In the case of Avery v. Georgia, Robert Avery, an African American man was convicted by an all-white jury for rape in a Georgia state court. He appealed to the Supreme Court on grounds that his Fourteenth Amendment rights were violated due to racial discrimination during jury selection process. The State used yellow slips of paper for white potential jurors and white slips for black potential jurors which made it easier to exclude blacks from juries without overtly stating race as a reason. The Supreme Court ruled 7-2 in favor of Avery, overturning his conviction and ruling that this practice did indeed violate equal protection under law guaranteed by the Fourteenth Amendment because it allowed officials to easily discriminate based on race during jury selection process.

In the dissenting opinion for Avery v. Georgia, Justice Frankfurter disagreed with the majority's decision to overturn Avery's conviction based on racial discrimination in jury selection. He argued that there was insufficient evidence to prove systematic exclusion of black jurors, as only one instance of possible bias was presented - a single trial where no African Americans were selected for the jury despite their presence in the pool. Furthermore, he contended that it is not enough to show potential prejudice; rather, actual harm must be demonstrated by showing that an unbiased jury would have reached a different verdict. In his view, this burden had not been met and thus did not warrant reversal of Avery’s conviction.