David G. Savage
Los Angeles Times
WASHINGTON — The Supreme Court declared Monday that the Constitution requires that juries come to a unanimous verdict to convict Americans of serious crimes, overturning a state law in Louisiana that critics say has been used to find black defendants guilty even when one or two black jurors disagree.
The court’s opinion by Justice Neil M. Gorsuch provides a striking example of how “originalism” — a doctrine favored by conservatives — can sometimes yield rulings that produce liberal results.
Gorsuch said that when the Sixth Amendment, including the right to a jury trial, was added to the Constitution in 1791, it was understood to mean that jurors had to reach a unanimous jury verdict. Yet the Supreme Court until now had refused to enforce that requirement on the states. Although juries in federal cases must be unanimous, a divided court in 1972 did not impose the rule on the states.
Gorsuch said that was a mistake. “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,” he wrote in Ramos vs. Louisiana.
“As judges, it is not our role to reassess whether the right to a unanimous jury is ‘important enough’ to retain,” Gorsuch continued, quoting from the court’s 1972 decision, which is now overturned. “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.”
The court’s decision overturns the conviction and life prison term of Evangelisto Ramos, who was convicted by a 10-2 jury of murdering a prostitute whose body was discovered in New Orleans. As Gorsuch noted, Louisiana had adopted the rule of non-unanimous juries in 1898 at a state convention established to maintain “the supremacy of the white race.” In the Reconstruction era, Southern states were told they could not exclude all blacks from juries, but the Louisiana rule allowed for convicting black defendants even if one or two blacks refused to go along.
Besides Louisiana, only Oregon has allowed juries to convict defendants without a unanimous verdict. Gorsuch said Oregon’s rule was adopted in the 1930s and could “similarly be traced to the rise of the Ku Klux Klan and efforts to dilute the ‘influence of racial, ethnic and religious minorities on Oregon juries.’”
Monday’s ruling is expected to give several dozen prisoners in the two states the right to a new trial.
Gorsuch’s opinion was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Brett M. Kavanaugh, while Justice Clarence Thomas concurred in the result.
Justice Samuel A. Alito Jr. said in dissent that the court should not overturn the 1972 precedent that allowed for non-unanimous juries, and Chief Justice John G. Roberts Jr. and Justice Elena Kagan agreed.
The leaders of civil rights groups welcomed the ruling.
“Racism infects virtually every stage of our criminal justice system, and non-unanimous jury verdict schemes opened the door for disproportionately high rates of convictions of African Americans, particularly in Louisiana,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “The court’s decision rightfully recognized and condemns the discriminatory motive underlying Louisiana and Oregon’s long history of permitting non-unanimous jury verdicts, which stood as relics from the Jim Crow era.”
Elizabeth Wydra, president of the progressive Constitutional Accountability Center, called the ruling a “long overdue … victory for our Constitution’s text, history and values. At long last, the Sixth Amendment’s guarantee that convictions by juries in major criminal cases require unanimous verdicts now applies in state courts, not just federal courts.”
It’s not the first time Gorsuch has joined liberals in a criminal justice case. Last year, Gorsuch argued for overturning an old doctrine that allowed for a defendant to be tried twice for the same crime, once by the state and once by the federal government.
“A free society does not allow its government to try the same individual for the same crime until it’s happy with the result,” Gorsuch wrote in dissent with Justice Ginsburg, when the court upheld what he called a “colossal exception to this ancient rule against double jeopardy.” In that case, Gamble vs. U.S., most of the justices decided the federal government sometimes had valid reasons for pursuing a separate prosecution for the same offense.
In the case decided Monday, all the justices appeared to agree that the Sixth Amendment called for unanimous jury verdicts. But the court, in a splintered 5-4 ruling in the 1972 case of Apodaca vs. Oregon, had refused to impose the federal rule on the states. Some current justices objected to reversing that ruling.
“Understandably thinking that (the 1972 decision in Apodaca vs. Oregon) was good law,” Alito wrote in dissent, “the state courts in Louisiana and Oregon have tried thousands of cases under rules that permit such verdicts. But today, the court does away with Apodaca and, in so doing, imposes a potentially crushing burden on the courts and criminal justice systems of those states.”
In the past year, Kagan, an appointee of President Barack Obama, has repeatedly refused to join opinions that reject precedents, even when doing so would yield a ruling that would be applauded by liberals.
Because of the looming battle over abortion and the fate of the Roe vs. Wade ruling, the justices on the left and right have been focused on the issue of overturning precedent.
Kavanaugh wrote an 18-page separate opinion to explain his view on why the 1972 precedent regarding jury verdicts deserved to be overruled. He said it was “egregiously wrong” because it was based on racism and conflicted with the understood meaning of the Constitution. And, he added, only two states adhere to it.