly erred, and in reviewing
their decisions, we must affirm “ ‘if the result is correct’ ” based on the
actual record. NLRB v. Kentucky River Community Care, Inc., 532
U. S. 706, 722, n. 3 (2001).
32 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

strikes from past trials.” Ante, at 19 (emphasis added).
As I have shown, 35 of 36 strikes were not “discriminatory
peremptory strikes.” The bare number of black-juror
strikes is relevant only if one eliminates other explana-
tions for the strikes, cf. supra, at 18–19, but prior adjudi-
cations (and Flowers’ failure to even object to some
strikes) establish that legitimate reasons explained all but
one of them. Is the majority today holding that the prior
courts all committed clear error too? And what about the
strikes that even Flowers did not object to—is the majority
sua sponte holding that the State was engaged in purpose-
ful racial discrimination as to those strikes? The major-
ity’s reliance on race-neutral strikes to show discrimination
is judicial alchemy.
B
The only incident in the history of this case even hinting
at discrimination was that a trial judge 20 years ago
prevented the State from striking one black juror in a case
involving only one of Flowers’ crimes. If this single im-
permissible strike could provide evidence of purposeful
race discrimination in a different trial 11 years later
involving different murders (and victims of different races),
it is surely the weakest of evidence. Even Flowers con-
cedes that a single “Batson violation 20 years ago” would
be only “weakly probative.” Tr. of Oral Arg. 19–20. That
is the precise situation here. And this “weakly probative”
single strike certainly does not overcome the complete
absence of evidence of purposeful race discrimination in
this trial. We know next to nothing about this strike, for
Flowers has not even provided us with a transcript of the
jury selection from that trial. And the trial court’s ruling
on the strike was never reviewed on appeal.
Pretending for a moment that the concurring justice in
the third trial had voted differently than she did, the
history still could not overcome the absence of evidence of
 Cite as: 588 U. S. ____ (2019) 33

THOMAS, J., dissenting

purposeful race discrimination in this trial. Flowers forth-
rightly acknowledged that he needed to show “discrimina-
tion in this trial in order to have a Batson violation.” Id.,
at 23 (emphasis added). At a minimum, the state courts’
finding—that the history does not carry Flowers’ burden of
proving purposeful race discrimination here—is not clearly
erroneous. The courts below were presented with Flowers’
view of the history, and even accepting that view and
“[t]aking into account the ‘historical evidence’ of past
discrimination,” the Mississippi Supreme Court held that
the trial court did not err “in finding that the State did not
violate Batson.” 240 So. 2d, at 1135; see id., at 1122–1124.
The majority simply disregards this assessment by the
state courts.
IV
Much of the Court’s opinion is a paean to Batson v.
Kentucky, which requires that a duly convicted criminal go
free because a juror was arguably deprived of his right to
serve on the jury. That rule was suspect when it was
announced, and I am even less confident of it today. Bat-
son has led the Court to disregard Article III’s limitations
on standing by giving a windfall to a convicted criminal
who, even under Batson’s logic, suffered no injury. It has
forced equal protection principles onto a procedure de-
signed to give parties absolute discretion in making indi-
vidual strikes. And it has blinded the Court to the reality
that racial prejudice exists and can affect the fairness of
trials.
A
In Batson, this Court held that the Equal Protection
Clause prohibits the State from “challeng[ing] potential
jurors solely on account of their race or on the assumption
that black jurors as a group will be unable impartially to
consider the State’s case.” 476 U. S., at 89. “[I]ndividual
34 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

