Bench Memos

Law & the Courts

Justice Kagan and Stare Decisis

In today’s decision in Ramos v. Louisiana, the Supreme Court ruled by a vote of 6 to 3 that the Constitution requires that jury convictions in state criminal trials be unanimous. In so holding, the justices divided sharply, and in an unusual alignment, on how stare decisis considerations ought to apply to the Court’s ruling in 1972 in Apodaca v. Oregon that Oregon’s allowance of conviction by a 10-2 vote was constitutionally permissible.

If I’m understanding them correctly, three justices—Justice Gorsuch in a plurality portion of his lead opinion, joined by Justice Ginsburg and Justice Breyer—say that Apodaca doesn’t really count as a precedent. Three justices—Justice Thomas, Justice Sotomayor, and Justice Kavanaugh—vote to overrule Apodaca. And the three justices in dissent—Alito, joined by the Chief Justice and (with the exception of one subpart) Kagan—invoke the “enormous reliance interests” of the two states that “[f]or 48 years … have conducted thousands and thousands of trials under rules allowing non-unanimous verdicts” and, on that ground, would decline to overrule Apodaca. (They don’t maintain that Apodaca reached the right result.)

There is much that can and will be written about this interesting case and the five separate opinions that it produced. Here I would like to focus on Justice Kagan’s rather surprising joinder in Justice Alito’s dissent (including in the part in which Alito decries “ad hominem [racial] rhetoric” in the lead opinion). Kagan’s joinder is surprising because I would have thought her much more susceptible than Alito or the Chief to Gorsuch’s plea that no one should vote to “leave Mr. Ramos in prison for the rest of his life” without being “prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment.”

One possible explanation for Kagan’s vote is that she holds a very strong view of stare decisis on constitutional questions. Kagan arguably suggested such a view just one year ago, when she joined a much-trumpeted dissent by Justice Breyer (in Franchise Tax Board v. Hyatt) that vaunted the importance of “stability in the law” and proclaimed that the Court should “overrul[e] prior precedent only when the circumstances demand it” (whatever those last five words might mean). But a mere week later she (along with Breyer, Ginsburg, and Sotomayor) did not hesitate to overrule a 130-year-old precedent. She again presented herself as a staunch defender of stare decisis in her dissent last June in Knick v. Township of Scott. But after the Court ruled days later in Rucho v. Common Cause that claims of excessive partisan gerrymandering are not justiciable, Kagan declared that she would “never accept” that ruling.

Further: In 2013, Kagan, in voting to overrule a constitutional precedent in Alleyne v. United States, joined an opinion by Justice Thomas that stated that the “force of stare decisis is at its nadir in cases concerning procedural rules that implicate fundamental constitutional protections.” In 2015, she joined an opinion by Justice Scalia in United States v. Johnson that overruled two precedents on the simple ground that they had “proved to be anything but evenhanded, predictable, or consistent.” In that same year she joined Justice Kennedy’s majority opinion in Obergefell v. Hodges, which only obliquely acknowledged that it was overruling overruled the Court’s 1972 summary decision in Baker v. Nelson. And in 2016 she voted to overrule two death-penalty precedents on the ground that (as the opinion she joined put it) their “underpinnings” had been “eroded” by later cases.

Perhaps Kagan has resolved to try to become more consistent in applying a very strong view of stare decisis. But it’s fair to wonder whether any such resolution is simply strategic—based, that is, on a judgment that, given the revised composition of the Court, she has more to lose than to gain from precedents being overruled.

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