A divided Supreme Court revived the case of a death row inmate on Monday, who argued that a juror voted to put him to death because of his race.
The justices sent the case back down to the lower court to reconsider Keith Tharpe's claims. In an unsigned 6-3 majority opinion, the majority held that "at the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court's factual determination was wrong."
The majority cautioned, however, that Tharpe "faces a high bar in showing that jurists of reason could disagree" with the state court's opinion.
Justice Clarence Thomas dissented, joined by Samuel Alito and Neil Gorsuch, from the opinion.
"The court must be disturbed by the racial rhetoric," in the case "and must want to do something about it," Thomas wrote. But he called the decision to send the case back down to the lower court "no profile in moral courage."
Thomas suggested that a remand would produce the same result. "Because this Court should not be in the business of ceremonial handwringing, I respectfully dissent."
Last September, a divided court issued a stay of execution for Tharpe. Thomas, Alito and Gorsuch dissented from that order.
In post-conviction appeals, Tharpe did not deny killing Jacquelin Freeman. He sought a stay of execution based in part on racist comments from a juror who has since died.
In an interview seven years after Tharpe's sentencing, juror Barney Gattie used the n-word in reference to Tharpe and other black people and wondered "if black people even have souls." Tharpe's lawyers argued that a biased juror violated Tharpe's constitutional rights to a fair trial.
Lawyers for the state argued that Tharpe's claim had been reviewed by a state habeas court. In court papers they argued that Gattie had provides an affidavit that "race was not a motivating factor."
"Additionally, the remaining eleven jurors, who all testified, did not state that race was considered," Christopher M. Carr , the Attorney General of Georgia, argued in court papers.