jurors subjected to racial exclusion have the legal right to
bring suit on their own behalf.” Powers v. Ohio, 499 U. S.
400, 414 (1991). To establish standing to assert this equal
protection claim in a separate lawsuit, the juror would
need to show that the State’s action caused him to suffer
an injury in fact, and a likelihood that a favorable decision
will redress the injury. Lujan v. Defenders of Wildlife, 504
U. S. 555, 560–561 (1992). Flowers, however, was not the
excluded juror. And although he is a party to an ongoing
proceeding, “ ‘ “standing is not dispensed in gross” ’ ”; to the
contrary, “ ‘a plaintiff must demonstrate standing for each
claim he seeks to press and for each form of relief that is
sought.’ ” Town of Chester v. Laroe Estates, Inc., 581 U. S.
___, ___ (2017) (slip op., at 5).
Flowers should not have standing to assert the excluded
juror’s claim. He does not dispute that the jury that con-
victed him was impartial, see U. S. Const., Amdt. VI, and
as the Court has said many times, “ ‘[d]efendants are not
entitled to a jury of any particular composition.’ ” Holland
v. Illinois, 493 U. S. 474, 483 (1990). He therefore suffered
no legally cognizable injury. The only other plausible
reason a defendant could suffer an injury from a Batson
violation is if the Court thinks that he has a better chance
of winning if more members of his race are on the jury.
But that thinking relies on the very assumption that
Batson rejects: that jurors might “ ‘be partial to the de-
fendant because of their shared race.’ ” Ante, at 14 (quot-
ing Batson, supra, at 97). Moreover, it cannot be squared
with the Court’s later decisions, which hold that “race is
irrelevant to a defendant’s standing to object to the dis-
criminatory use of peremptory challenges.” Powers, 499
U. S., at 416 (holding that a white defendant has standing
to challenge strikes of black jurors).
Today, the Court holds that Carolyn Wright was denied
equal protection by being excluded from jury service. But
she is not the person challenging Flowers’ convictions (she
 Cite as: 588 U. S. ____ (2019) 35

THOMAS, J., dissenting

would lack standing to do so), and I do not understand
how Flowers can have standing to assert her claim. Why
should a “denial of equal protection to other people” that
does “not affect the fairness of that trial” mean that
“the defendant must go free”? Id., at 431 (Scalia, J.,
dissenting).
In Powers, the Court relied on the doctrine of third-
party standing. As an initial matter, I doubt “whether a
party who has no personal constitutional right at stake in
a case should ever be allowed to litigate the constitutional
rights of others.” Kowalski v. Tesmer, 543 U. S. 125, 135
(2004) (THOMAS, J., concurring); see also Whole Woman’s
Health v. Hellerstedt, 579 U. S. ___, ___–___ (2016)
(THOMAS, J., dissenting) (slip op., at 2–5).
Even accepting the notion of third-party standing, it is
hard to see how it could be satisfied in Batson cases. The
Court’s precedents require that a litigant asserting anoth-
er’s rights have suffered an “ ‘injury in fact’ ” and have “a
close relation” to the third party. Powers, supra, at 411.
As shown, Flowers suffered no injury in fact under the
Court’s precedents. Moreover, in the ordinary case, the
defendant has no relation whatsoever to the struck jurors.
(Here, as it happens, all the struck jurors knew Flowers or
his family, but that hardly helps his Batson claim.)
In Powers, the Court concluded that defendants and
struck jurors share a “common interest.” 499 U. S., at 413.
But like most defendants, Flowers’ interest is in avoiding
prison (or execution). A struck juror, by contrast, is un-
likely to feel better about being excluded from jury service
simply because a convicted criminal may go free. And
some potential jurors, like Flancie Jones here, “ ‘really and
truly . . . don’t want to’ ” serve on a jury in the first place.
App. 181 (emphasis added); see also Hayes v. Missouri,
120 U. S. 68, 71 (1887) (referring to “an unfortunate dispo-
sition on the part of business men to escape from jury
duty”). If Flowers had succeeded on his Batson claim at
36 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

