NRPLUS MEMBER ARTICLE T he Supreme Court’s decision in Ramos v. Louisiana ruled that the Constitution requires a unanimous jury verdict to convict anyone accused of a serious crime. Most Americans probably thought this was already the law. It was generally accepted as the law when the Bill of Rights was written, and for a century thereafter. But two states, Louisiana and Oregon, have laws allowing convictions on a 10–2 vote, which survived a challenge in 1972 (Louisiana repealed its law in 2018 for new prosecutions). The Court’s 6–3 decision was written by Justice Gorsuch, over a dissent by Justice Alito that was joined by Chief Justice Roberts and Justice Kagan. Justices Thomas, Sotomayor, and Kavanaugh all wrote separate opinions offering different reasons for joining the Court’s ruling. The very non-unanimous Court reveals some fascinating divides and may give us a preview of the Court’s thinking about bigger questions looming down the road.
The various Ramos opinions covered three heated battlegrounds in constitutional law: (1) whether to read the Constitution to mean what it meant when it was written; (2) when and how to overturn existing precedents; and (3) whether neutral, non-discriminatory laws should be invalidated if they were written for a discriminatory purpose. (For Supreme Court aficionados, Ramos also delved on the side into two other long-running questions: how much weight the Court should give to social-science data or to a “consensus” among the states, and why and how parts of the Bill of Rights apply to the states.) Looming behind those debates about judicial methods are differing views of how to resolve big-ticket questions that will come before the Court in the future, some of them quite soon.
Unanimous in 1791
A regular hot topic in the Supreme Court is originalism: whether the Constitution’s language should be read to mean what the people who ratified it understood it to mean at the time. In this case, “at the time” mostly means 1791, when the states ratified the Sixth Amendment’s guarantee of a trial by jury.
In Ramos, however, there was surprisingly limited debate over originalism. The Sixth Amendment says only “trial by an impartial jury,” and in fact, the Senate in 1791 deleted James Madison’s original reference to unanimous juries, which had passed the House. But the Court found that a verdict by a unanimous jury was a universal and longstanding assumption in the common law of the time, dating back to the 14th century and explicitly included in the constitutions of six states. No justice seriously attempted to argue the point. The Court concluded that the Senate had simply left the term “impartial jury” as a stand-in for the prevailing assumptions about what a jury trial meant, including unanimous verdicts.
Nor did any justice quarrel with the view that the Sixth Amendment must mean today what it originally meant. The use of originalism is sufficiently routine now that the Court’s liberals no longer see the point in protesting it in cases when they agree with the outcome. The only real debate over how to read the Sixth Amendment was about the 1972 decision, Apodaca v. Oregon. Justice Gorsuch’s majority opinion savaged Apodaca for engaging in a “cost-benefit analysis” instead of looking at the history of “the ancient guarantee of a unanimous jury verdict.” Justice Alito’s dissent argued that history could not answer the whole question: If many aspects of 18th-century jury practice were not mandated by the Constitution, some review of which functions were essential was required.
While Alito has a point, Gorsuch has the better argument, given the extensive evidence that legal scholars, state constitutions, James Madison, and the House of Representatives all considered unanimous verdicts a sufficiently fundamental part of the jury system to describe it as such. History, as usual, had the answer all along.
Divided in 1972
The biggest divide on the Court was over stare decisis, the doctrine that says the Court should follow its own prior precedents. Each of the five opinions laid out its own view of precedent.
The unique problem was Apodaca. Four justices in that case agreed that the Sixth Amendment did not require unanimous juries. Four agreed that it did, and that the 14th Amendment applied that requirement to the states. In the middle, Justice Lewis Powell (often the swing justice of his day) agreed with the dissenters that the Sixth Amendment required unanimity, but decided that the 14th Amendment did not impose all Sixth Amendment rules on the states. The opinion of the four-justice plurality could not be the law, because a majority of the Court had rejected their view of the unanimity requirement. The opinion of Justice Powell could not be the law, since he was writing only for himself, and the Court in later decisions had rejected his entire “dual-track” theory that rights could be only partially invoked against the states. Justice Gorsuch concluded that this meant Apodaca amounted to “no controlling opinion at all,” and should be disregarded.
This is a controversial stance, and one that touches a hot-button history. In the 1978 Bakke case, which preserved racial preferences in college admissions, another 4–1–4 split on the Court found Justice Powell writing alone again, crafting an intermediate position that was inconsistent with each of the other two blocs. The whole shift in emphasis to “diversity” as a rationale for racial preferences was Powell’s alone. Which Bakke opinion represented the law has been a long-running dispute; Justice Alito’s dissent suggested that Gorsuch’s approach would have treated Bakke as largely leaving a clean slate for the Court to return to later. Gorsuch, for his part, warned of the danger of idiosyncratic swing justices: “Every occasion on which the Court is evenly split would present an opportunity for single Justices to overturn precedent to bind future majorities.” Justice Alito, in dissent, was scornful: “Three Justices take the position that Apodaca was never a precedent. The only truly fitting response to this argument is: ‘Really?’”
Only Justices Ginsburg and Breyer entirely embraced Gorsuch’s view, although Justice Thomas, while reiterating his typical skepticism of precedent, was more concerned with the 14th Amendment precedents that he has been writing about for years. Justice Sotomayor took pains to insist that she agreed with Gorsuch only because the case involved criminal procedure (an area where she feels that pro-prosecution precedent should carry less weight) and because “Apodaca is a universe of one — an opinion uniquely irreconcilable with not just one, but two, strands of constitutional precedent well established both before and after the decision.” She would be less inclined to join decisions that “threatened vast regulatory and economic consequences” from overturning precedents.
