                  Cite as: 579 U. S. ____ (2016)             1

                      ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
    CURTIS GIOVANNI FLOWERS v. MISSISSIPPI
  ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 

                 COURT OF MISSISSIPPI

              No. 14–10486.   Decided June 20, 2016


   The motion of petitioner for leave to proceed in forma
pauperis and the petition for a writ of certiorari are granted.
The judgment is vacated, and the case is remanded to the
Supreme Court of Mississippi for further consideration in
light of Foster v. Chatman, 578 U. S. ___ (2016).
   JUSTICE ALITO, with whom JUSTICE THOMAS joins,
dissenting from the decision to grant, vacate, and remand.
   This Court often “GVRs” a case—that is, grants the
petition for a writ of certiorari, vacates the decision below,
and remands for reconsideration by the lower court—when
we believe that the lower court should give further
thought to its decision in light of an opinion of this Court
that (1) came after the decision under review and
(2) changed or clarified the governing legal principles in a
way that could possibly alter the decision of the lower
court. In this case and two others, Williams v. Louisiana,
No. 14–9409 and Floyd v. Alabama, No. 15–7553, the
Court misuses the GVR vehicle. The Court GVRs these
petitions in light of our decision in Foster v. Chatman, 578
U. S. ___ (2016), which held, based on all the circumstances
in that case, that a state prosecutor violated Batson v.
Kentucky, 476 U. S. 79 (1986), by striking potential jurors
based on race. Our decision in Foster postdated the deci-
sion of the Supreme Court of Mississippi in the present
case, but Foster did not change or clarify the Batson rule
in any way. Accordingly, there is no ground for a GVR in
light of Foster.
   The ultimate issue in Batson is a pure question of fact—
2                 FLOWERS v. MISSISSIPPI

                     ALITO, J., dissenting

whether a party exercising a peremptory challenge en-
gaged in intentional discrimination on the basis of race.
476 U. S., at 93–94. If the party contesting a particular
peremptory challenge makes out a prima facie case (that
is, points out a pattern of strikes that calls for further
inquiry), the party exercising the challenge must provide a
legitimate race-neutral reason for the strike. Id., at 97. If
that is done, the trial judge must then make a finding as
to whether the party exercising the peremptory challenge
is telling the truth. Id., at 98. There is no mechanical
formula for the trial judge to use in making that decision,
and in some cases the finding may be based on very intan-
gible factors, such as the demeanor of the prospective juror
in question and that of the attorney who exercised the
strike. Snyder v. Louisiana, 552 U. S. 472, 477 (2008).
For this reason and others, the finding of the trial judge is
entitled to a very healthy measure of deference. Id., at
479.
   Foster did not change the Batson analysis one iota. In
Foster, the Court’s determination that the prosecution
struck jurors based on race—a determination with which I
fully agreed, 578 U. S., at ___ (ALITO, J., concurring in
judgment) (slip op., at 9)—was based on numerous case-
specific factors, including evidence that racial considera-
tions permeated the jury selection process from start to
finish and the prosecution’s shifting and unreliable expla-
nations for its strikes of black potential jurors in light of
that evidence.
   In particular, evidence of racial bias in Foster included
the following facts revealed to be a part of the prosecu-
tion’s jury selection file, which the Court held undermined
the prosecution’s defense of its strikes: copies of a jury
venire list highlighting the names of black jurors; a draft
affidavit from a prosecution investigator ranking black
potential jurors; notes identifying black prospective jurors
as “B#1,” B#2,” and “B#3”; notes suggesting that the pros-
                  Cite as: 579 U. S. ____ (2016)            3

                      ALITO, J., dissenting

ecution marked “N” (for “no”) next to the names of all
black prospective jurors; a “definite NO’s” list that included
the names of all black prospective jurors; a document
relating to one juror with notes about the Church of Christ
that stated “NO. No Black Church”; the questionnaires
filled out by jurors, in which the race of black prospective
jurors was circled. Id., at ___–___ (majority opinion) (slip
op., at 3–5). But this overwhelming evidence of race con-
sciousness was not the end of the Court’s analysis in Fos-
ter. The Court also discussed evidence that the prosecu-
tion’s stated reasons for striking black jurors were
inconsistent and malleable. The prosecution’s various
rationales for its strikes “ha[d] no grounding in fact,” were
“contradicted by the record,” and simply “cannot be credited,”
according to the Court. Id., at ___, ___ (slip op., at 12, 15,
17). Some of the purported reasons for striking black
prospective jurors “shifted over time” and could not with-
stand close scrutiny. Id., at ___ (slip op., at 18). And other
reasons, “while not explicitly contradicted by the record,
[we]re difficult to credit” in light of the way in which the
State treated similarly situated white jurors. Id., at ___–
___ (slip op., at 15–17). In sum, the Court’s decision in
Foster relied on substantial, case-specific evidence in
reaching its conclusion that the prosecution’s proffered
explanations for striking black prospective jurors could not
be credited.
   In the three cases in which the Court now GVRs in light
of Foster, what the Court is saying, in effect, is something
like this. If we granted review in these cases, we would
delve into the facts and carefully review the trial judge’s
findings on the question of the prosecution’s intent. That
is what we did in Foster. But we do not often engage in
review of such case-specific factual questions, and we do
not want to do that here. Therefore, we will grant, vacate,
and remand so that the lower court can do—or, redo—that
hard work.
4                 FLOWERS v. MISSISSIPPI

                     ALITO, J., dissenting

   This is not a responsible use of the GVR power. In this
case, the Supreme Court of Mississippi decided the Batson
issue. It found insufficient grounds to overturn the trial
judge’s finding that the contested strikes were not based
on race. If the majority wishes to review that decision, it
should grant the petition for a writ of certiorari, issue a
briefing schedule, and hear argument. If the majority is
not willing to spend the time that full review would re-
quire, it should deny the petition.
   The Court’s decision today is not really a GVR in light of
our factbound decision in Foster. It is, rather, a GVR in
light of our 1986 decision in Batson. But saying that
would be ridiculous, because the lower courts fully consid-
ered the Batson issue this petition raises. By granting,
vacating, and remanding, the Court treats the State Su-
preme Court like an imperious senior partner in a law
firm might treat an associate. Without pointing out any
errors in the State Supreme Court’s analysis, the majority
simply orders the State Supreme Court to redo its work.
We do not have that authority.
   I would deny the petition. I respectfully dissent.
