Making an Easy Retroactivity Case Difficult: The Argument in Edwards v. Vannoy — Part II, Reasonable Minds Before Ramos

In the previous post in this series, I noted that the Supreme Court has stated clearly that any decision that overrules a prior decision is necessarily a “new rule” for the purpose of Teague v. Lane. The 1972 cases that upheld non-unanimous 12-person juries in state criminal cases, Apodaca v. Oregon, 406 U.S. 404 (1972) and Johnson v. Louisiana, 406 U.S. 356 (1972), were decisions for the purpose of this rule, even if neither contained one opinion that expressed a rationale agreed to by a majority.

Nonetheless, in Ramos v. Louisiana, three Justices opined that these cases were not precedents, and therefore the Supreme Court did not need to go through the usual analysis of whether to overrule a precedent in order to strike down Louisiana’s non-unanimous jury law. If we assumed that the view of these three was correct for the sake of argument, would it follow that Ramos is not a “new rule” for the purpose of retroactivity under Teague? No.

Back in the days when we indulged the fiction that judges do not make law but only discover what the law has always been, all rules were retroactive. We have known better for quite some time now. In the real world, different judges can interpret the same document differently, and even a single judge can reconsider a previous interpretation. The vast array of rules that flow from varying interpretations of the few, sparse words of the Bill of Rights and the Fourteenth Amendment do change over time, and everyone knows it.

Over the course of three decades of Teague decisions, the Supreme Court has consistently recognized that whether a rule is “new” does not depend on whether it is the correct interpretation of an old enactment but rather whether the rule “would have been ‘apparent to all reasonable jurists’ ” before the decision in question. See Chaidez v. United States, 568 U.S. 342, 347 (2013), quoting Lambrix v. Singletary, 520 U.S. 518, 527-528 (1997).

Even if the three Justices in the Ramos plurality were correct that Apodaca was not a precedent that needed to be overruled, that would not answer the question. The question is whether the contrary rule, the one ultimately adopted in Ramos was “dictated by precedent” before Ramos in a manner so clear as to be “apparent to all reasonable jurists.”

From the Edwards argument, p. 38, ln. 12, during the State’s argument:

JUSTICE THOMAS:  … Counsel, there’s been some discussion about what we thought on this Court about Apodaca and the decision, et cetera, and there has been some confusion, but in the lower courts, do you know of any court that did not think that Apodaca permitted or perhaps allowed the use of nonunanimous juries or did not –or actually did not think that Apodaca held that unanimous juries were permissible, nonunanimous juries were permissible?

MS. MURRILL: No, Justice Thomas, not a single one. State and federal judges to – 100 percent of them believed that it was settled precedent. And, in fact, the petitioner even in his habeas petition acknowledged that it would settle the petition, as –as he did at the time that he brought this issue up in front of the commissioner at the state trial level.

JUSTICE THOMAS: So what role should that play in our analysis of whether or not this is a new rule?

The Chaidez case provides the clear answer. That case involves a rule created without overruling any precedents. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Court held that a conviction from a guilty plea could be attacked for ineffective assistance of counsel in the failure to advise of an indirect consequence of conviction, deportation. The Court did not need to overrule any of its own precedents to reach that conclusion. It had expressly left the question open in Hill v. Lockhart, 474 U.S. 52 (1985).

With its own precedents not answering the question, the Chaidez Court looked to what lower courts had decided. The overwhelming majority of state and federal appellate courts considering the question thought that the Sixth Amendment right to counsel only extended to direct consequences of conviction. See Chaidez, 568 U.S., at 350-351.

“No precedent of our own ‘dictated’ the answer. Teague, 489 U. S., at 301. And as the lower courts filled the vacuum, they almost uniformly” went the other way. Id., at 353.

That is all we need to answer the Teague “new rule” question. Supreme Court precedent before Ramos either (1) did not dictate an answer or (2) dictated it the other way. Certainly a strong argument can be made (and was successfully made) that past references to a constitutional requirement of unanimity in federal courts plus the demise of the partial incorporation doctrine logically pointed to the result in Ramos, but that is true of nearly all new rules the Supreme Court makes.

There would be no such thing as non-retroactivity on collateral review if the definition of “old rule” were that broad, and the consequently very high cost of massive reversals with every new turn in case law would inhibit needed changes. As noted in this post, the cost of such reversals is an important consideration under stare decisis when the change is being considered in the first place.

This was settled very early in the Teague line:

But the fact that a court says that its decision is within the “logical compass” of an earlier decision, or indeed that it is “controlled” by a prior decision, is not conclusive for purposes of deciding whether the current decision is a “new rule” under Teague. Courts frequently view their decisions as being “controlled” or “governed” by prior opinions even when aware of reasonable contrary conclusions reached by other courts.

Butler v. McKellar, 494 U.S. 407, 415 (1990).

Reasonable jurists in the jurisdictions where the question arose not only could conclude that the Louisiana and Oregon systems were constitutional, they did. All of them. That is enough to answer the question.

Ramos v. Louisiana is a “new rule” for the purpose of Teague v. Lane.

In the next post I will address the phantom second exception to the Teague rule.

Previous posts in the series:

The Danger of Introducing New Factual Claims at the Supreme Court Level

What Ramos v. Louisiana Says About Its Own Retroactivity

A Teague Primer

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