For 250 years U.S. law has protected jury verdicts from being overturned due to juror misconduct or bias. A liberal Supreme Court majority has now carved out an exception for racial bias, and in an ill-defined way with no limiting principle that is likely to damage the jury system.

After a Colorado jury convicted a Mexican man of sexual harassment, two jurors signed affidavits that a retired police officer on the jury had expressed racial animus during deliberations. The juror was reported to have stated that “nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls,” among other slurs. The defendant’s counsel sought to overturn the conviction based on racial animus but was denied by the trial judge.

The Sixth Amendment guarantees a trial by an impartial jury, and the legal system affords numerous protections against juror bias and misconduct. Jurors can be screened for bias prior to selection. The judge and counsel can discipline juror misconduct during the trial, and jurors may report on their peers before a verdict is rendered. Any single juror’s bias can also be policed by 11 others. 

The no-impeachment rule rooted in English common law also shields verdicts from being challenged. As Justice Anthony Kennedy explained in the 5-3 majority opinion this week in Pena-Rodriguez v. Colorado, the rule “promotes full and vigorous discussion by jurors by providing considerable assurance that after being discharged they will not be summoned to recount their deliberations” or otherwise harassed. It also “gives stability and finality to verdicts.”

Yet Justice Kennedy joined the Court’s four liberals in Pena-Rodriguez to overturn that standard for accusations of racial bias. The Justice writes for the majority that racial bias is such “a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.”

Pena-Rodriguez declares a new racial standard for overturning jury verdicts that was rejected by Colorado and has no constitutional basis. It also doesn’t establish a bright-line test of what constitutes unacceptable racial prejudice. Judges are apparently supposed to know it when they see it. “Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar,” Justice Kennedy concedes, but that ambiguous caveat won’t prevent endless complaints and appeals.

As Justice Samuel Alito muses in dissent, would a micro-aggression such as “this macho type” be permissible? How about positive racial bias? Take Justice Sonia Sotomayor’s famous comment that a wise Latina woman would “more often than not reach a better conclusion than a white male who hasn’t lived that life.” And what about religious prejudice or sexism that also receive equal protection under the Constitution?

“Although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding,” writes Justice Alito. “Nothing in the text or history of the [Sixth] Amendment or in the inherent nature of the jury trial right suggests that the extent of the protection provided by the Amendment depends on the nature of a jury’s partiality or bias.”

Justice Kennedy counters that at least 16 jurisdictions have adopted a rule for racial-bias exceptions. But Congress explicitly rejected such an exception in 1975, and so have two-thirds of states. The Supreme Court had heretofore rejected exceptions to the no-impeachment rule.

The ruling is a step toward corrupting juries with political standards based on the progressive obsessions with race, gender and class. It also continues Justice Kennedy’s long march away from constitutionally neutral standards on race. “As this Court said some years ago,” Justice Alito concludes, “it is questionable whether our system of trial by jury can endure this attempt to perfect it.”