In Confirming That Felony Convictions in Federal and State Courts Require Unanimous Verdicts, the Supreme Court Hints at How It


Last week the United States Supreme Court confirmed something most Americans assumed and understood to be long recognized – that criminal defendants’ constitutional right to a jury trial requires a unanimous jury verdict, in both federal and state courts. But this seemingly simple and straightforward proposition spawned five separate opinions that may suggest how the Court will treat more controversial issues in future cases.

In Ramos v. Louisiana, ___ U.S. ___, 2020 WL 1906545 (Apr. 20. 2020), the Court voted 6-3 to reverse the murder conviction and life imprisonment sentence of a defendant convicted by a Louisiana jury whose verdict was 10-2 against him. For over 100 years, Louisiana was one of two states (Oregon was the other) that permitted non-unanimous verdicts in felony criminal cases. The Court “took this case to decide whether the Sixth Amendment right to a jury trial – as incorporated against the States by way of the Fourteenth Amendment – requires a unanimous verdict to convict a defendant of a serious offense.” Id. at *3.

Although the Sixth Amendment refers only to a “trial by an impartial jury” without explicitly requiring a unanimous verdict in criminal cases, Justice Gorsuch’s majority opinion readily found that when the Amendment was ratified in 1791, the common law had “unmistakably” required unanimity for centuries. Id. at *4. His opinion also noted that this “original public meaning was [not] lost to time and only recently recovered,” noting that the Court had “repeatedly and over many years, recognized that the Sixth Amendment requires unanimity.” Id. at *5. No Justice disputed those findings’ accuracy or significance. In that regard, the frequently debated concept of originalism – which instructs courts to construe the Constitution to mean what its authors understood it to mean at the time – was not a source of debate.

But other topics were hotly contested in Ramos, most notably the doctrine of stare decisis, by which the Court adheres to its precedent – even precedent now believed to be wrong – where reliance on that precedent is longstanding and reversal of it would trigger too much upheaval. That doctrine was implicated in Ramos by the Court’s 1972 plurality decision in Apodoca v. Oregon and its companion case, Johnson v. Louisiana, both of which addressed those states’ laws permitting non-unanimous verdicts. In Apodaca, four Justices found that the Sixth Amendment required unanimity and applied to the states, another four Justices found that it applied to the states but no longer required unanimity under a “cost-benefit analysis,” and one Justice (Powell) found that it required unanimity but did not apply to the states under a “dual-track theory.” Id. at **6-7. The net result was that a plurality of five Justices upheld the two states’ non-unanimity laws but for different reasons.

Justice Gorsuch’s opinion found that both of those reasons were repudiated by prior and subsequent precedent and thus concluded that Apodaca amounted to “no controlling opinion at all” and should be disregarded, but only two Justices (Ginsburg and Breyer) fully embraced that conclusion. Id. at *8. In separate concurring opinions, Justices Thomas, Sotomayor, and Kavanaugh each agreed that Apodaca should be overruled as wrongly decided, and the latter proposed a multi-prong standard to govern when stare decisis should and should not be employed, noting that “in just the last few Terms, every current member of this Court has voted to overrule multiple constitutional precedents” and arguing that “a structured methodology and roadmap” was needed to ensure such questions would be addressed “in a neutral and consistent manner.” Id. at *17. And in a dissenting opinion joined by Chief Justice Roberts and Justice Kagan, Justice Alito similarly urged the Court to adopt “a body of neutral principles on the question of overruling precedent” while flatly disagreeing with Justice Gorsuch’s position that Apodaca was a precedential nullity. Noting that many equally divided decisions have been treated as precedential, Justice Alito chided: “Three Justices take the position that Apodaca was never a precedent. The only truly fitting response to this argument is: ‘Really?’” Id. at *32 (Alito, J., dissenting).

