Thompson v. Henderson

1 Cite as: 600 U. S. ____ (2023)
Statement of A
LITO, J.
SUPREME COURT OF THE UNITED STATES
ALICIA THOMPSON v. JANELLE HENDERSON
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF WASHINGTON
No. 22–823. Decided June 30, 2023
The petition for a writ of certiorari is denied.
Statement of J
USTICE ALITO, with whom JUSTICE
THOMAS joins, respecting the denial of certiorari.
I concur in the denial of certiorari because this case is in
an interlocutory posture, and it is not clear whether it pre-
sents any “federal issue” that has been “finally decided by
the” Washington Supreme Court. Cox Broadcasting Corp.
v. Cohn, 420 U. S. 469, 480 (1975); see 28 U. S. C. §1257.
But if the Washington courts understand the decision below
to be as sweeping as it appears, review may eventually be
required.
This case started as an ordinary tort suit over a car acci-
dent. The victim of the accident, plaintiff Janelle Hender-
son, is black, as was her trial counsel. Alicia Thompson, the
defendant, is white, as was her trial counsel. Thompson
admitted fault, so the suit was over damages. Henderson
claimed that the whiplash she suffered from the accident
“seriously exacerbated” her Tourette’s syndrome, and she
asked for $3.5 million in damages. 200 Wash. 2d 417, 422–
424, 518 P. 3d 1011, 1017 (2022). Defense counsel naturally
tried to convince the jury that such a large award was not
justified, and the jury, which awarded Henderson only
$9,200, was apparently persuaded. Id., at 422, 518 P. 3d,
at 1017. Henderson moved for a new trial, claiming that
the small award was based on racial bias, but the trial court
denied the motion without a hearing. Id., at 428, 518 P. 3d,
at 1019–1020.
In a remarkable decision, the Washington Supreme

2 THOMPSON v. HENDERSON
Statement of A
LITO, J.
Court reversed due to the possibility that the jury’s award
was tainted by prejudice, and it remanded for a hearing
that appears to have no precedent in American law. In sup-
port of its decision, the court cited several statements made
by defense counsel in her closing argument. It pointed to
defense counsel’s description of Henderson as “quite com-
bative” on the witness stand and her description of Thomp-
son as “intimidated and emotional about the process.” Id.,
at 425, 518 P. 3d, at 1018 (internal quotation marks omit-
ted; emphasis in original). The court found that these com-
ments played on stereotypes about the “‘angry Black
woman’” and the “victimhood” of white women. Id., at 436–
437, and n. 8, 518 P. 3d, at 1023–1024, and n. 8. The court
also cited defense counsel’s insinuation that Henderson was
motivated by a desire for a financial windfall, as well as her
suggestion that Henderson could not have suffered $3.5
million in damages since she had not even mentioned the
accident when she saw her doctor a short time thereafter.
Id., at 425, 518 P. 3d, at 1018. The court thought that this
argument “alluded to racist stereotypes”—that black
women are “lazy, deceptive, and greedy” and are “untrust-
worthy and motivated by the desire to acquire an unearned
financial windfall.” Id., at 437, 518 P. 3d, at 1024. The
court also faulted defense counsel for suggesting that Hen-
derson’s lay witnesses, all of whom were black, had been
prepared or coached because they all used the same
phrase—“‘life of the party’”—to describe Henderson’s per-
sonality before the accident. Ibid. The court viewed this
tactic as inviting jurors to make decisions about these wit-
nesses “as a group and . . . based on biases about race and
truthfulness.” Id., at 438, 518 P. 3d, at 1024.
Because of these comments by defense counsel, the court
found that an objective observer “could conclude that rac-
ism was a factor in the verdict,” and it therefore held “that
Henderson is entitled to an evidentiary hearing on her new

