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The Supreme Court’s War Over Jury Trials Could Change Everything

Within a plainly just ruling on criminal procedures, conservatives have built a sandbox for tomorrow’s battles over gay rights and abortion.

Chip Somodevilla/Getty Images

The Supreme Court ruled on Monday that the Sixth Amendment requires juries to reach unanimous verdicts when they find defendants guilty of serious crimes. This may come as a surprise to many Americans, who likely assumed after watching films like Twelve Angry Men that there was no alternative. Monday’s ruling takes aim at less well-known practices in Louisiana and Oregon, where defendants have been found guilty even if one or two jurors harbor doubts.

To reach the decision, the court overturned Apodaca v. Oregon, a 1972 Supreme Court decision that had allowed these states’ systems. “There can be no question either that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally,” Justice Neil Gorsuch wrote for the majority. “This Court has long explained that the Sixth Amendment right to a jury trial is ‘fundamental to the American scheme of justice’ and incorporated against the States under the Fourteenth Amendment.”

Indeed, even the three dissenting justices didn’t seem to disagree about the Sixth Amendment interpretation. “No Member of the Court contends that the result in Apodaca is correct,” Justice Brett Kavanaugh wrote in a concurring opinion. “But the Members of the Court vehemently disagree about whether to overrule Apodaca.” So instead of lengthy discussions on James Madison and Lord Blackstone, the justices instead outlined how and when they should rewrite American constitutional law. With a resurgent conservative bloc now on the court, that question is more weighty than ever.

The case itself, Ramos v. Louisiana, revolved around Evangelisto Ramos, a Louisiana man who was convicted of fatally stabbing a woman he knew in 2015. Two jurors voted against his conviction after the trial because prosecutors had not, in their estimation, proved it beyond a reasonable doubt. Prosecutors furnished no murder weapon, no eyewitnesses, and only a circumstantial case against Ramos himself from the physical evidence at the crime scene. Because Louisiana allowed non-unanimous jury verdicts at the time, Ramos was still convicted and eventually sentenced to a life sentence without the possibility of parole.

Unanimous jury verdicts are the norm in the Anglo-American legal tradition, and any deviations from them are a bewildering exception. So why did these two states choose a different path? Louisiana first incorporated the practice into its state constitution at a 1898 constitutional convention. “According to one committee chairman, the avowed purpose of that convention was to ‘establish the supremacy of the white race,’” Gorsuch wrote, “and the resulting document included many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted white residents from the most onerous of these requirements.” Gorsuch noted that Oregon’s provision could be “similarly traced” to the rise of the Ku Klux Klan and fears of immigrant influence in the criminal-justice process in the 1920s and 1930s.

None of this history is particularly controversial or groundbreaking; Gorsuch noted that even local courts in both states had acknowledged it. But its mere acknowledgement still drew criticism from Justice Samuel Alito. “Some years ago the British Parliament enacted a law allowing non-unanimous verdicts,” he wrote in a dissent joined by Chief Justice John Roberts and Justice Elena Kagan. “Was Parliament under the sway of the Klan? The Constitution of Puerto Rico permits non-unanimous verdicts. Were the framers of that Constitution racists? Non-unanimous verdicts were once advocated by the American Law Institute and the American Bar Association. Was their aim to promote white supremacy? And how about the prominent scholars who have taken the same position? Racists all? Of course not. So all the talk about the Klan, etc., is entirely out of place.”

The majority also thoroughly documented how non-unanimous verdicts were incompatible with the Sixth Amendment. Gorsuch cited a wealth of commentary from jurists before the Bill of Rights’ drafting and shortly afterward, many of whom saw the requirement for unanimity as so plainly obvious that it need not be declared in the amendment’s actual text. The challenge for the justices on Monday wasn’t in interpreting the Sixth Amendment: its meaning and history was already clear. The problem lay with Apodaca, which had already inscribed a flawed reading of that amendment into constitutional law.

