What Ramos v. Louisiana Says About Its Own Retroactivity

Last April 20, the U.S. Supreme Court decided in Ramos v. Louisiana that juries must be unanimous in state criminal trials, contrary to the result reached by a splintered Court in 1972 in a pair of cases, Apodaca v. Oregon, 406 U.S. 404 and Johnson v. Louisiana, 406 U.S. 356. Those two states continued to allow convictions by juries split 10-2 or 11-1 in reliance on those decisions for many years, although the voters of Louisiana changed to a unanimity requirement for future trials in the 2018 election.

What about cases tried before Ramos ? On the day of the decision, this seemed like an easy question. Under well-established Supreme Court precedent, those cases of nonunanimous verdicts still pending their initial appeal would be reversed, but that would not be a ground for a collateral attack (i.e., habeas corpus or an equivalent procedure) for old cases that were tried and became final in accordance with what had been the law at the time. Indeed, the several opinions in Ramos itself either said or clearly implied as much.

Justice Kavanaugh’s opinion says so the most clearly. He cast the fifth vote for the proposition that a nonunanimous jury violates the requirements of the Sixth Amendment as incorporated in the Fourteenth Amendment’s Due Process Clause. One of the issues the Supreme Court must address when changing the law is the extent of reliance on the prior law, and Justice Kavanaugh did so with reference to retroactivity (pp. 16-17, emphasis added):

Under the Court’s precedents, new constitutional rules apply on direct review, but generally do not apply retroactively on habeas corpus review. See Teague v. Lane, 489 U. S. 288, 311 (1989) (plurality opinion); Griffith v. Kentucky, 479 U. S. 314, 328 (1987). Teague recognizes only two exceptions to that general habeas non-retroactivity principle: “if (1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Whorton v. Bockting, 549 U. S. 406, 416 (2007) (internal quotation marks omitted). The new rule announced today—namely, that state criminal juries must be unanimous—does not fall within either of those two narrow Teague exceptions and therefore, as a matter of federal law, should not apply retroactively on habeas corpus review.

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The second Teague exception does not apply because today’s new rule, while undoubtedly important, is not a “watershed” procedural rule. This Court has flatly stated that “it is unlikely that any such rules” have “yet to emerge.” Whorton, 549 U. S., at 417 (internal quotation marks omitted).

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So assuming that the Court faithfully applies Teague, today’s decision will not apply retroactively on federal habeas corpus review and will not disturb convictions that are final.

Indeed, there is hardly any question about it. The long line of precedents under Teague make the decision so clear that the only ways that Ramos could be made retroactive are if the Court (1) makes a major modification of this landmark precedent, or (2) dishonestly evades it, as it did in Montgomery v. Louisiana. (See this post.)

Justice Gorsuch’s opinion is a plurality opinion on the precedent point, not the Opinion of Court. It follows a similar line at first, but then has an odd and legally incorrect hedge. Justice Gorsuch had taken the position in Part IV-A of his opinion that Apodaca was not a precedent, but only two other justices agreed. So as an alternative he set out to explain, in the traditional mode of analysis, why overruling the precedent was appropriate. He also addressed the reliance interest of the states in addressing the dissent’s argument that the states have a strong interest “in the security of their final criminal judgments.” The plurality opinion dismisses this reason for sticking with precedent (pp. 23-24, emphasis added).

In light of our decision today, the dissent worries that defendants whose appeals are already complete might seek to challenge their nonunanimous convictions through collateral (i.e., habeas) review.

But again the worries outstrip the facts. Under Teague v. Lane, newly recognized rules of criminal procedure do not normally apply in collateral review. True, Teague left open the possibility of an exception for “watershed rules” “implicat[ing] the fundamental fairness [and accuracy] of the trial.” But, as this language suggests, Teague’s test is a demanding one, so much so that this Court has yet to announce a new rule of criminal procedure capable of meeting it. And the test is demanding by design, expressly calibrated to address the reliance interests States have in the finality of their criminal judgments.

In other words the dissent’s fear of massive challenges to long final convictions is groundless because Teague is an effective bar against them. That is correct, as Justice Kavanaugh explained, and it is correct for a court considering overruling a precedent to consider the extent of retroactivity in weighing the reliance interests in the stare decisis (precedent) discussion. But then the plurality seems to contradict itself and misstates the Teague rule in the process (p. 24):

Nor is the Teague question even before us. Whether the right to jury unanimity applies to cases on collateral review is a question for a future case where the parties will have a chance to brief the issue and we will benefit from their adversarial presentation. That litigation is sure to come, and will rightly take into account the States’ interest in the finality of their criminal convictions. In this way, Teague frees us to say what we know to be true about the rights of the accused under our Constitution today, while leaving questions about the reliance interest States possess in their final judgments for later proceedings crafted to account for them. It would hardly make sense to ignore that two-step process and count the State’s reliance interests in final judgments both here and again there. Certainly the dissent cites no authority for such double counting.

No, there is no double counting, but this passage places the single count in the wrong place. In the earlier regime of retroactivity analysis that was discarded in Griffith and Teague, the extent of reliance was a factor. See Stovall v. Denno, 388 U.S. 293, 297 (1967). But that regime is long gone.

Justice Gorsuch’s statement that the Teague proceedings are crafted to account for the reliance interest is simply wrong. Under Teague, the court asks only whether the rule is new, if so whether it is substantive or procedural, and if procedural whether it is a “bedrock” rule of a magnitude comparable to Gideon v. Wainwright, which no rule created after 1989 ever has been or is ever likely to be. The extent of reliance by the states plays no part in the analysis.  See Wharton, 549 U. S., at 416.

The single count of reliance comes under whether to overrule the precedent in the first place, and the question of whether the new rule will apply retroactively in collateral attacks on final judgments is properly part of that calculus. The previous paragraph of the Ramos plurality opinion got it right, and between that opinion and Justice Kavanaugh’s, a majority of the Court said that the reliance interest of the states in the integrity of the final judgments did not weigh in the balance, which can only be because those judgments are protected by Teague.

If the Court were to make Ramos retroactive by wakening and widening the comatose second exception to Teague, that would amount to a bait-and-switch subterfuge. Let us hope the Court does not stoop to that.

I will address the basics of the Teague rule and the issues raised in the oral argument in separate posts.