3 Cite as: 600 U. S. ____ (2023)
Statement of A
LITO, J.
trial motion.” Id., at 429, 439, 518 P. 3d, at 1020, 1025 (em-
phasis in original). The court added that “[a]t that hearing,
the [trial] court must presume racism was a factor in the
verdict and Thompson bears the burden of proving it was
not.” Id., at 429, 518 P. 3d, at 1020.
The Washington Supreme Court’s decision raises serious
and troubling issues of due process and equal protection. In
some cases, it will have the practical effect of inhibiting an
attorney from engaging in standard and long-accepted trial
practices: attempting to undermine the credibility of ad-
verse witnesses, seeking to bolster the credibility of the at-
torney’s client, raising the possibility of a counterparty’s pe-
cuniary motives, and suggesting that witnesses may have
been coached or coordinated their stories. Such tactics are
common and have long been viewed as proper features of
our adversarial system. See, e.g., Geders v. United States,
425 U. S. 80, 89–90 (1976) (emphasizing that “[s]killful
cross-examination” is a remedy to deal with “‘coached’ wit-
nesses”); Marcic v. Reinauer Transp. Cos., 397 F. 3d 120,
125 (CA2 2005) (“A claim for money damages does create a
financial incentive to be untruthful, and it was not im-
proper for opposing counsel to invoke this incentive in an
attempt to impeach plaintiff”); Fed. Rule Evid.
801(d)(1)(B)(i) (contemplating impeachment based on “im-
proper influence or motive”).
“‘Due process requires that there be an opportunity to
present every available defense,’” Lindsey v. Normet, 405
U. S. 56, 66 (1972) (quoting American Surety Co. v. Bald-
win, 287 U. S. 156, 168 (1932)), but the decision below at-
taches a high price to the use of these run-of-the-mill de-
fenses in cases where parties are of particular races. The
Washington Supreme Court endorsed an evidentiary hear-
ing based on the mere “possibility” of bias, and its analysis
appears to hold that such litigation strategies per se raise
at least the “possibility” of such bias. 200 Wash. 2d, at 434,
518 P. 3d, at 1023 (emphasis added). Moreover, the State

4 THOMPSON v. HENDERSON
Statement of A
LITO, J.
Supreme Court’s rule requires the nonmoving party to
prove at a hearing not that it did not intend to appeal to
racial bias, but that racial bias (perhaps even subconscious
bias) had no impact on the jurors. See ibid. How the Wash-
ington Supreme Court thinks this can be done is unclear.
In sum, the opinion below, taken at face value, appears
to mean that in any case between a white party and a black
party, the attorney for the white party must either operate
under special, crippling rules or expect to face an eviden-
tiary hearing at which racism will be presumed and the at-
torney will bear the burden of somehow proving his or her
innocence. It is possible that the Washington Supreme
Court will subsequently interpret its brand-new decision
more narrowly, but the procedures it appears to set out
would raise serious due-process concerns.
The Washington Supreme Court’s opinion is also on a col-
lision course with the Equal Protection Clause, as our re-
cent opinion in Students for Fair Admissions, Inc. v. Presi-
dent and Fellows of Harvard College, 600 U. S. ___ (2023)
(SFFA), demonstrates. The procedures the state court has
imposed appear likely to have the effect of cordoning off
otherwise-lawful areas of inquiry and argument solely be-
cause of race, violating the central constitutional command
that the law must “be the same for the black as for the
white; that all persons . . . shall stand equal before the laws
of the States.” Id., at ___ (slip op., at 10) (quoting Strauder
v. West Virginia, 100 U. S. 303, 307 (1880)). The Washing-
ton Supreme Court justified its prophylactic rules in part
by reasoning that “[r]acism is endemic” in our society, 200
Wash. 2d, at 421, 518 P. 3d, at 1016, and that “implicit, in-
stitutional, and unconscious biases, in addition to purpose-
ful discrimination, have influenced jury verdicts in Wash-
ington State,” id., at 435, 518 P. 3d, at 1023 (emphasis in
original). But as we reaffirmed in SFFA, the Fourteenth
Amendment’s equal-treatment principle yields only when
necessary to remediate “specific, identified instances of . . .

5 Cite as: 600 U. S. ____ (2023)
Statement of A
LITO, J.
discrimination that violat[e] the Constitution or a statute,”
not generalized past or ongoing discrimination. 600 U. S.,
at ___ (slip op., at 15). The decision of the Washington Su-
preme Court, however, threatens “to inject racial consider-
ations into every [litigation] decision” parties make. Texas
Dept. of Housing and Community Affairs v. Inclusive Com-
munities Project, Inc., 576 U. S. 519, 543 (2015).
Nothing in the papers before us suggests that defense
counsel would have tried this case differently or that the
jury award would have been larger if the races of the plain-
tiff and defendant had been different. As a result, the deci-
sion below, far from combating racism, institutionalizes a
variation of that odious practice. See SFFA, 600 U. S., at
___ (slip op., at 38) (discussing the unfitness of the judiciary
to determine whether reliance on race is benevolent rather
than malign).
The decision below, like the decision in Roberts v. McDon-
ald, No. 22–757, in which I have filed a separate statement,
illustrates the danger of departing from the foundational
principle that in the United States all people are entitled to
“equal justice under law,” as the façade of our building pro-
claims. Every one of the 330 million inhabitants of our
country is a unique individual and must be treated as such
by the law. It is not an exaggeration to say that our extraor-
dinarily diverse population will not be able to live and work
together harmoniously and productively if we depart from
that principle and succumb to the growing tendency in
many quarters to divide Americans up by race or ancestry.