trial and forced Jones onto the jury, it seems that he—her
supposed third-party representative with a “common
interest”—would have inflicted an injury on her.
Our remedy for Batson violations proves the point. The
convicted criminal, who suffered no injury, gets his convic-
tion vacated.12 And even if the struck juror suffered a
cognizable injury, but see Powers, supra, at 423–426 (Scalia,
J., dissenting), that injury certainly is not redressed by
undoing the valid conviction of another. Under Article III,
Flowers should not have standing.
B
The more fundamental problem is Batson itself. The
“entire line of cases following Batson” is “a misguided
effort to remedy a general societal wrong by using the
Constitution to regulate the traditionally discretionary
exercise of peremptory challenges.” Campbell v. Louisi-
ana, 523 U. S. 392, 404, n. 1 (1998) (THOMAS, J., concur-
ring in part and dissenting in part). “[R]ather than help-
ing to ensure the fairness of criminal trials,” Batson
“serves only to undercut that fairness by emphasizing the
rights of excluded jurors at the expense of the traditional
protections accorded criminal defendants of all races.”
Campbell, supra, at 404, n. 1. I would return to our pre-
Batson understanding—that race matters in the court-
room—and thereby return to litigants one of the most
important tools to combat prejudice in their cases.
1
In Strauder v. West Virginia, 100 U. S. 303 (1880), the

——————
12 The Court has never explained “why a violation of a third party’s

right to serve on a jury should be grounds for reversal when other
violations of third-party rights, such as obtaining evidence against the
defendant in violation of another person’s Fourth or Fifth Amendment
rights, are not.” Campbell v. Louisiana, 523 U. S. 392, 405 (1998)
(THOMAS, J., concurring in part and dissenting in part).
 Cite as: 588 U. S. ____ (2019) 37

THOMAS, J., dissenting

Court invalidated a state law that prohibited blacks from
serving on juries. In doing so, we recognized that the
racial composition of a jury could affect the outcome of a
criminal case. See id., at 308–309. The Court explained
that “[i]t is well known that prejudices often exist against
particular classes in the community, which sway the
judgment of jurors, and which, therefore, operate in some
cases to deny to persons of those classes the full enjoyment
of that protection which others enjoy.” Id., at 309. Thus,
we understood that allowing the defendant an opportunity
to “secur[e] representation of the defendant’s race on the
jury may help to overcome racial bias and provide the
defendant with a better chance of having a fair trial.”
Georgia v. McCollum, 505 U. S. 42, 61 (1992) (THOMAS, J.,
concurring in judgment).
In Swain v. Alabama, 380 U. S. 202 (1965), the Court
held that individual peremptory strikes could not give rise
to an equal protection challenge. Swain followed Strauder
in assuming that race—like other factors that are generally
unsuitable for the government to use in making classifica-
tions—can be considered in peremptory strikes: “In the
quest for an impartial and qualified jury, Negro and white,
Protestant and Catholic, are alike subject to being chal-
lenged without cause.” Swain, 380 U. S., at 221. That is
because the peremptory “challenge is ‘one of the most
important of the rights secured to the accused.’ ” Id., at
219. Based on its long history, the peremptory system
“affords a suitable and necessary method of securing juries
which in fact and in the opinion of the parties are fair and
impartial.” Id., at 212; see id., at 212–219. The strike
both “eliminate[s] extremes of partiality on both sides”
and “assure[s] the parties that the jurors before whom
they try the case will decide on the basis of the evidence
placed before them, and not otherwise.” Id., at 219. Be-
cause this system, “in and of itself, provides justification
for striking any group of otherwise qualified jurors in any
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THOMAS, J., dissenting

given case, whether they be Negroes, Catholics, account-
ants or those with blue eyes,” id., at 212, we concluded
that an equal protection challenge was unavailable
against individual peremptory strikes.
Then, in a departure from the previous century of juris-
prudence, the Court moved its focus from the protections
accorded the defendant to the perceptions of a hypothetical
struck juror. In Batson, the Court concluded that the
government could not exercise individual strikes based
solely on “the assumption—or [the] intuitive judgment—
that [jurors] would be partial to the defendant because of
their shared race.” 476 U. S., at 97. The Court’s opinion
in Batson equated a law categorically excluding a class of
people from jury service with the use of discretionary
peremptory strikes to remove members of that class: “Just
as the Equal Protection Clause forbids the States to ex-
clude black persons from the venire on the assumption
that blacks as a group are unqualified to serve as jurors,
so it forbids the States to strike black veniremen on the
assumption that they will be biased in a particular case
simply because the defendant is black.” Ibid. (citation
omitted). Batson repeatedly relies on this analogy. See
id., at 86, 89; id., at 87 (“A person’s race simply is unrelated
to his fitness as a juror” (internal quotation marks omit-
ted)); see also ante, at 14 (quoting Batson, supra, at 104–
105 (Marshall, J., concurring)); Powers, 499 U. S., at 410
(“Race cannot be a proxy for determining juror bias or
competence”).
But this framing of the issue ignores the nature and
basis of the peremptory strike and the realities of racial
prejudice. A peremptory strike reflects no judgment on a
juror’s competence, ability, or fitness. Instead, the strike
is exercised based on intuitions that a potential juror may
be less sympathetic to a party’s case. As Chief Justice
Burger emphasized, “venire-pool exclusion bespeaks a
priori across-the-board total unfitness, while peremptory-
 Cite as: 588 U. S. ____ (2019) 39

