Supreme Court

Supreme Court Rules Non-Unanimous Jury Verdicts in Criminal Cases Unconstitutional

A 50-year-old precedent was tossed, which caused three justices to dissent.


The Supreme Court ruled today that the Sixth Amendment right to a jury trial requires criminal convictions to be decided unanimously in most cases in state courts, overturning a previous decision from the 1970s.

Prior to Ramos v. Louisiana making its way up to the Supreme Court, 48 states and federal courts already required a unanimous conviction for most criminal charges. Louisiana and Oregon were both outliers, permitting 10-2 verdicts.

Evangelisto Ramos was convicted in 2015 of second-degree murder by one of those split juries in Louisiana. He challenged his conviction, hoping the Supreme Court would affirm that the Sixth Amendment required unanimous convictions and that this provision applies to state convictions under the 14th Amendment, not just federal convictions.

Today he got his wish. The ruling is rather complicated in part because of a Supreme Court ruling from 1972, Apodaca v. Oregon, which upheld non-unanimous verdicts for state courts. Today's decision reverses Apodaca, and that helps explain the unusual combination of dissenters. Supporting today's ruling (in various degrees and for varying justifications) were justices Neil Gorsuch (who wrote the decision), Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh, and Clarence Thomas. Opposing were Chief Justice John Roberts, Samuel Alito (who wrote the dissent), and Elena Kagan.

Gorsuch's ruling notes that the implementation of Louisiana's and Oregon's non-unanimous convictions were deeply and openly rooted in racism. They were designed so that black members of the jury could be overruled by white jurors to convict black defendants. It's not even a controversial interpretation of what happened. Leaders in the states who pushed these jury rules were very open about it at the time. And despite the Apodaca ruling, the Supreme Court has regularly held in at least 13 other rulings that the Sixth Amendment requires unanimity. Gorsuch writes:

This Court has, repeatedly and over many years, recognized that the Sixth Amendment requires unanimity. As early as 1898, the Court said that a defendant enjoys a "constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons." A few decades later, the Court elaborated that the Sixth Amendment affords a right to "a trial by jury as understood and applied at common law…includ[ing] all the essential elements as they were recognized in this country and England when the Constitution was adopted."

Sotomayor wrote a concurring ruling to emphasize that Apodaca was a particularly unique ruling that was simply irreconcilable with other rulings about the Sixth Amendment and its application to jury unanimity. She notes that stare decisis—the legal principle that the Supreme Court should be reluctant to overturn past precedents—is at its weakest when those previous decisions "implicate fundamental constitutional protections." Kavanaugh also wrote separately to take note, like Sotomayor, of the number of times that the court has abandoned stare decisis to overrule any number of former Supreme Court precedents and declares the Apodaca ruling "egregiously wrong." Thomas wrote separately to concur with the judgment but to argue that the Privileges and Immunities Clause of the Fourteenth Amendment, not the Due Process Clause, calls for the reversal of Apodaca.

The reason for the dissent by Roberts, Alito, and Kagan is not because the three are big fans of racially motivated conviction guidelines but because they are concerned about potential impacts of this deviation from stare decisis. Alito is concerned that Oregon and Louisiana may now have to go back and contend with these non-unanimous verdicts.

Ultimately, the ruling seems to be much less about jury decisions in general (Louisiana voters subsequently passed a referendum in 2018 requiring unanimous jury decisions), and more about the circumstances by which the Supreme Court overturns previous precedents and its meaning for future cases that might come before the court. As Jonathan Adler at The Volokh Conspiracy notes, Kagan is one of the court's strongest supporters of stare decisis, explaining why she might break from some colleagues she's typically aligned with for this case. Analysis of this case may revolve less around what it means for criminal justice (though certainly establishing that criminal verdicts must be unanimous is important) and more around what it means for controversial challenges to past Supreme Court rulings that might be taken up in the future.

Read the verdict here.

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  1. Stare decisis is terrible. I'd go in the opposite direction -- require every single court decision to start from basic principles of the Constitution, and throw in the Declaration of Independence and natural human rights if necessary. Fuck stare decisis entirely.

    And good on Thomas for his 14th views. Slaughterhouse was an atrocious repudiation what had been debated in Congress, state legislatures, and newspapers just a few years before.

    1. You should read the concurrence Thomas wrote, if you haven't already done so. A big part of it can be paraphrased as "The Supreme Court has often screwed up stare decisis. This is how you do it right." The other big part, of course, is that the 6th Amendment should be properly applied to the States via the Privileges and Immunities clause.

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        1. Deep Lurker -
          fdylna makes some excellent points.

    2. >>Fuck stare decisis entirely.

      yes. really, yes to the whole post.

      1. So we can have a few dozen flag desecration cases per year?
        So we can endlessly relitigate fighting words?
        So the Commerce Clause becomes a fuzzy (or fuzzier) mess?

    3. Amen, but then again that would make it hard for them to trample all over the constitution.

  2. Sounds like the SC got it right this time.

    Stare decisis is terrible. I’d go in the opposite direction — require every single court decision to start from basic principles of the Constitution, and throw in the Declaration of Independence and natural human rights if necessary.

