In Ramos v. Lousiana, decided yesterday, the Supreme Court overruled its atrocious decision in Apodaca v. Oregon (1972). Apodaca somehow managed to conclude that even though the Sixth Amendment right to a jury trial includes the requirement of a unanimous jury, and even though the Sixth Amendment applies to the states through the Fourteenth Amendment, the unanimous jury requirement does not apply to the states. And it did so through overtly non-originalist analysis. As I wrote in a prior post:
Justice White's plurality (for himself, Burger, Blackmun and Rehnquist) acknowledges that the unanimous jury is a long-standing tradition, but in an expressly non-originalist move finds that "Our inquiry must focus upon the function served by the jury in contemporary society." From that starting point, the plurality concludes that the protected "interest of the defendant [is] in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him" and declares (with essentially no analysis) that this interest "is equally well served" by a non-unanimous jury. (It seems painfully obvious to me — even granting that the defendant's interest is properly identified — that the judgment of the defendant's peers is much more effectively interposed with a unanimity requirement than without one. But in any event, if the Constitution adopted unanimity as part of its jury requirement, it shouldn't be for Justice White to second-guess that decision, at least not without very powerful reasons.)
Justice Powell's concurrence, providing the fifth vote, at least has a structural argument behind it — that the Court should not micromanage state criminal procedure but instead let states experiment with different approaches. That's fine, as long as the Constitution doesn't say otherwise. But if one accepts incorporation, the point of that aspect of the Fourteenth Amendment was exactly to preempt some state approaches and ensure a national minimum of rights corresponding to the rights held against the federal government.
And Justice Douglas, of all people, wrote a devastatingly formalist dissent.
I went on to predict that Apodaca would be overruled 9-0, which did not come to pass (it was 6-3). But none of the Justices in Ramos actually defended Apodaca (Justice Alito, Chief Justice Roberts and Justice Kagan in dissent relied only on stare decisis).
Justice Thomas, concurring in the judgment, summarizes the originalist case for unanimity:
Blackstone—“the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999)—wrote that no subject can “be affected either in his property, his liberty, or his person, but by the unanimous consent” of a jury, 3 W. Blackstone, Commentaries on the Laws of England 379 (1772); see also 4 id., at 343. Another influential treatise author, [Matthew] Hale, wrote that “the law of England hath afforded the best method of trial, that is possible, . . . namely by a jury . . . all concurring in the same judgment.” 1 M. Hale, Pleas of the Crown 33 (1736) (emphasis deleted). Such views continued in scholarly works throughout the early Republic. See, e.g., 2 J. Story, Commentaries on the Constitution of the United States §777, p. 248 (1833); 6 N. Dane, Digest of American Law, ch. LXXXII, Art. 2, §1, p. 226 (1824); 2 J. Wilson, Works of the Honourable James Wilson 349–350 (1804).
The uniform practice among the States was in accord. Despite isolated 17th-century colonial practices allowing nonunanimous juries, “unanimity became the accepted rule during the 18th century, as Americans became more familiar with the details of English common law and adopted those details in their own colonial legal systems.” Apodaca, supra, at 408, n. 3 (plurality opinion). In the founding era, six States explicitly mentioned unanimity in their constitutions. See Del. Declaration of Rights §14 (1776); Md. Declaration of Rights, Art. XIX (1776); N. C. Declaration of Rights §IX (1776); Pa. Declaration of Rights, Art. IX (1776); Vt. Const., Art. XI (1786); Va. Declaration of Rights §8 (1776). Four more States clearly referred to the common law jury right, which included unanimity. Ky. Const., Art. XII, §6 (1792); N. J. Const., Art. XXII (1776); N. Y. Const., Art. XLI (1777); S. C. Const., Art. IX, §6 (1790). Some States did not explicitly refer to either the common law or unanimity. See, e.g., Ga. Const., Art. LXI (1777); Mass. Declaration of Rights, Art. XII (1780). But there is reason to believe that they nevertheless understood unanimity to be required. See, e.g., Rouse v. State, 4 Ga. 136, 147 (1848).
Justice Gorsuch, writing for the Court, has a similar (though shorter) expressly originalist analysis.
Unfortunately, the Justices in the majority fractured badly on their discussion of stare decisis (Justice Gorsuch, joined by Justices Breyer and Ginsburg, with one view; Justices Sotomayor, Kavanaugh and Thomas each writing separately, with a range of views, plus Thomas continuing to insist that incorporation should come from the privileges or immunities clause, not the due process clause). So it's not as clean a statement as one might hope.
Still, Apodaca is gone, and that counts as a win for originalism. First, as described above, the Apodaca opinions (plurality and concurrence) were expressly nonoriginalist — indeed, Justice White directly rejected an originalist analysis. Justice Gorsuch (writing for the Court in this part of his opinion) strikes hard against their approach:
Our real objection here isn’t that the Apodaca plurality’s cost-benefit analysis was too skimpy. The deeper problem is that the plurality subjected the ancient guarantee of a unanimous jury verdict to its own functionalist assessment in the first place. And Louisiana asks us to repeat the error today, just replacing Apodaca’s functionalist assessment with our own updated version. All this overlooks the fact that, at the time of the Sixth Amendment’s adoption, the right to trial by jury included a right to a unanimous verdict. 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.
Gorsuch's opinion, and Thomas' concurrence, replace Apodaca's functionalism with sound originalist analysis.
Second, as noted, no Justice in Ramos directly defends Apodaca's approach or result (except, in the dissent, through stare decisis). I think that indicates how far the legal culture has shifted toward originalism since Apodaca.
And third, Ramos shows that originalism can lead to definite outcomes in contested cases. Three "conservative" Justices follow an originalist analysis to a "liberal" (or at least pro-defendant) result, and the other conservative Justices don't contest their originalist reasoning (again resting only on stare decisis). To be sure, originalism does not always lead to definite outcomes in contested cases, but some critics claim it never does. This is another counterexample.
RELATED: At Volokh Conspiracy, it takes Eugene Volokh, Jonathan Adler and Josh Blackman to sort out Ramos' competing opinions on stare decisis.
UPDATE: And more from Josh Blackman: 5 Unanswered Questions from Ramos v. Louisiana (mostly related to stare decisis, noting some quite amusing ironies).
Posted at 6:04 AM