By contrast, both Justice Kavanaugh’s opinion and Justice Alito’s dissent delved deep into the nuances of stare decisis, in ways that offer tantalizing glimpses of the elephant in the room in any discussion of stare decisis: Roe v. Wade. Kavanaugh stepped back and laid out a scholarly, multi-factor test for deciding when to follow precedent. While he was more respectful of the importance of precedent than Gorsuch, he also noted that “in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents” and warned that the Court needed “a structured methodology and roadmap” for when to overrule precedents if it was going to treat them “in a neutral and consistent manner.”
Kavanaugh came right out and said one thing that previous justices have often only danced around: It matters how wrong the previous decision was, and disagreement over whether a decision was wrong “is sometimes the real dispute when judges joust over stare decisis.” In this regard, he agreed with Gorsuch, who put the matter bluntly: “No one on the Court today is prepared to say [Apodaca] was rightly decided, and stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.”
Kavanaugh ultimately concluded that Apodaca was “egregiously wrong,” and this weighed heavily into his analysis. So did his view (alone on the Court) that the new Ramos rule would not apply retroactively, and so would not unsettle too many convictions. Kavanaugh also argued — belying the habit of painting courts as ivory-tower institutions doing purely academic work — that “the Court may also scrutinize the precedent’s real-world effects on the citizenry, not just its effects on the law and the legal system.”
On the subject of abortion, Kavanaugh went out of his way, in listing “some of the Court’s most notable and consequential decisions” that “entailed overruling precedent,” to include Planned Parenthood v. Casey. Casey, in 1992, claimed to uphold Roe entirely on the grounds of the vital importance of stare decisis. Justice Scalia’s now-legendary dissent in Casey eviscerated the Court for claiming that its hands were tied by precedent, even as it rewrote both the flimsy legal rationale of Roe and its medically obsolete trimester framework. By classifying Casey as an overruling of precedent, and adding a footnote defending that view of the decision, Kavanaugh is openly signaling his agreement with Scalia’s critique of Casey as an unprincipled hash.
For Justice Alito, Casey is a more direct memory: He was on the Third Circuit panel in that case, and would have upheld the entire Pennsylvania abortion law that the Court struck down in 1992. But his approach in Apodaca, joined by Roberts and Kagan, emphasized the vital role of precedent:
We begin with the presumption that we will follow precedent . . . the Court should have a body of neutral principles on the question of overruling precedent. The doctrine should not be transformed into a tool that favors particular outcomes . . . If individual Justices apply different standards for overruling past decisions, the overall effects of the doctrine will not be neutral.
While this is not actually that far from Kavanaugh’s framework, the respectful treatment of precedent here and the alliance between Alito and Roberts, on the one hand, and Kagan, on the other, raises further tea-leaf-reading questions about where Alito and Roberts will draw the line in the future. Ed Whelan sees a pragmatic strategic effort by Kagan to draw Alito and Roberts away from the instincts of Gorsuch and Thomas, in particular, to overturn more past decisions.
The Long Shadow of Bigotry
What set Justice Alito off even more than Justice Gorsuch’s take on precedent was the opening of Gorsuch’s opinion, laying out the Jim Crow roots of Louisiana’s 1898 adoption of non-unanimous juries, and the roots of Oregon’s law in the Ku Klux Klan’s domination of Oregon politics in the 1920s and 1930s. This was not, strictly speaking, relevant to the question before the Court: No justice argued that the openly racist roots of the two states’ non-unanimous jury laws was a basis for striking them down, especially given that neither law was itself racially discriminatory (although Justice Kavanaugh argued that such laws could continue to have discriminatory impact by ensuring that a lone black juror on a white jury could not stop a conviction). Justices Gorsuch, Kavanaugh, and Sotomayor all argued, however, that the tainted origins of these laws was a further reason not to give as much weight to society’s interest in keeping Apodaca as a precedent.
Justice Alito, joined by Roberts and Kagan, was having none of this:
Too much public discourse today is sullied by ad hominem rhetoric, that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents. The majority regrettably succumbs to this trend . . . what does that have to do with the broad constitutional question before us? The answer is: nothing . . . Some years ago the British Parliament enacted a law allowing non-unanimous verdicts. Was Parliament under the sway of the Klan? The Constitution of Puerto Rico permits non-unanimous verdicts. Were the framers of that Constitution racists? Non-unanimous verdicts were once advocated by the American Law Institute and the American Bar Association. Was their aim to promote white supremacy? And how about the prominent scholars who have taken the same position? Racists all? Of course not. So all the talk about the Klan, etc., is entirely out of place.
This is not an academic point. Many of the recent legal challenges to Trump-administration policies, such as the travel ban and the census citizenship question, depend on the argument that Trump’s bad motives are more important than whether he has constitutional powers or whether his policies actually discriminate in unlawful ways. The Court has thus far turned back those challenges on narrow grounds without deciding the broader questions about the role of motive. Chief Justice Roberts has played a starring role in those decisions.
It’s not only liberals, however, who are challenging government action based on bad motives, and not only executive motives that come under scrutiny. Just as the 1898 Louisiana convention was open about promoting white supremacy when it eliminated jury unanimity requirements, many states enacted “Blaine Amendments” in the preceding decades as a result of campaigns that were no less openly anti-Catholic. Those amendments, barring public funds from going to religious schools, are under legal assault, including in Espinoza v. Montana Department of Revenue, which was argued before the Supreme Court in January. The battle lines over the bigoted origins of longstanding laws could tell us something about how Espinoza will come out. Surely, between Espinoza and the torrent of “legal resistance” suits against Trump actions, the question is much on the justices’ minds.