Making an Easy Retroactivity Case Difficult: The Argument in Edwards v. Vannoy — Part I, Overruling Apodaca

On December 2, the U.S. Supreme Court held oral argument in Edwards v. Vannoy, No. 19-5807, on an easy question with an obvious answer. Is the Court’s decision last term in Ramos v. Louisiana, that unanimous juries are required in state criminal cases, retroactive to cases already final on direct appeal under the rule in Teague v. Lane? As noted in the Justice Kavanaugh’s opinion in Ramos itself, the answer is clearly “no.” See this post.

Yet from the argument the Court seems to have unexpected difficulty with this easy question. In a series of posts, I will go through some of the questions the Justices had at the argument and offer my answers.

Applying Teague to Ramos

First, the basics under the Teague rule. The rule is explained in this post. Here I will apply the rule to Ramos.

Under the pair of cases Griffith v. Kentucky, 479 U.S. 314 (1987) and Teague v. Lane, 489 U.S. 288 (1989): (1) any new constitutional rule for criminal cases announced by the Supreme Court is fully retroactive to all cases pending on direct review, i.e., the initial appeal based on the trial record and all higher court reviews of that appeal, and (2) rules of substantive law are also retroactive on the collateral reviews that typically follow the direct appeal, but (3) new rules of criminal procedure do not apply retroactively on collateral review to overturn final judgments, with a possible exception, never found yet, as explained in the prior post.

What about Ramos? A rule is “new” for the purposes of Teague unless that rule is so well-established or so obvious that it is not “susceptible to debate among reasonable minds.” Before Ramos, the contrary rule was universally thought to be the law. In Apodaca v. Oregon, 406 U.S. 404 (1972) and the companion case of Johnson v. Louisiana, 406 U.S. 356 (1972), the Supreme Court rejected constitutional attacks on statutes of those two states that allowed verdicts of less-than-unanimous 12-member juries in state court cases. Regardless of whether they agreed with the decision, this was understood to be the law by substantially all courts and leading commentators.

The possible exception to the general rule of nonretroactivity has not been crisply defined, but the Court has said many times that a new rule would have to have the “primacy and centrality” of the landmark 1963 decision in Gideon v. Wainwright to qualify. See, e.g., Beard v. Banks, 542 U.S. 406, 420 (2004).

Ramos prohibits a verdict of 10-2 for guilt in a criminal case and requires that case to go on until the first jury can agree or the case is retried to a second jury that does agree. The lone holdout juror for acquittal who brings the other eleven around made a Best Picture-nominated movie, but in the real world nearly all such cases end in a conviction one way or the other, experienced prosecutors tell us.

Is this rule of the same magnitude as the rule that prevented states from requiring indigent, often uneducated, sometimes illiterate laymen to go up against professional prosecutors in an adversary system of justice? Not even in the same ballpark. This is an easy case.

So let us get to the argument.

Fragmented Decisions and Precedent

“[T]here can be no dispute that a decision announces a new rule if it expressly overrules a prior decision ….” Graham v. Collins, 506 U.S. 461, 467 (1993). So the first question is whether Ramos did overrule a prior decision.

Transcript p. 22, ln. 3 (defense counsel’s argument):

JUSTICE GORSUCH: Good morning, counsel. I’d like to start with your first argument, that Ramos did not announce a new rule. I – I’m certainly sympathetic to that point of view. I believe the Court had, for well over 100 years, spoken about the unanimity requirement, as you know, but only a plurality agreed with me on that, and – and there were a couple of joiners who thought that Apodaca was a precedent of the Court. A single justice speaking for himself defined existing precedent was nonetheless itself a precedent that we had to abide. And, of course, the dissenters took that point of view.

How – how – how can we get to where you want us to go in that light? Do we account for the dissenters’ position? Should we discount the dissenters’ position? Even if we do discount that, what about the fact that the majority itself had different views?

My Answer:

Under the rule of Marks v. United States, 430 U.S. 188, 193 (1977), “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’ ” That rule is easy enough where the territory covered by one opinion is a proper subset of the territory covered by the other. In that case, a majority agrees on the rule for the subset, which includes the case at hand, and application to the other areas remains undecided. When two opinions come to the same result for the case at hand by different routes, neither of which can be said to be narrower than the other, the Marks rule fails to provide an answer.

