The Supreme Court handed down a major new ruling today that requires state juries to be unanimous to convict defendants in criminal trials. It is a historic “incorporation” ruling that the Sixth Amendment would apply in the same way to the states as it does the federal government. Most rights are incorporated, but the Supreme Court has long allowed this protection to be decided state-by-state. The court’s 6-3 ruling overturned its 1972 decision in Apodaca v. Oregon. Notably, the opinion was written by Justice Neil Gorsuch who continues to follow his conscience in breaking from the right of the Court — as I expect he would when I testified in favor of his confirmation. Gorsuch declared that “Louisiana’s and Oregon’s laws are fully—and rightly—relegated to the dustbin of history.”
Forty-eight states already require unanimous verdicts in criminal cases. Only Louisiana and Oregon allowed for 10-2 verdicts.
While I am an advocate of federalism, I have always agreed with the position of Justice Hugo Black in supporting total incorporation of the bill of rights. He lost to a selective incorporation majority which incorporated most but not all of the rights.
I have also never been a fan of extreme views of stare decisis, including hypocritical arguments by members of Congress against nominees who they say threaten precedent on favored cases but then later demand overturning other cases that they do not like. Members of the Court show the same contradictions in primarily raising stare decisis when they are in the dissent. Gorsuch dealt with the issue straight on at the outset of the opinion:
“The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents. All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions. Indeed, in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents.”
The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents. All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions. Indeed, in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents.
Now one of the last remaining nonincorporated rights has fallen to incorporation at the hands (or pen) of Neil Gorsuch, a surprising author given his support for federalism. However, Gorsuch ruled that
“[T]he Sixth Amendment right to a jury trial is incorporated against the States under the Fourteenth Amendment. Thus, if the jury trial right requires a unanimous verdict in federal court, it requires no less in state court.”
Gorsuch was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor and Justices Brett Kavanaugh and Clarence Thomas writing concurring opinions. Justice Samuel Alito dissented and was joined by Chief Justice John Roberts and Justice Elena Kagan. Alito objected that the decision not only overruled precedent but “imposes a potentially crushing burden on the courts and criminal justice systems of those States.”
The decision is further evidence of the tremendous intellectual contribution of Gorsuch to the Court.
Here is the opinion: Ramos v. Louisiana