Another cause for division in Ramos was the role and effect of the racist histories underlying Louisiana’s and Oregon’s non-unanimity laws. Justice Gorsuch’s opinion detailed at length the Jim Crow and KKK origins of those laws – which were originally intended to dilute the influence of minorities after their right to serve on juries was recognized – even though both states had long ago renounced those racist motivations and no Justice argued they provided a ground for striking the laws. Id. at *3. Still, Justice Gorsuch (and, in their concurrences, Justices Sotomayor and Kavanaugh) argued that the laws’ abhorrent underpinnings further supported their conclusions to overrule Apodaca. But Justice Alito’s dissent excoriated that argument, claiming that “the majority regrettably succumbs to [the recent] trend” whereby “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.” Id. at *31 (Alito, J., dissenting).

Those debates regarding the roles of stare decisis and lawmakers’ motivations could provide important hints as to how the Justices may handle future cases presenting hot button issues far more divisive than the noncontroversial unanimity issue presented in Ramos. Regarding abortion rights, for instance, Justice Kavanaugh – long suspected as a potential swing vote who might overturn Roe v. Wade – went out of his way to include Planned Parenthood v. Casey – which upheld Roe’s holding based on stare decisis even while rejecting Roe’s trimester framework – in a list of decisions which “entailed overruling precedent,” thereby suggesting that he might be prepared to overrule Casey and Roe. Id. at *18 (Kavanaugh, J., concurring). And Justice Alito –after stating that “the majority sets an important precedent about stare decisis” by “striking down a precedent upon which there has been massive and entirely reasonable reliance” – adds that he “assume[s] that those in the majority will apply the same standard in future cases” addressing whether to overturn precedent which, like Roe, has triggered extensive reliance. Id. at *42 (Alito, J., dissenting). At the same time, the fact that Justice Kagan opted to join Justice Alito’s dissent – but not as to its final “reliance” part – could suggest that she regards a robust stare decisis doctrine as the best, and perhaps only, hope of preventing the future reversal of Roe and its progeny.

As to lawmakers’ motivations, many recent challenges to Trump Administration policies, including those restricting immigration and travel and inquiring as to citizenship in connection with the census, have relied more on President Trump’s alleged motives in adopting them than on the limits of his constitutional powers or the discriminatory effect of the policies themselves. From the other end of the political spectrum, other recent challenges to state laws barring religious institutions from receiving public funds have similarly cited their proponents’ alleged motives. To date, the Court’s resolution of those and other such challenges have avoided deciding the broader issue regarding the role of lawmakers’ motives in deciding the legality of the laws they enacted.

Ramos did not involve any such big-ticket wars, but its five separate opinions – and the division of Justices they spawned – may signal how and where the battle lines may be drawn in the future. And even though the issue Ramos decided – the Sixth Amendment’s unanimous verdict requirement in criminal jury trials – was noncontroversial, its resolution is not insignificant.

For had the Court permitted Louisiana and Oregon to employ and enforce non-unanimous criminal verdicts, law enforcement advocates in other states almost certainly would have lobbied their lawmakers to adopt similar laws. Indeed, Justice Gorsuch’s opinion noted that “14 jurisdictions have already us that they would value the right to ‘experiment’ with nonunanimous juries.” Id. at *14. And such lobbying efforts have already followed last month’s decision in Kahler v. Kansas, which held that the Constitution did not require – and hence, that states need not recognize – the traditional insanity defense long available in criminal trials.

Moreover, a decision upholding the Louisiana and Oregon laws might have embraced the flawed rationale often advanced by advocates of non-unanimous criminal verdicts, i.e., that non-unanimity discourages hung juries, which courts – and the states that fund them – abhor because they require retrials and waste resources. Beyond allowing courts’ and states’ interests in conserving resources to trump their obligation to dispense justice, that misplaced notion is simply wrong. Far from discouraging hung juries, allowing non-unanimous verdicts would discourage open-minded, give-and-take deliberation and consensus, which are supposed to be the very purpose of the jury system. And however wasteful hung juries may be, they are far preferable to the ultimate scourge our justice system is designed to prevent – erroneous convictions of innocent defendants.

Finally, a contrary decision based on stare decisis would have wrongly allowed institutional concerns to override individual liberty. The concluding paragraph of Justice Gorsuch’s opinion dramatically captures the gross injustice such a ruling would have wrought:

On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment. No one before us suggests that the error was harmless. Louisiana does not claim precedent commands an affirmance. In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some other. But where is the justice in that? Every judge must learn to live with the fact that he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right. Id. at *14.

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