From Justice Sotomayor’s dissental in Buck v. Thaler:
Today the Court denies review of a death sentence marred by racial overtones and a record compromised bymisleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent andvote to grant the petition.
The then-attorney general of Texas recognized that “it is inappropriate to allow race to be considered as a factor inour criminal justice system.” Record, Doc. 27–5, at 30 (internal quotation marks omitted). Whether the District Court would accord any weight to the State’s purported distinctions between Buck’s case and the others is a question which that court should decide in the first instance, based on an unobscured record. Especially in light of the capital nature of this case and the express recognition by a Texas attorney general that the relevant testimonywas inappropriately race-charged, Buck has presentedissues that “deserve encouragement to proceed further.” Miller-El, 537 U. S., at 327.
What’s interesting is that Alito has a concurral, joined by Scalia, and Breyer–and makes no mention of race.
Ruth and Clarence–who may have some thoughts on racially charged death penalty cases–are nowhere to be found. Neither is the Chief or Tony.