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U.S. Supreme Court Debates Stare Decisis Principles

By Thomas R. Newman and Steven J. Ahmuty Jr.
May 5, 2020
New York Law Journal

U.S. Supreme Court Debates Stare Decisis Principles

By Thomas R. Newman and Steven J. Ahmuty Jr.
May 5, 2020
New York Law Journal

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In 48 states and federal court, a unanimous jury verdict is required for a criminal conviction for a serious offense. Louisiana (until recently) and Oregon permitted a conviction on a 10-2 verdict. In Apodaca v. Oregon, 406 U.S. 404 (1972), and its companion case, Johnson v. Louisiana, 406 U.S. 356 (1972) (collectively Apodaca), a plurality of the U.S. Supreme Court held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous verdict in state criminal trials.

Evangelisto Ramos was tried in Louisiana state court in 2014 on a charge of second-degree murder. Under Louisiana’s then-applicable nonunanimity law, Ramos was convicted on a 10-2 verdict. He was sentenced to life in prison without the possibility of parole. In 2018 Louisiana enacted a law requiring unanimous jury verdicts in felony trials. This new law, however, did not avail Ramos because it applied only prospectively to crimes committed on or after Jan. 1, 2019. See 2018 La. Sess. Law Serv. Act 722.

Ramos appealed his conviction by a nonunanimous jury as an unconstitutional denial of the Sixth Amendment right to a jury trial. The Louisiana Court of Appeal rejected Ramos’ argument. The Louisiana Supreme Court denied review without assigning reasons. The U.S. Supreme Court then granted certiorari.

In Ramos v. Louisiana, 590 U.S. ___, 2020 U.S. LEXIS 2407 (April 20, 2020), the Supreme Court overruled Apodaca. The court held, by a 6-3 vote, that the Sixth Amendment, as incorporated against the states by way of the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. The justices in Ramos were deeply divided as to what constitutes “precedent” and when it is appropriate to overrule it. This decision provides valuable insight into the individual justices’ views on the doctrine of stare decisis, by which courts normally adhere to precedent. Ramos has far-reaching implications for the court’s application of stare decisis principles in future cases.

Justice Neil Gorsuch wrote the majority opinion, which was joined in full by Justices Ruth Bader Ginsburg and Stephen Breyer and in part by Justices Sonia Sotomayor and Brett Kavanaugh. Tracing the origins and long history of the Sixth Amendment’s guarantee of “trial by an impartial jury,” Gorsuch concluded that this guarantee “unmistakabl[y]” requires “a unanimous verdict in order to convict.” Slip Op. at p. 4 (material in brackets added). He further concluded that the Sixth Amendment’s unanimity requirement, incorporated against the states through the Fourteenth Amendment, applies to state and federal criminal trials equally since “incorporated provisions of the Bill of Rights bear the same content when asserted against States as they do when asserted against the federal government.” Id. at p. 7.

“[D]espite these seemingly straightforward principles,” Gorsuch wrote, “the Sixth Amendment’s otherwise simple story took a strange turn” in Apodaca, which involved a “badly fractured set of opinions.” Id. at pp. 7-8 (material in brackets added). The four dissenting justices in Apodaca would have invalidated Louisiana’s and Oregon’s nonunanimity laws as unconstitutional. But a four-justice plurality concluded that these laws did not violate the Sixth Amendment since unanimity’s “costs” (e.g., the potential for hung juries) outweighed its “benefits” in the modern era. Justice Lewis Powell, who cast the decisive fifth vote sustaining the nonunanimity laws in Apodaca, agreed that the Sixth Amendment required a unanimous verdict to convict, but concluded that the Fourteenth Amendment did not render this guarantee fully applicable against the states.

Writing in Ramos, Gorsuch observed that, given the multiplicity of opinions in Apodaca, the Supreme Court in subsequent decisions had been “studiously ambiguous, even inconsistent, about what Apodaca might mean.” Id. at p. 10. Tacitly acknowledging the limited precedential value of Justice Powell’s solo opinion in Apodaca, Louisiana contended that the court had never definitively ruled, one way or the other, on the constitutionality of nonunanimous verdicts, and it invited the court to hold for the first time that nonunanimous verdicts are permissible in state and federal courts. Gorsuch gave short shrift to Louisiana’s argument, noting that the court has repeatedly stated that the Sixth Amendment does require unanimity and that five justices in Apodaca said the same. Id. at p. 11. Though Louisiana suggested that these prior statements only came in dicta, it proffered no compelling reason to depart from them.

Next, in a part of the opinion joined only by Justices Ginsburg and Breyer, Justice Gorsuch addressed Justice Samuel Alito’s dissent that Apodaca should be accorded precedential force under the doctrine of stare decisis. This, Gorsuch wrote, would “embrace a new and dubious proposition * * * that a single Justice writing only for himself has the authority to bind this court to propositions it has already rejected.” Id. at p. 16.

