Wednesday Writs 4/22: Ramos v. Louisiana
This week’s Writs are a departure from the norm, in that I am going to devote the space to an overview of a literal case of the week, an opinion released just this past Monday that I believe is very important. We will return to your regularly schedule Writs next time.
Most people are under the impression that, before one can be convicted of a crime in the United States, all 12 jurors must unanimously believe beyond a reasonable doubt that the defendant is guilty. And that’s mostly true 1— for 48 out of 50 states. But in Oregon and Louisiana, that has not been the case; in those states, a person can be convicted of a felony and imprisoned on a verdict of 10-2 (except for 1st degree murder, which required unanimity.) You may know that if you are a regular reader of Wednesday Writs; it was discussed last year around this time when Apodaca v Oregon was featured as case of the week. Apodaca was a 1972 Supreme Court opinion which upheld Oregon’s unusual allowance of non-unanimous verdicts. It was noted in Writs at the time that the Apodaca holding was in question, as the Court was poised to take the issue up again in a case out of Louisiana.
Evangelisto Ramos was convicted in 2016 in Louisiana of 2nd degree murder by a verdict of 10-2 and was sentenced to life in prison without parole. Subsequently in 2017, the state’s constitution was amended to require unanimous verdicts- but it was not applied retroactively. Ramos filed an appeal, arguing that the verdict against him should be overturned for non-unanimity.
This week, the Court delivered its decision in Ramos v. Louisiana, in what must be among the most fractured opinions in SCOTUS history. Let me try to break that down:
Justice Gorsuch wrote the majority opinion, broken into many parts, not all of which were agreed upon by all the other justices.
In the opening, Gorsuch began by explaining the origin of non-unanimous verdicts in Louisiana, which had their roots in Jim Crow laws. The first mention of adopting the practice came at a state constitutional convention at which the express purpose was to “establish the supremacy of the white race.” Out of this same convention came poll taxes, property ownership requirements and literacy tests. Gorsuch cited historical sources which show that the “10-2” figures were chosen with an eye toward racial demographics, creating a facially neutral provision that nevertheless would have a practical effect of minimizing the input of black jurors. With this underpinning, the Court tackled the question of whether the constitutional right to a jury trial requires a unanimous verdict.
Part I – Joined by Ginsburg, Breyer, Sotomayor, and Kavanaugh: Here, Gorsuch first acknowledges that while the 6th Amendment (imparted to states via the 14th) guarantees an impartial trial, it does not define what that looks like. However, the opinion goes on, anywhere one might look to glean a definition of what an “impartial jury trial” was at the time of drafting, a finding that unanimity is a requirement is “unmistakable.” Even 14th century England required a unanimous verdict, writes Gorsuch quoting Blackstone. By the time the 6th Amendment was drafted then ratified, unanimity was the accepted standard in all states then existing. Legal scholars writing treatises in the 1800s took for granted that unanimous verdicts were constitutionally required, so ingrained was the concept. Gorsuch also noted that for 120 years following the ratification of the 6th Amendment, the US Supreme Court mentioned unanimous verdicts in its opinions at least 13 times. Finally, Gorsuch stated that because the Court has previously held that unanimous verdicts are required in federal criminal trials, that same requirement is applicable to the states via the 14th Amendment.
Part II-A – Joined by Ginsburg, Breyer, Sotomayor, and Kavanaugh: Gorsuch here examines why, if the rule is so sacrosanct in American jurisprudence, Oregon and Louisiana have been allowed to deviate for so long. He blames Apodaca here, describing the decision as “a badly fractured set of opinions” (sort of like this case, no?) Four justices in that case would have struck down the practice of non-unanimous verdicts; four others found that the “cost” of unanimous verdict outweighed its benefits to society. The ninth justice, Justice Powell, took a position that was “neither here nor there”, recognizing the long history of unanimous verdicts but nevertheless finding that the 14th Amendment did not impart to the states every right guaranteed in federal court – despite the Court’s previous finding to the contrary. Powell cast the fifth vote to uphold the non-unanimous verdict, “based only on a view of the Fourteenth Amendment that he knew was (and remains) foreclosed by precedent.”
Part II-B Joined by Ginsburg, Breyer, Sotomayor: In this section, Gorsuch writes that in the years following Apodoca, the Court was careful not to endorse or adopt Justice Powell’s “dual track” theory of incorporation of the 6th Amendment to the states. He explains that Louisiana’s suggestion here is that the issue be resolved by a declaration that the requirement of unanimity applies to neither federal nor state defendants- basically, to hold that the 6th Amendment doesn’t mean what it has always been interpreted to mean. (It is unclear why Kavanaugh does not join this part; his concurrence does not appear to be in conflict.)