A more general rule based on the same principle as Marks is to look for the aspects of the case that led a majority to the outcome, and the precedent governs cases which have those same aspects. Part IV-A of Ramos is the Opinion of the Court, i.e., joined by a majority, and it holds that even if Apodaca is a precedent it meets the criteria for overruling. That is enough to decide the case. A majority agrees that Apodaca is no longer controlling precedent, without agreeing on whether it was before, and that the true Sixth Amendment rule is contrary.

The Marks passage above looks only to the positions of “those Members who concurred in the judgment.” It does not count noses among concurring and dissenting justices alike. The Supreme Court is not a legislature. It votes on how to decide the case before it, and only by deciding cases does it have any power to create precedents binding on other courts. The precedent controls cases that are not distinguishable from the precedent-setting case, and deciding what cases are not distinguishable requires determining the case characteristics that caused the majority to decide as it did. Yes, we “discount” the dissenters.

For the long version, see the amicus curiae brief of the Criminal Justice Legal Foundation in Grutter v. Bollinger, 539 U.S. 306 (1993).

Ramos therefore sets no precedent on the question of whether Apodaca was a precedent, and the Court in this case can decide that question without feeling bound by Ramos.

Overruling Decisions Versus Overruling Precedents

p. 36, ln. 12 (in State’s argument):

CHIEF JUSTICE ROBERTS: General, you talk about Ramos‘s overruling Apodaca, but it’s questionable exactly what it overruled. It — I think it’s more accurate to say it overruled the decision rather than the opinion because it’s not really clear what the — what the opinion was. So that — doesn’t that discount the conclusion that it’s a new decision if it’s — it’s not the same as overruling a typical precedent?

My Answer:

Indeed one could say that Ramos overruled the decision rather than the opinion, but no, that does not discount the conclusion that it is a new rule. Undeniably, the result in Apodaca is that the judgments were affirmed despite a Sixth Amendment challenge to the 10-2 and 11-1 verdicts in the cases before the Court. Ramos reversed the judgment before the Court in that case on the identical argument. Ramos did not distinguish the case from Apodaca. Quite the contrary, it came to the opposite result because it came to the opposite conclusion as to what the Sixth Amendment as incorporated and made applicable to the State by the Fourteenth requires. That is an overruling of a precedent.

To say that a precedent requires a rationale stated in an opinion is just not correct. Decisions without rationales have long had precedential force. The most [in]famous example is Furman v. Georgia, 408 U.S. 238 (1972). The decision of the Court (it can hardly be called an opinion) is a single paragraph that states without any legal reasoning whatever that the judgments at issue “constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” This ipse dixit is followed by five individual opinions which, taken together, express no coherent rationale. But did anyone doubt that Furman was a precedent? Every existing death sentence in the country was overturned. None were executed. If Furman was a precedent, it is hard to see any valid basis for saying that Apodaca was not.

In cases where the Supreme Court has mandatory appellate jurisdiction, it has been known to issue summary decisions of “affirmed” or “reversed” or “dismissed for want of a substantial federal question” with no explanation at all. This was fairly common before 1988, when legislation drastically narrowed this jurisdiction. These decisions have less force as stare decisis when the Supreme Court considers the question in full, but they are still precedents. When the Supreme Court summarily rejected an argument that a State statute was unconstitutional, that decision was binding on all lower courts until the Court said otherwise. See Hicks v. Miranda, 422 U.S. 332, 343-344 (1975). Similarly, the decisions in Apodaca and Johnson that the Oregon and Louisiana statutes were constitutional were precedents, binding on all other courts until the Supreme Court said otherwise.

Let me repeat the quote from Graham, above. “[T]here can be no dispute that a decision announces a new rule if it expressly overrules a prior decision ….” It says “decision,” not “opinion,” and that is what it means.

Whatever may be said about its opinions, the decision in Apodaca was a precedent. Ramos overruled the decision and thereby created an indisputably new rule.

Overruling a precedent of this Court is a sufficient but not necessary condition for a rule to be new. Next time, I will address the newness of Ramos for Teague purposes regardless of whether Apodaca was a precedent.