In the next part of the opinion joined by Justices Ginsburg, Breyer and Sotomayor, Justice Gorsuch observed that stare decisis has never been treated as an “inexorable command,” particularly on constitutional issues, and thus, even if it were to be accepted that Apodaca somehow established a precedent, the court still need not follow it. Id. at p. 20. Gorsuch then recited the traditional considerations in deciding whether to revisit a precedent: “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.” Id. Each of these factors militated against following Apodaca on the basis of stare decisis.

First, “Apodaca was gravely mistaken,” and in any event, “five Justices expressly rejected the plurality’s conclusion that the Sixth Amendment does not require unanimity.” Id. at p. 21. Second, Apodaca is inconsistent with related decisions, especially with regard to Justice Powell’s incorporation theory—i.e., that the Fourteenth Amendment does not render the Bill of Rights fully applicable against the States—and is incompatible with subsequent Supreme Court decisions rejecting this theory. Id. at pp. 21-22.

Finally, with respect to reliance interests, neither Louisiana nor Oregon had claimed “anything like the prospective economic, regulatory, or social disruption litigants seeking to preserve precedent usually invoke.” Id. at p. 22. Louisiana’s and Oregon’s concerns that defendants whose appeals are already complete might seek to challenge their nonunanimous convictions through collateral review are overstated, and in any event, new rules of criminal procedure often affect significant numbers of cases. In sum, Apodaca has no precedential value on the basis of stare decisis or otherwise since it was “an admittedly mistaken decision, on a constitutional issue, an outlier on the day it was decided, and one that’s become lonelier with time.” Id. at p. 26.

Justice Sotomayor filed a concurring opinion to underscore three points. First, the majority was not overruling Apodaca simply because it disagreed with this decision; rather, Apodaca “was on shaky ground from the start.” Concurring Op. at pp. 1-2. Second, the doctrine of stare decisis is most compelling in cases involving property and contract rights, and least compelling when constitutional rights, such as the Sixth Amendment right to a unanimous verdict, are at stake. Id. at pp. 2-4. Finally, what Sotomayor perceived as the racially-based origins of Louisiana’s and Oregon’s nonunanimous verdict laws—i.e., viewed as an attempt to neutralize the votes of African American jurors—make Ramos a “unique matter” in which stare decisis must yield to the defendant’s right to avoid imprisonment pursuant to unconstitutional procedures. Id. at p. 4.

Justice Kavanaugh also filed a concurring opinion to explain his view of how stare decisis principles operated in this case. Following a detailed analysis of the court’s jurisprudence on stare decisis generally, as well as a synopsis of the specific stare decisis factors considered in past cases, Kavanaugh distilled three broad considerations that, in his view, provide a “structured methodology and roadmap” for determining whether to overrule a prior constitutional decision.

The first consideration is whether the prior decision is “not just wrong, but grievously or egregiously wrong.” Concurring Op. at p. 7. In the majority’s view, “the original meaning of the Sixth and Fourteenth Amendments and this court’s two lines of decisions—the Sixth Amendment jury cases and the Fourteenth Amendment incorporation cases—overwhelmingly demonstrate that Apodaca’s holding is egregiously wrong.” Id. at p. 10.

The second consideration is whether the prior decision “caused significant negative jurisprudential or real-world consequences.” Id. at p. 8. While conceding that Apodaca is “workable,” Kavanaugh believed this decision causes significant negative consequences because it “sanctions the conviction at trial or by guilty plea of some defendants who might not be convicted under the proper constitutional rule (although exactly how many is of course unknowable).” Id. at p. 12.

The third consideration is whether “overruling the prior decision [would] unduly upset reliance interests?” Id. at p. 8 (material in brackets added). Though overruling Apodaca will have the effect of invalidating a limited class of convictions in Louisiana and Oregon where the verdict issue is preserved and the case is still on direct review, “it will be relatively easy going forward for Louisiana and Oregon to transition to the unanimous jury rule that the other 48 States and the federal courts use.” Id. at p. 15. Indeed, Louisiana already transitioned to a unanimous verdict rule in 2018.

Justice Clarence Thomas wrote a separate concurring opinion to express his view that the Sixth Amendment right to a unanimous verdict applies against the states through the privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause.

Justice Alito filed a dissenting opinion, in which Chief Justice John Roberts joined and Justice Elena Kagan joined in part. Rejecting any argument that Apodaca was not in fact a “precedent,” Alito wrote that “[t]he doctrine of stare decisis gets rough treatment in today’s decision. 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.” Dissent at p. 1 (material in brackets added).

While Ramos resolves the unanimous verdict requirement once and for all, its true importance lies in the justices’ remarks about stare decisis—an issue that looms large as prior abortion-rights and other constitutional precedents face new challenges in federal and state courts.

Thomas R. Newman is of counsel to Duane Morris and author of “New York Appellate Practice” (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.