Back in August 2019 I wrote about Calvin Duncan, a jailhouse lawyer with only a 10th grade education who got the Supreme Court of the United States to look at the issue of non-unanimous jury verdicts in criminal cases, a procedure permitted in only two states: Louisiana and Oregon. (see https://courtroomstrategy.com/2019/08/power-of-persistence-jailhouse-lawyer-takes-case-to-scotus/ ) Well in October 2019 the case was orally argued and today SCOTUS, in a fractured 6-3 decision, said non-unanimous jury verdicts are unconstitutional. In its decision, however, some justices took the opportunity to signal danger to Roe v. Wade.
Before I break down the splintered decision, a quick recap on the issue. In 1898, SCOTUS ruled that states could not exclude black people from serving on juries. Louisiana quickly responded by holding a Constitutional Convention whose purpose, as the judiciary committee stated, was “to establish the supremacy of the white race in this state to the extent to which it could be legally and constitutionally done.” Give them credit for at least being upfront about it. By then instituting 10-2 verdicts, the state could guarantee that if one or two black people somehow managed to make their way onto a jury, the other 10 would still be able to control the verdict. In Oregon, the provision was passed by voters in 1934, a time when racism, the KKK and bigotry were prevalent in the state and entrenched in Oregon’s law; while it had a very low black population, Oregon’s law was was meant to stop Catholics and Jews from having voices. Louisiana repealed its law and put unanimous verdicts in place, but Oregon did not, filing a brief in support of its law, even as it looked like the legislature was going to follow Louisiana’s lead.
The petitioner in the SCOTUS case was Evangelisto Ramos, convicted in Louisiana of murder by a 10-2 vote. Ramos argued that Louisiana’s non-unanimous jury provision violated his federal constitutional right to trial by jury and that the law had racist roots meant to diminish the votes of minority jurors.
Justice Neil Gorsuch wrote the majority opinion and was joined in key parts by Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Brett Kavanaugh. Justice Clarence Thomas concurred in the judgment on narrower grounds. Chief Justice John Roberts and Justice Elena Kagan joined Justice Samuel Alito’s dissent. While I personally agree that non-unanimous jury verdicts are bad criminal justice policy, I agree with the dissent that the decision as structured may mean even more harm to the important principal of stare decisis. That principle says generally that once an issue has been settled by the Court, future courts should follow and be bound by that precedent. Without this fundamental principal, laws could change every time the judges of the Court changed. Let’s go through the opinions:
A: Gorsuch Majority joined by Ginsburg, Sotomayor, Breyer & Kavanaugh:
Gorsuch began by noting the racist motives for laws and by then noting that the right to an impartial jury trial had to have some importance and meaning for the Founding Fathers to include it in the Sixth Amendment so he examined the roots of the right and noted:
The requirement of juror unanimity emerged in 14th century England and was soon accepted as a vital right protected by the common law. As Blackstone explained, no person could be found guilty of a serious crime unless “the truth of every accusation . . . should . . . be confirmed by the
unanimous suffrage of twelve of his equals and neighbors,
indifferently chosen, and superior to all suspicion.”
Justice Gorsuch then pointed out that many of the original State’s constitutions specifically required a unanimous jury verdict in criminal cases so that when James Madison drafted the Sixth Amendment to the Constitution, he surely meant to guarantee an impartial and unanimous jury. He then cited to 13 decisions over 120 years where SCOTUS said the Sixth Amendment requires unanimity and declared “if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court,” since the Fourteenth Amendment makes the Constitution applicable to the States.
Seems pretty clear cut – so what’s the issue? Well Gorsuch and the majority had to deal with the fact that this issue had come up in two cases in 1972, Apodaca v. Oregon and Johnson v. Louisiana (generally referenced together as Apodaca and in those cases the laws were upheld by SCOTUS. Oops.
Gorsuch begins by dissecting the heavily fractured decisions in Apodaca. There, four justices voted outright to strike the laws down as unconstitutional under the Sixth Amendment. Four justices felt that unanimity did not serve an important enough function in contemporary society and then quickly and without much explanation decided that unanimity’s benefits did not outweigh its costs to the States. The tie breaker was Justice Lewis Powell’s odd decision that the Fourteenth Amendment didn’t necessarily make ALL of the Constitution applicable to the States. Justice Powell believed in a “dual-track” system where certain constitutional rights could mean one thing under Federal law and another under State law. While SCOTUS has never held such a way before or since, Powell’s decision became the one that upheld the law.
