A Precedent Overturned Reveals a Supreme Court in Crisis 1

The country wasn’t exactly holding its breath for the Supreme Court’s decision this week that the Constitution requires juror unanimity for a felony conviction in state court. The case promised little change. Unanimity has long been understood as constitutionally required in federal court as a matter of the Sixth Amendment right to trial by jury.

The only outlier among the states was Oregon. Louisiana, where the case originated in an appeal brought by a man convicted of murder in 2016 by a 10-to-2 vote, changed its rule two years later to require unanimity going forward. Six Supreme Court justices agreed this week that contrary to the outcome of a 1972 case, there is not one rule for the federal courts and another for the states: Conviction only by a unanimous jury verdict is now the rule for both.

That sounds almost too straightforward to be very interesting. Even people with more than a passing interest in the Supreme Court may well have thought, “Well, then that’s that,” before moving on to other cases, other concerns.

That would have been a mistake. This decision, Ramos v. Louisiana, is in fact one of the most fascinating Supreme Court products I’ve seen in a long time, and one of the most revealing. Below the surface of its 6-to-3 outcome lies a maelstrom of clashing agendas having little to do with the question ostensibly at hand and a great deal to do with the court’s future. Peek under the hood and see a Supreme Court in crisis.

Consider that it took nearly seven months from the argument last October for the justices to come up with something they were willing to send out into the world: five separate opinions, a total of 83 pages, to answer the straightforward question presented by Evangelisto Ramos’s petition: “Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.” (“Incorporates” refers to the ongoing process of applying the guarantees of the Bill of Rights — which by their terms apply only to Congress — to the states.)

Simple as that question appeared to be, this case meant trouble at the court from the start. The decision to grant review in the first place was a disputed one, or so we can infer from the fact that the justices considered Mr. Ramos’s petition at eight of their closed-door conferences, beginning in October 2018, before finally granting it in March of last year. Petitions are usually granted after one or two conferences, so such prolonged consideration indicates some kind of internal struggle as proponents search for the necessary four votes.

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That there was a struggle was hardly surprising, because the grant of review marked a sharp and unexplained break with the recent past. On 10 previous occasions, including three times in the past three years, the court denied petitions from Louisiana and Oregon inmates appealing jury verdicts that were not unanimous. After Louisiana changed its law in 2018, leaving only Oregon, there would have seemed less reason to take up the issue of whether Apodaca v. Oregon, the 1972 ruling that let states keep their majority juries, should be overturned. In the most recent denial, in June 2018, the court turned down a petition filed by the same lawyer who represented Mr. Ramos. That petition, Magee v. Louisiana, presented precisely the same question, word for word. The court denied review after only one conference, with no noted dissent and without even requesting a response from the state.

So something changed between June 2018 and March 2019, when the court granted the Ramos case. I think the change is obvious: Justice Anthony Kennedy retired and Justice Brett Kavanaugh took his place.

I have no reason to think Justice Kavanaugh is particularly interested in jury unanimity. But I do remember his carefully chosen words to Senator Susan Collins of Maine, a Republican who supports abortion rights, words she found sufficiently reassuring to earn her vote for his bitterly contested confirmation. Roe v. Wade was “settled law,” he said, a statement of the obvious but sufficiently nuanced to take the relieved senator off the hook. Recalling that masterful locution, it comes as no surprise to find Justice Kavanaugh passionately interested in the nature and meaning of Supreme Court precedent. And on this court, in this case, he was not alone.

Was it Justice Kavanaugh’s vote to hear the Ramos case that broke the logjam and enabled the court to grant review? We may never know. But from the multiple opinions, including his, it’s clear that what this case was really about was precedent: when to honor it, when to discard it and how to shape public perceptions of doing the latter. Justice Kavanaugh’s 18-page concurring opinion, which no other justice joined, included a list of 30 of “the court’s most notable and consequential decisions” that overturned earlier rulings — a kind of “30 ways to leave your lover” inventory of decisions that occupied the ideological spectrum from Brown v. Board of Education to Citizens United.

“Indeed,” he observed, “in just the last few terms, every current member of this court has voted to overrule multiple constitutional precedents.” Hey, overturning precedent is so commonplace these days as to be virtually painless. Look, everyone does it. I can, too.

It was a noteworthy performance by the court’s junior justice, but not the most notable feature of the decision. The case left the court’s usual ideological alignment in shambles. The six justices who voted to require unanimous juries were, in addition to Justice Kavanaugh, Justice Neil Gorsuch, who wrote the controlling opinion; Justices Ruth Bader Ginsburg and Stephen Breyer, who joined him; Justice Sonia Sotomayor, who joined much of the Gorsuch opinion but distanced herself from its most provocative assertion; and Justice Clarence Thomas, who agreed with the bottom-line result but refused to sign any of the Gorsuch opinion, heading off instead on a quirky and irrelevant detour of his own devising.