Part III – Joined by Ginsburg, Breyer, Sotomayor, and Kavanaugh: In this section, Gorsuch dispenses with Louisiana’s suggestion that the right of unanimous verdict be stripped across both state and federal criminal courts. The suggestion indicates a concession by Louisiana that the Sixth Amendment can not mean something different for federal defendants than for state, but the state argues that because early drafts of the 6th Amendment expressly provided for unanimous verdicts, its removal from the final version must have been intentional. But Gorsuch posits that the language was removed because it was “surplusage”, because the concept was already contained within the common law meaning of the phrase “impartial jury” and was thus unnecessary. Besides, Gorsuch points out, earlier drafts also contained language regarding the right to challenge jurors during the selection process, which was also removed. To adopt Louisiana’s argument would strip the 6th Amendment of long-established and uncontested interpretation: “Taking the State’s argument from drafting history to its logical conclusion would thus leave the right to a “trial by jury” devoid of meaning. A right mentioned twice in the Constitution would be reduced to an empty promise. That can’t be right.”
He then points to the Apodaca decision again, as a cautionary tale against “breezy cost benefit analysis”, carelessly deciding which ingrained common-law principles were important enough to be deemed implied in the 6th Amendment, and which were not, noting that the Apodaca plurality paid no mind to the racial underpinnings of the 10-2 schematic. They instead suggested that allowing less than unanimous verdicts could serve to reduce hung juries – but, Gorsuch points out, this is not necessarily a benefit but rather a cost to the integrity of the process. Gorsuch writes: “As judges, it is not our role to reassess whether the right to a unanimous jury is “important enough” to retain. With humility, we must accept that this right may serve purposes evading our current notice. We are entrusted to preserve and protect that liberty, not balance it away aided by no more than social statistics.”
Part IV-A – Joined by Ginsburg and Breyer: Perhaps I should go out of order here and brief Alito’s dissent, since this section serves as a rebuttal to the same (I won’t, though, so feel free to skip ahead and come back if you feel it necessary.) Gorsuch criticizes Alito’s dissent as an unwise adherence to stare decisis, always a convenient excuse not to disturb bad precedent when one has no better objection to the alternative. Further, Gorsuch takes the position that Apodaca is not really a controlling precedent at all.
As Gorsuch points out, Justice Powell accepted the premise that the 6th Amendment requires a unanimous verdict in federal court; his concurrence with the plurality was based only on his belief in the “dual track” theory of incorporation which did not require all aspects of the 6th Amendment rights afforded in federal courts to apply to the states. With the latter having been well-established as wrong at this point in jurisprudential history, Powell’s concurrence falls and with it, the ruling in favor of the government in Apodaca. Otherwise, notes Gorsuch, “we would have to embrace a new and dubious proposition: that a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected.”
In other words, the Court faced a situation in which the case most on point with the one they are deciding was decided by a swing vote, whose rationale has since (and before) been rejected. Without that rationale, the swing vote falls the other way, and the case has the opposite outcome. Gorsuch and the majority opt not to apply stare decisis to a holding which is based on a premise that is established bad law.
Part IV-B-1 – Joined by Ginsburg, Bryer, Sotomayor, and Kavanaugh: In a further rebuttal of the dissent, the majority here says that, even if it is accepted that Justice Powell’s rationale is the controlling precedent, “stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.” In analyzing whether a previous decision should be disturbed, the Court must consider “the
quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.” Here, the majority believes stare decisis is defeated on every factor. Among other rationale, Gorsuch rejected the state’s argument that ruling in favor of Ramos would unduly burden the state by upsetting hundreds of 10-2 convictions currently in the appeal pipeline and necessitate costly retrials. In response to which, Gorsuch shrugged.
Part IV-B-2 – Joined by Ginsburg, Breyer, Sotomayor – In addition to its concern about pending appeals, the state argued that a ruling against them would disturb final convictions in which appeals have been exhausted. The Court discusses the case of Teague v. Layne, which held that newly recognized rules of criminal procedure do not apply in collateral review (reviews occurring after direct appeals are exhausted.) But the Court notes that Teague left open an exception for rules which implicate matters of fundamental unfairness or “watershed rules” – a standard no new rule has met as of yet. Gorsuch punts, rather than shrugs, leaving the question of retroactive effect to another day and another case2.
Part V – Joined by Ginsburg, Breyer, Sotomayor – In the conclusory section of the majority decision, wrapping up a beautiful opinion that puts me in danger of professing my love for Gorsuch and suffering the confiscation of my lib card, the Justice sums up:
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.
