I wrote last fall about a baffling ruling by the Washington supreme court that concluded that the closing argument by defense counsel in a tort suit over a car accident “called on racist tropes” and that directed the lower court on remand to require the defendant to show that “implicit, institutional, and unconscious biases” played no role in the jury verdict (which was in favor of the plaintiff but in an amount that the supreme court oddly thought to be “astonishingly small”).
On Friday, the Supreme Court denied the defendant’s certiorari petition. Justice Alito, joined by Justice Thomas, concurred in the denial “because this case is in an interlocutory posture [i.e., it’s not over], and it is not clear whether it presents any ‘federal issue’ that has been ‘finally decided by the’ Washington Supreme Court.” But, he added, if the Washington courts understand the decision below to be as sweeping as it appears, review may eventually be required.” An excerpt (italics in original; my underlining; citation clutter cleaned up):
The Washington Supreme Court’s decision raises serious and troubling issues of due process and equal protection. In some cases, it will have the practical effect of inhibiting an attorney from engaging in standard and long-accepted trial practices: attempting to undermine the credibility of adverse witnesses, seeking to bolster the credibility of the attorney’s client, raising the possibility of a counterparty’s pecuniary motives, and suggesting that witnesses may have been coached or coordinated their stories. Such tactics are common and have long been viewed as proper features of our adversarial system.
Due process requires that there be an opportunity to present every available defense, but the decision below attaches a high price to the use of these run-of-the-mill defenses in cases where parties are of particular races. The Washington Supreme Court endorsed an evidentiary hearing based on the mere “possibility” of bias, and its analysis appears to hold that such litigation strategies per se raise at least the “possibility” of such bias. Moreover, the State Supreme Court’s rule requires the nonmoving party to prove at a hearing not that it did not intend to appeal to racial bias, but that racial bias (perhaps even subconscious bias) had no impact on the jurors. How the Washington Supreme Court thinks this can be done is unclear.
In sum, the opinion below, taken at face value, appears to mean that in any case between a white party and a black party, the attorney for the white party must either operate under special, crippling rules or expect to face an evidentiary hearing at which racism will be presumed and the attorney will bear the burden of somehow proving his or her innocence. It is possible that the Washington Supreme Court will subsequently interpret its brand-new decision more narrowly, but the procedures it appears to set out would raise serious due-process concerns.
The Washington Supreme Court’s opinion is also on a collision course with the Equal Protection Clause…. The procedures the state court has imposed appear likely to have the effect of cordoning off otherwise-lawful areas of inquiry and argument solely because of race, violating the central constitutional command that the law must “be the same for the black as for the white; that all persons . . . shall stand equal before the laws of the States.” …
Nothing in the papers before us suggests that defense counsel would have tried this case differently or that the jury award would have been larger if the races of the plaintiff and defendant had been different. As a result, the decision below, far from combating racism, institutionalizes a variation of that odious practice.
The decision below … illustrates the danger of departing from the foundational principle that in the United States all people are entitled to “equal justice under law,” as the façade of our building proclaims. Every one of the 330 million inhabitants of our country is a unique individual and must be treated as such by the law. It is not an exaggeration to say that our extraordinarily diverse population will not be able to live and work together harmoniously and productively if we depart from that principle and succumb to the growing tendency in many quarters to divide Americans up by race or ancestry.