Justices Ginsburg and Breyer, who stuck with Justice Gorsuch all the way — the only two justices to do so — played a fascinating role. Justice Gorsuch needed them, but they needed him as well. What the three had in common was a desire to get to jury unanimity. What stood in the way was a precedent, Apodaca v. Oregon. With the nature of precedent squarely on the table, Justices Ginsburg and Breyer no doubt felt a powerful urge to be on precedent’s side, for the sake of the principle known as stare decisis. (A recent precedent of Justice Breyer’s is now at stake in an abortion case from Louisiana the court is about to decide.) This was a dilemma.

The solution the three arrived at — just those three — was to deem the Apodaca decision not to have been a valid precedent in the first place. In that splintered 1972 decision, there was no majority analysis to support the conclusion that the Sixth Amendment’s unanimity requirement didn’t bind the states. Justice Lewis Powell cast the controlling vote, and he spoke only for himself, taking an analytical approach that majorities in subsequent cases have flatly disavowed. To continue to adhere to the Apodaca decision, Justice Gorsuch wrote, “we would have to 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.” Problem solved. There was no need to overturn precedent because there was really no precedent to overturn.

But this neat solution didn’t meet Justice Kavanaugh’s need to use this case as an opportunity to expound on his theory of precedent to inoculate himself against criticism for overturning precedents that might pass his way in the future. Only overturning a real precedent this time would serve. So he used his separate opinion to explain why the “egregiously wrong” Apodaca decision was, in fact, a precedent that required overturning. Justice Sotomayor, a critic of many pro-prosecution criminal law precedents, also needed a real precedent to make her own point, in her solo separate opinion, that “while overruling precedent must be rare, this court should not shy away from correcting its errors where the right to avoid imprisonment pursuant to unconstitutional procedures hangs in the balance.”

At 26 pages, Justice Samuel Alito’s dissenting opinion, which the chief justice and Justice Elena Kagan joined, was the same length as Justice Gorsuch’s opinion. I have a feeling that it started out as the majority opinion, with Justices Ginsburg and Breyer onboard. Lacking proof, I’ll leave it to future Supreme Court historians to validate or debunk that theory. It’s an interesting enough opinion in its own right — remarkable, in fact, for its agreement with all the other justices that Apodaca was wrongly decided. Nonetheless, Justice Alito wrote, to overturn that precedent would be to leave Louisiana and Oregon facing a “potential tsunami of litigation” from those convicted by split juries who would seek new trials. He explained that the two states have “enormous reliance interests” in retaining systems that the Supreme Court had deemed constitutional.

Justice Alito was in an odd position to make such a point. His majority opinion two years ago in the Janus case, stripping public employee unions of the ability to collect a portion of dues from employees who chose not to join, was the culmination of a campaign that he had orchestrated to overturn a 41-year-old precedent that had deemed it constitutional to require such payments.

In the closing paragraphs of his Ramos dissent, he tried to explain the difference between adhering to Apodaca while overturning the labor precedent. Labor unions should not have relied on that precedent, he said, because “unions had been on notice for some time that the court had serious misgivings” about it. Justice Kagan, whose dissenting opinion in the Janus case contained some of the strongest writing of her years on the court, refused to sign this portion of Justice Alito’s Ramos dissent.

At the beginning of this column, I referred to the Supreme Court “in crisis.” What stands revealed in this puzzling bundle of opinions is not so much a court as nine individuals in pursuit of agendas far removed from the controversy they undertook to resolve. Remarkably, all nine agreed that the Apodaca decision, the continued validity of which they had recklessly put in play, had been a failure. But the real failure lies not in what the Supreme Court did in 1972 but in what it did this week, in its inability to provide a coherent answer to the question it chose to ask.

An obituary appeared in The Times last week for a 95-year-old former college professor named Darius Swann. As a young African-American father whose 6-year-old son was barred by race from attending a nearby public elementary school in Charlotte, N.C., Mr. Swann was the lead plaintiff in a case that led to a 1971 Supreme Court decision that authorized busing as a permissible remedy for courts to use to desegregate local school systems.

I mention this because the decision, Swann v. Charlotte-Mecklenburg Board of Education, one of the most important rulings during the era of resistance that followed Brown v. Board of Education, was unanimous. It didn’t start out that way. As the justices’ subsequently released papers revealed, and as Michael Graetz and I discussed in our book on the period, “The Burger Court and the Rise of the Judicial Right,” the decision started as a mess. Chief Justice Warren Burger, newly installed in office, was a reluctant participant in the project and was forced by his colleagues to go through seven drafts until he came up with an opinion that all would sign.

The decision wasn’t perfect, and neither was the court that produced it; Swann was a compromise that proved to contain the seeds of its subsequent erosion. But the point is that the justices of the Burger Court at least offered some clarity as they spoke to a moment when the eyes of the country were on the federal courts and on the schools that remained segregated half a generation after Brown.

I hadn’t thought of the Swann case for years until I read Mr. Swann’s obituary. It lingered in my mind as I picked up the Ramos decision. What was I expecting? Just some clarity, I suppose. And what are we left with? The same question swirling around our everyday lives now: What happens next?

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