Splintered High Court Requires Unanimous Juries
All but two states require juries to be unanimous in serious criminal cases, and one of those states has already amended its constitution to require unanimity going forward. In a pair of cases nearly half a century ago, Apodaca v. Oregon and Johnson v. Louisana, the Court upheld these two state’s non-unanimous jury laws by a 5-4 vote, but the 5 could not agree on a single rationale.
Today in Ramos v. Louisiana, No. 18-5924, the Court decided otherwise by a 6-3 vote. Part of Justice Gorsuch’s opinion is joined by four other Justices, making it the opinion of the Court, and part is not. The divisions over precedent strike me as more interesting than the divisions over jury trial.
Unanimity and the Sixth Amendment
The portion producing the least disagreement, strangely enough, is what most people would expect to be the main point of the case. That is, when the Sixth Amendment was adopted guaranteeing jury trials, it was understood to require a unanimous jury. The Court has said so many times over the years with regard to the original scope of the Sixth Amendment, i.e., federal criminal cases.
The plurality opinion of Justice White in Apodaca, asserting that unanimity is not constitutionally required in either state or federal cases, does not get much of a defense on its merits. Part III of today’s opinion of the Court takes a decidedly originalist tone, rejecting Justice White’s pragmatic cost-benefit analysis.
When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed. 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.
Logically, this should work both ways. If original understanding trumps contemporary cost-benefit analysis when it comes to preserving the scope of a right as it was understood at the time of adoption, it should do the same when advocates seek to enlarge the scope of a constitutional provision. Court should not deprive the people of the right to make a decision by statute today if they had the authority to make that decision under the provision as it was understood when adopted.
This portion of Justice Gorsuch’s opinion is joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh. Justice Thomas would decide the question on the numerous precedents without reopening the original question.
Justice Alito’s dissent is joined by Chief Justice Roberts and Justice Kagan, though the latter drops out of a portion of the reliance discussion. Even the dissent does not assert that Justice White’s position is correct, only that it is not so clearly wrong as to justify overruling it as precedent. “I cannot say that I would have agreed either with Justice White’s analysis or his bottom line in Apodaca if I had sat on the Court at that time, but the majority’s harsh criticism of his opinion is unwarranted.”
Incorporation
But what about state cases? The Sixth Amendment originally applied only to federal cases, and its requirements apply to state cases only to the extent they are incorporated in the Fourteenth Amendment. Justice Powell cast the deciding vote in Apodaca based on his view, shared by no other Justice at the time, that while the jury trial right was incorporated the unanimity requirement was not.
The Court majority is downright scornful of this approach, quoting the caustic Justice Douglas referring to it as a “watered-down, subjective version of the individual guarantees of the Bill of Rights.” The view deserves a bit more respect than that, even if it is now only an exhibit in the museum of jurisprudence. A good many Justices have endorsed that view in the past, Justice Alito points out in dissent, and it was the Court’s approach for a long time. Justice Fortas endorsed this view in his concurrence four years earlier in Bloom v. Illinois, 391 U.S. 194, 213 (1968).
I see no reason whatever, for example, to assume that our decision today should require us to impose federal requirements such as unanimous verdicts or a jury of 12 upon the States. We may well conclude that these and other features of federal jury practice are by no means fundamental — that they are not essential to due process of law — and that they are not obligatory on the States.
Precedent
But how do we treat Apodaca as precedent, particularly in light of the fact that there is no overlap in the two opinions that comprise the majority? Here is where Justice Gorsuch loses the majority, and his opinion is not the opinion of the Court. Yes, ladies and gentlemen, on the question of how to interpret a Supreme Court precedent with no majority opinion, we have a precedent with no majority opinion. I’ve seen this movie before, I didn’t like it the first time, see Gregg v. Georgia, 428 U.S. 153, n. 15 (1976) (lead opinion), and it doesn’t get better with repetition. The rule announced in that Gregg footnote was endorsed by a majority the next year in Marks v. United States, and it is now called the Marks rule, but it remains difficult to apply in many cases.
In Part IV-A, Justice Gorsuch takes the remarkable position that Apodaca is not a precedent at all. Justices Sotomayor and Kavanaugh bail, leaving only Justices Ginsburg and Breyer concurring in this part.
Justice Kavanaugh explains in a lengthy footnote, number 6, why Apodaca‘s “bottom-line result carried precedential force.” Both the results and the reasoning of precedents have precedential force. “When the Court’s decision is splintered, courts follow the result, and they also follow the reasoning or standards set forth in the opinion constituting the ‘narrowest grounds’ of the Justices in the majority.” “Narrowest grounds” is the Marks rule.
“On very rare occasions, as in Apodaca, it can be difficult to discern which opinion’s reasoning has precedential effect under Marks,” Justice Kavanaugh says. I agree on the “difficult” but do not agree that it is rare, much less “very rare.” It’s not even medium rare. I have had to brief the issue multiple times to the Supreme Court, repeatedly calling for clarification of the Marks rule. We aren’t there yet.
“But even when that happens, the result of the decision still constitutes a binding precedent for the federal and state courts, and for this Court, unless and until it is overruled by this Court.” Nailed it. So the Court is obligated to do the heavy lifting and demonstrate why overruling Apodaca is correct under the Court’s own precedents on precedent, which Justice Kavanaugh does.
In Justice Thomas’s view, the Bill of Rights was incorporated in the Privileges and Immunities Clause of the Fourteenth Amendment, so all of the cases addressing incorporation through the Due Process Clause, including Apodaca, are not binding. He hasn’t gotten any takers for this view yet.
Reliance and Retroactivity
The strongest argument against overruling Apodaca is reliance. The primary reason we have a Supreme Court in the first place is to give us definitive, nationwide answers to disputed questions of federal law, including constitutional law. When the Supreme Court decides a question, people, businesses, and governments should be able to rely on that decision and plan their future actions accordingly. Oregon and Louisiana have tried a lot of cases in justified reliance on Apodaca. They should not have the rug pulled out from under them and be forced to retry all those cases.
In Part IV-B-2, Justice Gorsuch comes very close to saying that this rule will not be retroactive on collateral review under Teague v. Lane. If not, the damage is limited to reversing cases that have already been tried but are still pending on the direct appeal. Justice Kavanaugh does not join this part of the opinion, but he is even stronger on this point. “Under the well-settled Teague principles, there should be no doubt that today’s decision likewise will not apply retroactively on collateral review.” That is correct, with emphasis on “should.” That does not mean that prisoners will not attempt to use today’s decision on collateral review.
We have quite an interesting mix of decisions in this case, and the standard ideological divisions are scrambled. The damage in two states will be significant but short-lived. The originalist approach to the Bill of Rights will benefit the prosecution more than the defense in cases to come. The precedent questions remain to be resolved another day.
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