Gorsuch said it was time to make it clear that Powell’s reasoning in Apodaca, which had been labeled “an exception” and “unusual” in later SCOTUS cases, was not the law of the land. He also held that due to its fractured and guidance-less opinions it was not precedent at all. He noted that Powell agreed that the US Constitution guaranteed a unanimous verdict but just believed in this outlier “dual-track” analysis which has been repeatedly rejected since by SCOTUS. He said that due to this, the Court was not bound by Apodaca.
He then addressed stare decisis head on and said even if the Court may have been bound by the precedent of Apodaca, it no longer has to be:
Of course, the precedents of this Court warrant our deep respect as embodying the considered views of those who have come before. But stare decisis has never been treated as “an inexorable command. And the doctrine is “at its weakest when we interpret the Constitution” because a mistaken judicial interpretation of that supreme law is often “practically impossible” to correct through other means. To balance these considerations, when it revisits a precedent this Court has traditionally considered “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.”
All those factors, Gorsuch wrote, weigh in favor of overturning Apodaca. Substance must take priority over form. In a strikingly personal and powerful conclusion that can be used to apply to all wrongful conviction cases in the future he stated:
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 others. But where is the justice in that? Every judge must learn to live with the fact 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.
B: Sotomayor concurrence: Justice Sotomayor wrote her own concurrence opinion though she stated she agreed with the vast majority of Gorsuch’s opinion. But she has taken the lead on criminal justice issues (as the only judge on the SCOTUS bench with real criminal justice experience). She says Apodaca is a “universe of one” and that stare decisis is of less importance in the criminal justice arena. She noted the racist foundations of the laws and that the constitutional protection here ranks among the most essential: the right to put the State to its burden, in a jury trial that comports with the Sixth Amendment, before facing criminal punishment. . . . Today, Louisiana’s and Oregon’s laws are fully—and rightly—relegated to the dustbin of history. And so, too, is Apodaca. While overruling precedent must be rare, this Court should not shy away from correcting its errors where
the right to avoid imprisonment pursuant to unconstitutional procedures hangs in the balance.
C: Kavanaugh concurrence – a warning bell on Roe v. Wade: This is where things get dicey. Justice Kavanaugh wrote his own opinion to express his views on one topic: stare decisis. I won’t get into it in detail here but he writes a lengthy dissertation on when stare decisis should be given strongest deference (where Courts have interpreted statutory issues) and weakest deference (constitutional interpretations). In addition to taking Apodaca through his analysis, and deciding that it is not worthy of stare decisis deference, Kavanaugh makes a statement that should concern anyone who believes Roe v. Wade should remain the law of the land. Clearly sending a signal to anyone who is paying attention he stated:
All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions. Indeed, in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents.(Citations omitted). Historically, moreover, some of the Court’s most notable and consequential decisions have entailed overruling precedent. (Citing a long list of cases) The lengthy and extraordinary list of landmark cases that overruled precedent includes the single most important and greatest decision in this Court’s history, Brown v. Board of Education, which repudiated the separate but equal doctrine of Plessy v. Ferguson, 163 U. S. 537 (1896). As those many examples demonstrate, the doctrine of stare decisis does not dictate, and no one seriously maintains, that the Court should never overrule erroneous precedent. As the Court has often stated and repeats today, stare decisis is not an “inexorable command.”
As if that were not enough of a warning bell that he intends to overturn Roe v. Wade, among the long list of precedents that he put forth to support the above proposition, he expands on only one, adding a footnote to his citation of Southeaster Pa. v. Casey, a 1992 abortion case:
In Casey, the Court reaffirmed what it described as the “central holding” of Roe v. Wade, 410 U. S. 113 (1973); the Court expressly rejected Roe’s trimester framework; and the Court expressly overruled two other important abortion precedents, Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986).
Get it – stare decisis is of limited value in abortion cases.
