What's Jury Unanimity Got to do with it? Race, Aid to Religion, and Abortion in the Ramos Case

by Michael C. Dorf

As a formal matter, Monday's SCOTUS ruling in Ramos v. Louisiana decided one and only one legal question: whether Article III and the Sixth Amendment, as made applicable to the States via the Fourteenth Amendment, requires a unanimous jury in serious state felony cases? Although Louisiana no longer permits non-unanimous juries in such cases, Ramos and other cases like it arose before the state law changed. Oregon also permits conviction by an 11-1 or 10-2 jury vote. In Ramos the Court held non-unanimous verdicts in such cases unconstitutional, thus overruling the 1972 decision in Apodaca v. Oregon.

Interestingly, Ramos split the Court on non-ideological grounds. Justice Gorsuch wrote the lead opinion, which was joined in full by Justices Ginsburg and Breyer, and in most parts by Justices Sotomayor and Kavanaugh, each of whom also wrote a concurrence. Justice Thomas wrote a concurrence in the judgment only. And Justice Alito wrote a dissent that was joined in full by Chief Justice Roberts and nearly in full by Justice Kagan.

Non-ideological splits are not that unusual on the Supreme Court, including in criminal procedure cases, where some of the Republican appointees have a libertarian streak or vote for criminal defendants based on what they imagine to be originalist grounds. Nonetheless, the non-ideological breakdown in the case was remarkable because so much of what the Justices were arguing about seems ideologically laden. Although one needs a Supreme Court secret decoder ring to understand how and why, the disagreements appear to be about race, aid to religion, and abortion.

In my latest Verdict column, I discuss what I regard as the core substantive issue in Ramos: How much weight to give to the practical consideration that as a result of the Court's ruling, hundreds of prisoners in Louisiana and Oregon will likely be entitled to new trials? I explain how the Court's limits on non-retroactivity, ostensibly derived from the case-or-controversy requirement, led the three dissenters to vote to retain a rule they do not support. Here I want to discuss the other issues swirling around the various opinions in Ramos.

(1) Race. Justice Gorsuch's opinion explains that Louisiana adopted non-unanimous juries during the Jim Crow era as a means of effectively nullifying the votes of African American jurors. The Supreme Court invalidated expressly racial juror exclusion in 1880 in Strauder v. West Virginia, so the Louisiana legislature struck back through more subtle--but no less intentional--forms of race discrimination. The rare one or two African Americans who found their way onto juries in Louisiana could have their votes to acquit an African American defendant defeated by the otherwise white jury. Justice Gorsuch says that likewise, Oregon's rule resulted from Klan influence in the 1930s. Justice Sotomayor, concurring, adds that even though both Louisiana and Oregon re-enacted their non-unanimous jury provisions without express racial bias, the "legislatures never truly grappled with the laws’ sordid history in reenacting them."

Justice Alito, in dissent, accuses the majority of ad hominem attacks. He says that the majority's rule--no non-unanimous juries--does not depend on the original racial motivation. Further, citing political actors and scholars who have supported non-unanimous juries on non-racial grounds, Justice Alito chides the majority for succumbing to political correctness, adding that his colleagues "should set an example of rational and civil discourse instead of contributing to the worst current trends."

It's not entirely surprising to see this sort of culture war issue in a Supreme Court case. Justice Alito's concurrence in Ricci v. DeStefano likewise bristles with white ethnic racial grievance, reading more like an excerpt from a Tom Wolfe novel than a SCOTUS opinion. But in Ricci, Alito spoke for himself and two other arch-conservatives: Justices Scalia and Thomas. In Ramos, by contrast, he is joined by Justice Kagan (and the Chief Justice), while the supposed offender he targets is Justice Gorsuch, joined by Justice Kavanaugh.

(2) The racial politics in Ramos could be a stand-in for an ongoing contest over the relevance of illicit motivation, but there too, one would expect an ideological breakdown. For example, as I argued a couple of terms ago with respect to the travel ban case and the Masterpiece Cakeshop case, it's relatively easy to accuse the justices of finding illicit motive taints government action when they want to invalidate that action but not when they don't. Yet there too there was a clear ideological valence to each case and thus to the machinations over impure motives.