THOMAS, J., dissenting

strike exclusion merely suggests potential partiality in a
particular isolated case. ” Batson, supra, at 122–123 (dis-
senting opinion) (internal quotation marks omitted); ac-
cord, Powers, supra, at 424 (Scalia, J., dissenting). “[T]he
question a prosecutor or defense counsel must decide is
not whether a juror of a particular race or nationality is in
fact partial, but whether one from a different group is less
likely to be.” Swain, 380 U. S., at 220–221 (emphasis
added). Therefore, “veniremen are not always judged
solely as individuals for the purpose of exercising peremp-
tory challenges”; instead, “they are challenged in light of
the limited knowledge counsel has of them, which may
include their group affiliations, in the context of the case
to be tried.” Id., at 221.
Batson rejects the premise that peremptory strikes can
be exercised on the basis of generalizations and demands
instead “an assessment of individual qualifications.” 476
U. S., at 87. The Court’s Batson jurisprudence seems to
conceive of jury selection more as a project for affirming
“the dignity of persons” than as a process for providing a
jury that is, including in the parties’ view, fairer. Powers,
supra, at 402; see Edmonson v. Leesville Concrete Co., 500
U. S. 614, 631 (1991); see also J. E. B. v. Alabama ex rel.
T. B., 511 U. S. 127, 140–142 (1994).
2
Batson’s focus on individual jurors’ rights is wholly
contrary to the rationale underlying peremptory challenges.
And the application of equal protection analysis to indi-
vidual strikes has produced distortions in our jurispru-
dence that are symptomatic of its poor fit, both as a matter
of common sense and the protections traditionally accorded
litigants.
The Court did not apply equal protection principles to
individual peremptory strikes until more than 100 years
after the Fourteenth Amendment was ratified. Once it
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THOMAS, J., dissenting

did, it quickly extended Batson to civil actions, strikes by
criminal defendants, and strikes based on sex. Edmonson,
supra; McCollum, 505 U. S. 42; J. E. B., supra. But even
now, we do not apply generally applicable equal protection
principles to peremptory strikes. For example, our prece-
dents do not apply “strict scrutiny” to race-based peremp-
tory strikes. And we apply “the same protection against
sex discrimination as race discrimination” in reviewing
peremptory strikes, J. E. B., supra, at 145, even though
sex is subject to “heightened” rather than “strict” scrutiny
under our precedents. Finally, we have not subjected all
peremptory strikes to “rational basis” review, which nor-
mally applies absent a protected characteristic. Cleburne
v. Cleburne Living Center, Inc., 473 U. S. 432, 440–442
(1985); see generally Batson, supra, at 123–125 (Burger,
J., dissenting); J. E. B., supra, at 161 (Scalia, J., dissent-
ing). Thus, the Court’s own jurisprudence seems to recog-
nize that its equal protection principles do not naturally
apply to individual, discretionary strikes.
Now that we have followed Batson to its logical conclu-
sion and applied it to race- and sex-based strikes without
regard to the race or sex of the defendant, it is impossible
to exercise a peremptory strike that cannot be challenged
by the opposing party, thereby requiring a “neutral” ex-
planation for the strike. But requiring an explanation is
inconsistent with the very nature of peremptory strikes.
Peremptory strikes are designed to protect against fears of
partiality by giving effect to the parties’ intuitions about
jurors’ often-unstated biases. “[E]xercised on grounds
normally thought irrelevant to legal proceedings or official
action,” like “race, religion, nationality, occupation or
affiliations,” Swain, supra, at 220, they are a form of
action that is by nature “arbitrary and capricious,” 4 W.
Blackstone, Commentaries on the Laws of England 346
(1769) The strike must “be exercised with full freedom, or
it fails of its full purpose.” Lewis v. United States, 146
 Cite as: 588 U. S. ____ (2019) 41

