Both the majority opinion, written by Justice Souter, and the dissent, written by Justice Thomas, are interesting. But what is even more interesting is an opinion written by Juster Breyer that concurred with the majority, but went much further.
Justice Breyer would eliminate the practice of preemptory jury strikes altogether. "The right to a jury free of discriminatory taint is constitutionally protected," Breyer wrote. "The right to use peremptory challenges is not."
Some background: As part of Miller-El's case, his lawyers raised the existence of a handbook that was used by Dallas County prosecutors when training new assistant district attorneys. The 18-page training manual, written way back in 1969, was shocking in its bigotry.
The manual had the following advice for new prosecutors when selecting a jury:
"You are not looking for a fair juror, but rather a strong, biased and sometimes hypocritical individual who believes that defendants are different from them in kind rather than degree."
"You are not looking for any member of a minority group which may subject him to oppression – they almost always empathize with the accused."
"You are not looking for the free-thinkers or flower children."
"Look for physical afflictions. These people usually sympathize with the accused."
"I don't like women jurors because I can't trust them."
"Young women too often sympathize with the defendant; old women wearing too much makeup are usually unstable and therefore are bad State's jurors."
"Extremely overweight people, especially women and young men, indicates a lack of self-discipline and often times instability. I like the lean and hungry look."
"People from the east or west coasts often make bad jurors."
"Intellectuals such as teachers etc. generally are too liberal and contemplative to make good State's jurors."
"Jewish veniremen generally make poor State's jurors. Jews have a history of oppression and generally empathize with the accused."
In light of this, the only thing we should find surprising about Monday's ruling is that it wasn't unanimous.