Sotomayor writing separately, concurring in all but Part IV-A: Justice Sotomayor, in her concurrence, writes mostly to offer a more forceful case for overturning Apodaca, which she says is not only warranted but compelled. Where Gorsuch was defensive if not almost apologetic in explaining his rejection of stare decisis in this case, Sotomayor was unambiguously fine with doing so. She is more critical of the dissent’s adherence to precedent, pointing out that, even though stare decisis finds its greatest use not in matters of constitutional criminal law but in matters of property and contract, the Court has nevertheless disregarded precedent in two such cases recently, the Janus decision and South Dakota v. Wayfair. She also wrote to emphasize more strongly the Jim Crow roots of Louisiana’s 10-2 verdict rule.
Kavanaugh writing separately concurring in part: Justice Kavanaugh’s concurrence likewise discusses his views of stare decisis and his approach to determining whether precedent should stand. Kavanaugh feels the Court has not set forth a sufficient framework for determining when deviation from prior rulings is appropriate. 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? He goes on to explain that, in Apodoca, he answered each question in Ramos’s favor.
Kavanaugh also discusses, and rejects, the state’s concerns over disturbed final convictions. But he goes a step further than the majority opinion, finding that the question of retroactive applicability can be solved at present and need not wait for another day. He would hold that the holding of Ramos was not applicable to collateral appeals of final conviction.
Thomas writing separately and alone to concur in judgment (on different grounds): Justice Thomas joins only in the overall result of overturning Ramos’s conviction. He does not find that the requirement of unanimous verdicts is applicable to the states under due process but rather the privileges and immunities clause of the 14th Amendment. This is a familiar argument to anyone who follows Justice Thomas’s opinions; he believes that all fundamental rights that are applicable to states are bestowed via privileges and immunities rather than due process. The distinction is too complex to explain here, some 2200 words into this “summary” of Ramos, but you can get some idea of his thoughts on the matter here. While Thomas reaches the same conclusion as the majority, he refuses to adopt an interpretation that, in his view, is based on due process instead of the privileges and immunities clause, because “close enough is for horseshoes and hand grenades, not constitutional interpretation.”
Thomas also found it sufficient to rest the Court’s decision on the fact that the 6th Amendment has been interpreted to include a right to a unanimous jury since 1898, without delving into and assigning meaning to the phrase “impartial jury trial”, a nuance that is fitting of Thomas’s staunch belief in textualism, in which the bare words of the constitution are to be interpreted without any regard to outside context such as legislative history or committee reports. But this does not mean he pays no mind to the accepted meaning of the language; in fact, he looks to just that in his calculation of what the “plain meaning” was at the time of drafting.
For the same reasons, he disregards stare decisis as an overriding concern, believing it to be inferior to the text. In other words, he has no problem overruling past decisions if they deviate from a textualist interpretation, which he finds paramount.
Dissent by Alito, joined in full by Roberts; joined in all except Part III-D by Kagan: Justice Alito starts out by clearly lamenting the majority’s rejection of stare decisis, writing that Apodaca has been settled law for 48 years, has been relied upon by Oregon and Louisiana, and that overturning it ” imposes a potentially crushing burden on the courts and criminal justice systems of those States.” He is also offended on Oregon’s and Louisiana’s behalf by the insinuation that their judicial systems may rest at least in part on racist foundations. He likens the Court’s finding to “ad hominem” attacks used to discredit one’s opponent in modern debate, a practice he finds distasteful. And even if the roots were in racism, he says, so what? That was then, and since then, the state’s have reaffirmed their rule in subsequent constitutional revisions, and he sees no evidence that they did so for discriminatory reasons.
Besides, Alito points out, Louisiana has already abolished the practice of non-unanimous verdicts and Oregon seems poised to do the same, so why issue a ruling that will undoubtedly cause upheaval in their courts? In the majority, Gorsuch points out that not overruling opens the door to other states relaxing their requirements of unanimity, so Alito’s argument that the issue is now moot is weak.
Moving on to the issue of respecting precedent, he describes his reaction to the idea that Apodaca was not actually precedent (Part IV-A) in one word: “Really?” He points out the many times that the case has been cited in the years since it was decided and scoffs at the idea that all of those lawyers and justices have been delusional for going on fifty years, or that the states should have known better than to trust the Court’s decision. But he also states that Justice Powell’s rationale, the “dual track” theory of incorporation, is not binding precedent; only the overall holding of Apodaca, that non-unanimous verdicts in state courts are constitutional, is binding.
In Alito’s view, because of the “massive” reliance on Apodaca, stare decisis overwhelmingly requires adherence to its holding. Nor is he satisfied that the ramifications of the Court’s decision in Ramos will be limited to cases still on direct appeal, but anticipates a flood of litigation from those whose convictions are already final.
Alito concludes by discussing other recent cases in which the doctrine of stare decisis was applied and rulings overturned, contrasting each with Ramos. Kagan did not join with Alito in this part, likely because she was a dissenter in at least two of the cases he cites, including Janus and Knick v. Township of Scott.
Phew. Nearly 3000 words, and I am done. I hope you will forgive the lack of links this week, but I am wrung out.