Justice Kavanaugh begins and ends the majority opinion in Flowers v. Mississippi with the same assertion: that the Court “break[s] no new legal ground.” Thirty-five years earlier, the Supreme Court had held in Batson v. Kentucky that a prosecutor’s racially motivated exercise of the peremptory challenge violated the Equal Protection Clause of the Fourteenth Amendment, and plainly that foundational holding had not changed. With respect to the question of what kind of facts count toward the establishment of discriminatory motivation in the exercise of the peremptory challenge, Justice Kavanaugh’s modesty is a little exaggerated, because there are some new tidbits in Flowers, but it is not false. Moreover, his claim is certainly accurate with respect to the question of what combination of facts, taken together, suffice to establish discriminatory motivation because there has not been—and never will be—another case like Flowers. But, with respect to the next question, Flowers very quietly signals a big change, one adopting an approach that prior to Flowers only one federal circuit—the Ninth—had employed. What should happen when the probative facts, taken together, establish a prosecutor’s racial motivation? Should a court, counterfactually, determine whether that prosecutor would have done the same thing absent racial motivation, or should the court simply reverse the conviction?

Read more here: https://mckinneylaw.iu.edu/ilr/pdf/vol57p7.pdf