Wednesday Writs 4/22: Ramos v. Louisiana

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

Related Post Roulette

27 Responses

  1. Fish says:

    Excellent piece, Em. Thanks for taking the time to write it. And please forgive my ignorance, but…what was the final vote? I assume from the writing that the court decided in favor of Ramos. (And I’m a pretty big fan of Gorsuch, too, and not just because he’s a fellow Coloradan!)Report

  2. Jaybird says:

    Stare Decisis sucks.

    “He proposes three factors: 1)Is the precedent not just wrong, but egregiously wrong? 2) Has the prior decision caused significant negative jurisprudential or real-world consequences? and 3) Would overruling the prior decision unduly upset reliance interests?”

    Not *JUST* wrong? Is not being “wrong” enough?

    2, I guess, is appropriate. I mean, if the old decision doesn’t freaking matter, it doesn’t matter.

    As for 3? “unduly upset reliance interests”? WHAT THE FREAKING HELL? I imagine that doing the right thing will quite regularly unduly upset reliance interests.

    Our desire to not unduly upset reliance interests is what got us here in the first place.Report

    • Em Carpenter in reply to Jaybird says:

      I assume you know, but in case anyone doesn’t, reliance interest is important because people, businesses, and governments make decisions every day based on what they believe to be established law. I agree with a conservative approach to upending longstanding precedent that has wide-spread implications. But there are clearly circumstances in which “the consequences of being right”, as Gorsuch puts it, are of little importance in the face of egregious injustice.Report

    • Road Scholar in reply to Jaybird says:

      Not *JUST* wrong? Is not being “wrong” enough?

      I think the problem with your question here is in believing right and wrong to be distinct binary categories, particularly in the realm of law. There’s a reason we have a supreme court composed of nine justices who argue and vote rather than just one logician or even an AI. For something to get to SCOTUS there normally needs to be at least halfway decent arguments for each side. Ultimately the standard isn’t really right or wrong so much as more or less persuasive.Report

  3. Doctor Jay says:

    Whew. Very interesting. A good example of a non-ideologically split decision in the Court. It’s good to remember that still happens.Report

  4. CJColucci says:

    None of the opinions seemed especially persuasive to me, even though I have long had problems with Apodaca and the Williams case, concerning the permissible size of criminal juries. While it seems to me unlikely that the framers and ratifiers of the 6th amendment intended to constitutionalize all the then-existing features of the common-law jury trial, like size and voting, the 6th amendment itself contains no hint of a principled way to decide which features could be modified and, if they can be modified, by how much. Is 10-2 OK and 7-5 not? Is a 6-person jury OK and a 4-person jury not? In the absence of such an identifiable principle, as I saw it there were two alternatives: stick with the way it was done in 1788 or anything goes. Apodaca and Williams did neither, leading to incoherence. That said, nobody is seriously proposing 4-person juries or 7-5 votes, no one can seriously argue, our common-law practice aside, that 6-person juries and 10-2 votes are, as an original matter, unjust, and we have lived with the present regime for almost 50 years, without visible adverse consequences. Under the circumstances, this is not much of a case for upsetting settled law, even if some of us would have decided differently in 1972.Report

    • Em Carpenter in reply to CJColucci says:

      One thing that has occurred to me is that if 2 jurors (assumed to be reasonable via voir dire) find reasonable doubt, then doesn’t it follow that reasonable doubt exists?Report

      • CJColucci in reply to Em Carpenter says:

        A good reason to have stuck with the way things had always been done, especially in the absence of a limiting principle to prevent other, even more problematic, voting regimes.Report

      • Stillwater in reply to Em Carpenter says:

        Is there a formal definition of what constitutes a reasonable person for these purposes? Seems to me that in my own lifetime what constitutes “reasonable” has gone through quite a few changes.Report

        • JS in reply to Stillwater says:

          “Is there a formal definition of what constitutes a reasonable person for these purposes?”

          I think it varies some. For instance Texas actually forbids — or did last I served on a jury, because an exasperated juror outright asked why they wouldn’t define it beyond very vague statements — either judges or lawyers to define reasonable doubt beyond vague explanations, because anything too specific risks biasing the jury. Whether a doubt is “reasonable”, at least in Texas under their current rules, is a finding that is solely up to the jury.

