Clarence Thomas Finds N-Word Cannot Indicate Racial Prejudice in Supreme Court Dissent

The Eleventh Circuit Court of Appeals decided no reasonable person could conclude that juror Barney Gattie — who wondered if black people “have souls” and declared that only some black people are “N[word]s” — would prejudice the case. In other words, the appeals court deemed that statements like these cannot legally rise to the level of racial prejudice.

In the trial, defendant Keith Tharpe was convicted of murder then sentenced to death. The facts of the murder are shocking. Nevertheless, an appeals court precedent deeming that a white juror who wonders if black people “have souls” and uses the word “N[word]s” cannot be prejudiced would make it much harder in routine cases going forward for anyone to claim that there was racial prejudice of the jury. The case was appealed to the Supreme Court.

A 6-3 Supreme Court hinted that the appeal could be denied on other grounds, but not on these particular facts. The Court wrote up an unsigned summary decision overruling the racial prejudice finding and sending the case back to the lower court to find other reasons to block the appeal of the conviction.

But this was not good enough for three Justices, led by Clarence Thomas, with Samuel Alito and Neil Gorsuch, who wrote a blistering dissent against the Court decision.


After a death penalty case, juror Barney Gattie signed a statement declaring that:

  • some “Black folks” are “N[word]s,”
  • some jurors “felt” execution would make an example of “blacks who kill blacks,” and
  • the juror was not sure if “black people even have souls.”

Later, Barney Gattie denied that his opinions about black people affected his decision to implement death. But Barney Gattie never retracted the original statement.


The 6-3 Supreme Court decision describes the juror’s statement:

Tharpe produced a sworn affidavit, signed by Gattie, indicating Gattie’s view that “there are two types of black people: 1. Black folks and 2. N[word]s”; that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; that “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t my reason”; and that, “[a]fter studying the Bible, I have wondered if black people even have souls.” Gattie’s remarkable affidavit–which he never retracted–presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict. (Citation omitted)

The Supreme Court says the appeals court decided the case “solely” on the racial prejudice issue:

The Eleventh Circuit’s decision, as we read it, was based solely on its conclusion, rooted in the state court’s factfinding, that Tharpe had failed to show prejudice in connection with his procedurally defaulted claim, i.e., that Tharpe had “failed to demonstrate that Barney Gattie’s behavior ‘had substantial and injurious effect or influence in determining the jury’s verdict.'”

The appeals decision spent more than two pages in an eight page opinion discussing the specific facts about racial prejudice, ultimately concluding, “Tharpe [has not] shown that ‘jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'”


The Supreme Court sends the case back to the lower court because reasonable jurists may not agree that a juror who is not sure whether black people “have souls” and who divides black people into “good” black folks or “N[word]s” would not prejudice the case. Note the double negative. In other words, reasonable people can find such statements prejudicial:

[O]n the unusual facts of this case, the Court of Appeals’ review should not have rested on the ground that it was indisputable among reasonable jurists that Gattie’s service on the jury did not prejudice Tharpe. (Bold emphasis added)

The Supreme Court seems to suggest that the appeal could be denied on other grounds:

The question of prejudice–the ground on which the Eleventh Circuit chose to dispose of Tharpe’s application–is not the only question relevant to the broader inquiry whether Tharpe should receive a COA. The District Court denied Tharpe’s Rule 60(b) motion on several grounds not addressed by the Eleventh Circuit. We express no view of those issues here.

The Court says basically: Just get rid of the part about the juror who thinks some black people are “folks” and some are “N[word]s.” With that, the Supreme Court overturns a powerful precedent that would have made it much easier to excuse racial prejudice of jurors in future cases.


Clarence Thomas writes a blistering dissent, with Samuel Alito and Neil Gorsuch signing on. Clarence Thomas seizes upon the idea that lower court review would likely end up with the same result, namely that the conviction and death penalty sentence stand. He calls the Court’s decision a “pointless exercise,” complaining that: “By remanding this case to the court of appeals for a useless do-over, the court is not doing Tharpe any favors.”

The Court’s terse opinion tells the reader that this case involves a petitioner, a juror, an affidavit, and a prejudice determination. But it involves much more than that… a second affidavit, numerous depositions, factfinding by a state court, and several decisions from federal judges that provide multiple grounds for denying [the appeal].

1. In the “affidavit,” Juror Barney Gattie did not “swear” to his original signed statement about “souls” and “N[word]s” even though he said it and signed it — but he said it all. Gattie later testified that he drank about “12” beers and some “whiskey” that day — blaming his statement on alcohol. Gattie “never retracted” his statement.

2. In a “second affidavit,” Gattie changed his story, partially disagreeing with himself, but without taking back his earlier comments:

Gattie stated that he “did not vote to impose the death penalty because [Tharpe] was a black man,” but instead because the evidence presented at trial justified it and because Tharpe showed no remorse.

3. In “numerous depositions,” other jurors denied racial prejudice:

The state court also heard deposition testimony from ten of Tharpe’s other jurors and received an affidavit from the eleventh. None of the jurors, two of whom were black, corroborated the statements in Gattie’s first affidavit about how some of the jurors had considered race. The ten jurors who testified all said that race played no role in the jury’s deliberations.

These are the very people who convicted the man and sentenced him to death. It would seem reflexive and almost automatic for them to justify their decision after the fact. Denials of racial motives are commonplace.

As for the two black jurors, the same applies, as do many other possibilities. Clarence Thomas should know this. When he was accused of sexual harassment at his own confirmation hearing by a black woman, Anita Hill, he proclaimed a “high tech lynching of uppity blacks.” If she could be a party to such a “lynching,” then certainly two jurors asked to sign a statement could be.

Recall that juror Barney Gattie admitted straight up, no matter how drunk he supposedly was, that he was not sure if black people “have souls.” Normally, such an admission does not need corroboration. The jury, including the two black jurors, may have been affected unwittingly as racial animus is not always so apparent (for example in the infamous “Southern strategy“).

4. Central to the “factfinding” in the “several decisions” was the notion that a juror who wonders about the existence of “souls” of black people and exactly which ones are the “N[word]s” — and the idea that no reasonable person could find such comments to be racial prejudice. The Supreme Court wants this particular “multiple ground” removed from the reasoning so that it cannot be used for courts to deny appeals in the future.

5. Clarence Thomas indicates that the Supreme Court “misreads the decision below as resting ‘solely’ on prejudice.” However, the lower court decision covered the substance of the juror’s statements extensively. If the case were decided strictly upon other grounds, all that detail would not have been necessary — it is in there to establish precedent.

By continuing to deny that the juror’s statements about “N[word]s” and “souls” could possibly suggest racial prejudice to a reasonable person, Clarence Thomas makes the same mistake lower courts made. He tries to create a permanent standard of racial prejudice that would make it hard or nearly impossible for a court to make such findings in the future. The Supreme Court was not willing to let such a standard get by.