For Alito and the other dissenters, the status quo is preferable. They took refuge in the doctrine of stare decisis, which binds courts to their earlier rulings except in rare circumstances. The justices have deliberated about the scope and limits of stare decisis at length in recent years, and for good reason: Anthony Kennedy’s retirement in 2018 produced a reliably conservative majority on the court that is poised to shape—and perhaps reshape—how the Constitution affects Americans for at least a generation. Many liberals fear, and many conservatives hope, that past rulings on abortion rights and LGBT rights could be on the chopping block.

Alito appeared to hint at these fears and hopes in his dissent. “The doctrine of stare decisis gets rough treatment in today’s decision,” he wrote. “Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn.”

Gorsuch, writing for the majority, focused on the unusual way in which Apodaca came about. In the 1972 ruling, four of the court’s justices concluded that non-unanimous verdicts violate the Sixth Amendment. Another four justices disagreed and voted to uphold the statutes in both states on functionalist grounds. Lewis Powell, one of the court’s centrists, broke the tie by concluding that “history and precedent” supported the unanimous-only interpretation of the Sixth Amendment, but that the amendment didn’t have to be fully incorporated against the states. Under the Supreme Court’s rules, the narrowest opinion in the majority—in this case, Powell’s opinion—is the precedent for future courts to follow.

Powell’s half-measure, however, ran counter to two separate lines of constitutional precedent. The court has consistently treated the Sixth Amendment as requiring unanimous verdicts in other contexts in opinions before and after Apodaca. And the decision’s “dual-track” approach to applying the Bill of Rights to the states through the Fourteenth Amendment ran counter to how the court treated other amendments by then in the same context. “In light of all this, calling Apodaca an outlier would be perhaps too suggestive of the possibility of company,” Gorsuch wrote.

Kavanaugh, who largely agreed with the majority’s conclusions, parted ways with them to outline his own test for setting stare decisis aside. First, the precedent in question must be “not just wrong, but grievously or egregiously wrong.” Second, it must have “caused significant negative jurisprudential or real-world consequences.” Finally, overturning the precedent must not “unduly upset reliance interests”—in other words, if generations of Americans have lived and worked under the precedent’s understanding, the cost of upending it should be weighed against the cost of letting it stand. It’s hard to imagine that Kavanaugh would write out such a framework without knowing that he would someday soon have to put, among other things, Roe v. Wade and Planned Parenthood v. Casey through it.

Only Justices Ruth Bader Ginsburg and Stephen Breyer joined Gorsuch’s opinion in full, including his discussions of stare decisis. Justice Clarence Thomas wrote a separate concurring opinion to revisit two familiar points he often makes: his adherence to stare decisis, which is practically non-existent, and his belief that the Bill of Rights should be applied to the states through a different clause in the Fourteenth Amendment than what the court currently uses. Justice Sonia Sotomayor, perhaps sensing the long-term risks of adopting Gorsuch’s standard in full, wrote separately to note that stare decisis carries slightly less weight in the criminal-justice context than elsewhere.

“This case, by contrast, threatens no broad upheaval of private economic rights,” she wrote. “Particularly when compared to the interests of private parties who have structured their affairs in reliance on our decisions, the States’ interests here in avoiding a modest number of retrials—emphasized at such length by the dissent—are much less weighty. They are certainly not new: Opinions that force changes in a State’s criminal procedure typically impose such costs.”

Alito, for his part, went to considerable lengths to distinguish his dissent in Ramos from his more lenient approach in other recent cases. He argued, for example, that his recent venture to overturn almost 50 years of labor law by blocking fair-share fees collected by public-sector unions did not raise serious reliance standards because union contracts are often re-negotiated. (Kagan, who wrote the main dissent in that case, pointedly refused to join this portion of his dissent.) At the same time, Alito raised concerns about the beleaguered prosecutors in Oregon and Louisiana who must now brace for hundreds of potential retrials.

But that did not persuade the six justices in the erstwhile majority. “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,” Gorsuch wrote. “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.” While that sweeping rhetoric works well when dismantling Jim Crow laws, it may also lead the court’s conservatives to even stormier seas.