During the current Term, the Court has pending a case with a history broadly similar to the history in Ramos. In Espinoza v. Montana Dep't of Revenue, the oral argument revealed a disagreement over whether anti-Catholic bias that led some state legislatures to adopt laws strictly forbidding aid to religious schools taints current state legal provisions that are maintained and/or were adopted for other reasons. But again, that's an ideologically laden disagreement. The conservatives seemed to think that the anti-Catholic history taints current strict separationist policies in Espinoza, while the liberals thought they don't. If the discussion of race in Ramos were a veiled way of talking about Espinoza, one would expect an ideological divide in Ramos; yet we don't see one. Thus, the discussion of race in Ramos, if it is coded, is mostly indecipherable.

(3) That brings us to abortion--which is implicated by the Justices' respective statements about stare decisis. It is no secret that the Justices are all keenly aware of the possibility of cutting back on or even entirely overruling the constitutional right to abortion in the pending Louisiana case or some other case currently in the pipeline. Thus, without mentioning abortion, the disquisitions on stare decisis pretty clearly implicate it. Each of the five separate opinions says something about stare decisis.

Yet here too the pattern is somewhat puzzling. The portion of Justice Gorsuch's lead opinion that sets out the general stare decisis considerations (Part IVA) is joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh. Because we can expect them to start with different priors on abortion, it is not surprising that the statements about stare decisis in the Gorsuch opinion are fairly anodyne. Still, because the majority does in fact overrule a precedent--Apodaca--the joins by Justices Ginsburg, Breyer, and Sotomayor could be used to undercut their argument for adherence to precedent in abortion cases. Justice Sotomayor tries to head that possibility off in her separate concurrence by noting that Ramos is not a case of simple disagreement with Apodaca but that Apodaca "was on shaky ground from the start." One wonders, however, why Justices Ginsburg and Breyer did not join Justice Sotomayor in implicitly pre-distinguishing abortion. The fact that they didn't probably explains why she tries to enlist the lead opinion (which they did join) for her view. She says "as the majority rightly stresses, Apodaca is a universe of one—an opinion uniquely irreconcilable with not just one, but two, strands of constitutional precedent well established both before and after the decision." 

Will that be enough to render Ramos harmless should it be invoked as a ground for abandoning precedent in an abortion case? That's doubtful. Justice Kavanaugh's concurrence includes what he calls a "lengthy and extraordinary list of landmark cases that overruled precedent," presumably for the purpose of undercutting the claim by Justice Sotomayor that only something special about Ramos explains the fact that it overrules a precedent.

What about the other two opinions? It is sometimes said that Justice Thomas doesn't really believe in precedent. The view he expresses about precedent in Ramos is a bit more subtle than that, but also puzzling. He quotes his earlier statements to the effect that the Constitution should not permit following "demonstrably erroneous" precedents. He then explains why he thinks the prior precedents finding a constitutional right under the Sixth Amendment to a unanimous jury are not demonstrably erroneous, so he'll follow them. He also repeats his longstanding view that incorporation of the Bill of Rights against the states should be accomplished via the Privileges or Immunities Clause of the 14th Amendment and not, as currently, via its Due Process Clause. Somewhat remarkably, then, in an opinion concurring in the judgment overruling a prior precedent, the only discussion of stare decisis is the explanation for why Justice Thomas is following the unanimity requirement precedents. There's no discussion of why he's not following Apodaca.

Nonetheless, because Justice Thomas's views on precedent are an outlier, we can set them aside. That brings us to the dissent. My Verdict column discusses the reliance interest invoked by Justice Alito at greater length. Here I'll just note the possibility that Justice Kagan joined the dissent precisely because she was hoping to prove to CJ Roberts and Justice Alito that she can follow precedents with which she disagrees so they should do the same in the abortion cases. If so, however, it's hard to see that as a winning tactic, especially because she did not bring along any of her fellow Democratic appointees.

Thus, although the ideological valence of the various Justices' tacit positioning on abortion is clear enough in Ramos, such positioning seems highly unlikely to have any impact in an abortion case. After all, the stakes in abortion cases are much higher than the stakes in a case like Ramos, which affects only two states and with respect to Louisiana, not even prospectively.