THOMAS, J., dissenting

U. S. 370, 378 (1892). Because the strike may be exercised
on as little as the “sudden impressions and unaccountable
prejudices we are apt to conceive upon the bare looks and
gestures of another,” id., at 376, reasoned explanation is
often impossible. And where scrutiny of individual strikes
is permitted, the strike is “no longer . . . peremptory, each
and every challenge being open to examination.” Swain,
supra, at 222.
In sum, as other Members of this Court have recognized,
Batson charted the course for eliminating peremptory
strikes. See, e.g., Rice v. Collins, 546 U. S. 333, 344 (2006)
(BREYER, J., concurring); Batson, supra, at 107–108 (Mar-
shall, J., concurring). Although those Justices welcomed
the prospect, I do not. The peremptory system “has al-
ways been held essential to the fairness of trial by jury.”
Lewis, supra, at 376. And the basic premise of Strauder—
that a juror’s racial prejudices can make a trial less fair—
has not become “obsolete.” McCollum, 505 U. S., at 61
(opinion of THOMAS, J.). The racial composition of a jury
matters because racial biases, sympathies, and prejudices
still exist. This is not a matter of “assumptions,” as Bat-
son said. It is a matter of reality.13 The Court knows
these prejudices exist. Why else would it say that “a
capital defendant accused of an interracial crime is enti-
tled to have prospective jurors informed of the race of the
victim and questioned on the issue of racial bias”? Turner
v. Murray, 476 U. S. 28, 36–37 (1986).14 For that matter,
——————
13 Academic studies appear to support this commonsense proposition.

See, e.g., Carter & Mazzula, Race and Racial Identity Status Attitudes,
11 J. Ethnicity Crim. Justice 196, 211 (2013) (“[R]acial bias exists in
juror decision making”); Ellsworth & Sommers, Race in the Courtroom,
26 Personality & Soc. Psychol. Bull. 1367, 1367–1379 (2000). Cf.
J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 148–149 (1994)
(O’Connor, J., concurring) (“We know that like race, gender matters”).
14 It is telling that Flowers here sought a new trial because the trial

court supposedly failed to allow sufficient questioning on racial preju-
dice. See Record 2936. Evidently Flowers was operating “on the
42 FLOWERS v. MISSISSIPPI

THOMAS, J., dissenting

why else say here that “Flowers is black” and the “prose-
cutor is white”? Ante, at 3. Yet the Court continues to
apply a line of cases that prevents, among other things,
black defendants from striking potentially hostile white
jurors. I remain “certain that black criminal defendants
will rue the day that this Court ventured down this road
that inexorably will lead to the elimination of peremptory
strikes.” McCollum, supra, at 60 (opinion of THOMAS, J.).
Instead of focusing on the possibility that a juror will
misperceive a peremptory strike as threatening his dignity,
I would return the Court’s focus to the fairness of trials for
the defendant whose liberty is at stake and to the People
who seek justice under the law.
* * *
If the Court’s opinion today has a redeeming quality, it
is this: The State is perfectly free to convict Curtis Flowers
again. Otherwise, the opinion distorts our legal stand-
ards, ignores the record, and reflects utter disrespect for
the careful analysis of the Mississippi courts. Any compe-
tent prosecutor would have exercised the same strikes as
the State did in this trial. And although the Court’s opin-
ion might boost its self-esteem, it also needlessly prolongs
the suffering of four victims’ families. I respectfully
dissent.

——————
assumption that” jurors might “be biased in a particular case simply
because the defendant is black.” Batson v. Kentucky, 476 U. S. 79, 97
(1986). Perhaps unsurprisingly, then, he exercised peremptory strikes
against 11 white jurors and 0 black jurors.