          It was frustrating, as a juror, watch other jurors struggle with it and the judge and lawyers being unable to be helpful. But I also sort of agree with the reasoning behind not defining it to the jury, as frustrating as it was.

          The judge basically laid out the various burdens of proof, and pointed out that “beyond a reasonable doubt” was the highest, but didn’t mean “beyond all possible doubt”. And ended with “As jurors, it is up to you to determine whether doubt exists, and if that doubt is reasonable.”Report

      • One thing that has occurred to me is that if 2 jurors (assumed to be reasonable via voir dire) find reasonable doubt, then doesn’t it follow that reasonable doubt exists?

        Would that logic lead to all (or most, or many) “hung” juries being actually acquittals? I’m not sure that’s a bad thing, or even a reductio, but I’m curious on your or others’ thoughts.Report

  5. Kolohe says:

    Great write up, EmReport

  6. North says:

    An interesting dynamic about this I’ve seen written about is that Kagan seems to be joining Alito and Roberts primarily so a liberal is on record wanting to uphold Stare Decisis even then the outcome is a more conservative result. That’ll be important if the court takes a run at other precedents like Roe.Report

    • Stillwater in reply to North says:

      Does she think conservative justices will do paybacks? Not sure I see the reasoning here.Report

      • North in reply to Stillwater says:

        The article I read says it helps for persuading Roberts argument wise (remember, he’s probably the tipping vote on this matter) and also positions the liberals well in general for public perception.Report

        • Stillwater in reply to North says:

          Doesn’t seem wise to me, or ethical. I guess it just shows the leverage the conservative 5 have over the liberal 4 and how that leverage is being used.Report

    • Burt Likko in reply to North says:

      If you aren’t listening to the Strict Scrutiny podcast, you missed the hosts’ conclusion that the conservative majority appears to have determined that “stare decisis is for suckers” and their worry about what it means for the Roe case in particular.Report

      • Em Carpenter in reply to Burt Likko says:

        I suspect Alito’s allegiance to precedent will suddenly dissolve when Roe is at stake. Or perhaps he will shock the world with a swing vote to the libs? (I’ll eat my hat, and yours too.)Report

  7. Burt Likko says:


    I am informed that approximately 1,700 prisoners in Oregon were convicted upon non-unanimous juries. Their cases must now be addressed in some meaningful way. No clue what that might be.

    We could decide to grant them clemency. I think that’s… improbable, without further instruction from SCOTUS that this is what’s to be done.

    It seems they should get new trials with the requirement of jury unanimity. But 1,700 recycled criminal trials is a GIGANTIC burden on a court system already struggling with a backlog of virtually ALL work since the closure of the courts due to the pandemic. And with that many trials in that many cases, a great deal of evidence and witness memory will be gone. Then there’s whether a belated retrial implicates other rights in favor of speedy trials and against being placed in double jeopardy.

    And whether 1,700 additional criminal trials, ALL of which would proceed, would prevent the prosecution of pending matters.

    Or we could decide (as the Ramos case did not) that the requirement for unanimous verdicts is prospective only. Which stinks. After all, Gorsuch tells us that the Sixth Amendment ALWAYS required unanimous juries, so it’s not right that the “reliance interest” alone allow people with verdicts that were unconstitutional in violation of their due process rights to remain deprived of liberty. (This, by the way, is one reason why Thomas’ refusal to rely on the due process clause matters.)

    Are there more alternative outcomes?Report

    • Em Carpenter in reply to Burt Likko says:

      Well, as you probably read, the opinion makes it applicable to cases currently on direct appeal but leaves open the question of whether the holding applies to habeas corpus/post-conviction relief (with Kavanaugh opining that it definitely does not.) So I think until that particular question makes its way back up, those with final convictions who have exhausted direct appeals are SOL.Report

  1. July 1, 2020

    […] “no aid” provision. Alito takes the opportunity to refer to his dissent in Ramos v Louisiana , in which he lamented the majority’s rejection of precedent that allowed non-unanimous jury […]Report