D: Thomas concurrence: Not be outdone, Justice Thomas also wrote his own opinion, so that he could re-state his argument that the Fourteenth Amendment’s Due Process Clause does not make rights guaranteed under Federal Law applicable to the States. He agreed wholeheartedly that the Sixth Amendment guarantees a right to a unanimous jury in Federal cases. And he agreed that the Fourteenth Amendment made that applicable to the States but not because of the Due Process Clause of the Fourteenth Amendment but because of its Privileges or Immunities Clause. The Privileges or Immunities Clause provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
This argument has been repeated endlessly by Thomas: that the Due Process clause only guarantees “process” and cannot guarantee or define substantive rights themselves. Calling it a “legal fiction” it is why he says the Court has consistently made mistakes under this clause, especially, he cites, in the cases of Dred Scott and Obergefell v. Hughes (the gay rights case). He rejects Apodaca because it too relied on Due Process analysis. It is not a subtle difference or some esoteric legal argument. Like Kavanaugh, Thomas is trying to take this case past its four corners. Applying laws to the States under the P or I clause means that only clearly established and previously defined rights can be made applicable to the States and that only laws related to process are made applicable to the States via the Due Process clause. That would also mean that Roe v. Wade was erroneously decided. In Roe, the Supreme Court issued a 7–2 decision holding that the Due Process Clause provides a “right to privacy” – therefore applicable to the States -that protects a pregnant woman’s right to choose whether to have an abortion. Since there was no Federal right to abortion, the P & I clause would not give that same right to women in the individual States.
E: Alito dissent, joined by Roberts and Kagan: Alito starts out by saying that stare decisis takes a rough hit in the case. He states that Oregon and Louisiana have strongly relied on Apodaca and that overturning it places a tremendous burden on them to have to retry cases.
He points out that while race was likely the basis for these laws when initially enacted, the States have re-affirmed them as late as the 1970s where no one argued that race was the basis; rather it was in the interest of judicial economy and to reduce the number of hung juries, valid State concerns. He also notes that many Bar Associations and even the British Parliament have discussed the merits of non-unanimous verdicts in criminal cases. He states, “If at some future time another State wanted to allow non-unanimous verdicts, today’s decision would rule that out—even if all that State’s lawmakers were angels.”
On the issue of Apodaca, and the majority decision arguing that it may not even be actual precedent, Alito retorts “Really?” He goes through the countless times SCOTUS cited Apodaca; the many times SCOTUS has denied a writ of certiorari to folks appealing non-unanimous verdicts; and also importantly, the States’ long history of reliance on Apodaca. He mocks that the majority labels Apodaca as “fractured” while the majority opinion itself was comprised of four separate opinions. He notes that while he may have disagreed with the Court’s result in Apodaca, that would not be a reason to overturn it. He even says Justice Powell’s “dual-track” theory is not as isolated as the majority suggested noting that the Court has upheld States using a preliminary hearing in lieu of a grand jury presentation even though the Constitution contains a Grand Jury Clause.
But is the States’ reliance that worried Alito the most: “For 48 years, Louisiana and Oregon, trusting that Apodaca is good law, have conducted thousands and thousands of trials under rules allowing non-unanimous verdicts. Now, those States face a potential tsunami of litigation on the jury unanimity issue.” He argues that that tsunami will become a deluge if you include the convicted defendants presently incarcerated even if they got convicted by a unanimous jury because their jury got instructions on non-unanimity.
He doesn’t stop there. In the next section – which Justice Kagan specifically noted she did NOT agree with – he notes that in recent cases that he voted to ignore stare decisis, notably Abood and Janus about forced payment of union dues, there was not the kind of reliance we see here. and because of the States’ significant reliance on Apodaca and the costs to the States to have to retry all those cases potentially, Apodaca should have been upheld.
What reliance is there on Roe v. Wade? None that would place a financial burden on the States. Women who have already received an abortion won’t be affected, and if the court sets a six or nine month delay in its decision going into effect, no woman would have relied on it prior to its being overturned. That’s why Kagan begged off signing not this part of the Alito opinion – because of the great weight it placed on reliance as the key factor in determining whether to follow stare decisis.
Conclusion: This case no doubt gives great relief to those accused of a crime and those convicted under Oregon and Louisiana’s non-unanimous jury verdict laws. Its the right step in criminal justice reform.
But the decision is harbinger of serious things to come in the future of Roe v. Wade. If Kavanaugh, Thomas and Alito’s opinions tell us anything, it is that Roe is in real danger and Justice Powell’s outlier view of a dual track society will become true – some States will legalize abortion and others will outlaw it.
Elections have consequences.
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