    Precedent is useful, but should have a shelf life.

    1. Brennan and Marshall had it right the first time.

      Being on the right side of history tends to be a habit for some justices.

      1. That is true. Too bad you are too ignorant to know which judges that is. Do everyone a favor and stay off the legal threads. It is one thing for you to infect the political threads with your ignorance. Those threads are messed up anyway. But on threads like this, it would be nice if the adults could talk. You have no idea what is going on and nothing to add to the conversation.

      2. It’s good to see Rev Troll agree with Kavanaugh.

  3. Finally, a conservative white man will be able to get a break in Portland courtroom. Based on what they have done to people who react appropriately to the Antifa bullshit recently, this is welcome news. No chance that they will hold Antifa responsible, but at least it will be harder to convict their victims.

  4. As those many examples demonstrate, the doctrine of stare decisis does not dictate, and no one seriously maintains, that the Court should never overrule erroneous precedent. As the Court has often stated and repeats today, stare decisis is not an “inexorable command.” E.g., ante, at 20.
    On the other hand, as Justice Jackson explained, just “because one should avoid Scylla is no reason for crashing into Charybdis.” Jackson, Decisional Law and Stare Decisis, 30 A. B. A. J. 334 (1944). So no one advocates that the Court should always overrule erroneous precedent.
    Rather, applying the doctrine of stare decisis, this Court ordinarily adheres to precedent, but sometimes overrules precedent. The difficult question, then, is when to overrule an erroneous precedent.

    Guess the author of this weasel-worded concurring opinion. If you guessed Brett Kavanaugh because you were suspicious right from the start that Trump struck out in attempting to pick a second Neil Gorsuch by picking instead a second John Roberts, you win!

    1. I'm not entirely sure if I disagree with Kavanaugh here. I know of one decision that is still with us today because of Stare Decisis, and it's still with us in part because a dissenter from the first decision was still around when it came back to the Supreme Court 25 years later -- and he affirmed the decision in no small part because of Stare Decisis.

      In both cases, the focus was on Miranda rights. The Justice in question (I believe it was Scalia) initially opposed the creation of reading Miranda rights (he didn't believe the Constitution required it), but when it came around again, he basically said "Every police officer knows by now that this is what you are supposed to do, and it does protect the rights of the arrested, and even though I believe it's not required by the Constitution, it's such a small thing, there's absolutely no reason to overturn it."

      I can't remember if Scalia (if that was really who was involved) was the deciding factor in the second case, but regardless, we still have Miranda rights because of precedent -- precedent that arguably isn't supported by the Constitution....

      This isn't to say that Stare Decisis should be upheld every time -- it's just not the absolute evil we're tempted to make it out to be, either. Unfortunately, like most tools, it can provide stability when we need chaos, and chaos when we need stability!

  5. The Supreme Court ruled today that the Sixth Amendment right to a jury trial requires criminal convictions to be decided unanimously

    "Of course, however, the Supreme Court can have several Justices dissenting in its decisions."

  6. >>Oregon ... 10-2

    I saw that on a 20/20 or whatever and didn't believe it was possible. Good for the Court.

    1. At some point in the 1970s or '80s, Federal courts accepted 10-2 jury verdicts. (I remember being called to be in a pool of potential jurors for a well-known case, and being informed of that.) When and how did that change?

  7. Gorsuch's ruling notes that the implementation of Louisiana's and Oregon's non-unanimous convictions were deeply and openly rooted in racism. They were designed so that black members of the jury could be overruled by white jurors to convict black defendants.

    Also interfered with jury nullification in general.

    1. Shhhh, don't tell them that or at least 2 of them will retract their decisions!

  8. It doesn't matter.
    When all participants of a "system" are feeding from the same nose-bag, free from competition -- and are allowed (by your neighbors and friends -- hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can't honestly call it a "justice" system. It's a system of abject tyranny.

  9. The SCOTUS was "supposed" to be a check on govt. power. It was acknowledged as an experiment, along with the entire Constitution.
    The experiment has proven to be a miserable, complete failure. Why the SCOTUS? The judges are picked by the statists they will judge. They only get appointed if their careers show they are statists. Moreover, they don't have to be logical, moral, or consistent. No accountability, no punishment, will come from decisions that violate rights, in violation of their sworn duty.
    It's time for a non-violent revolt, a new political paradigm based on non-violence, reason, rights, and choice.

  10. Awesome! Can we do Baldwin v New York next? Well, maybe Chevron v NRDC first, then Baldwin. Finish this off with overturning Wickard v Fillburn, and the USA will be a much, much better place.

  11. > Alito is concerned that Oregon and Louisiana may now have to go back and contend with these non-unanimous verdicts.

    Well YES. It’s one thing if it were contract law, but these are human being locked up in jail for what we know is an unjust reason.

    1. The "good" news for Alito is that if they've already used up their direct appeals, they'll probably stay in prison despite the unconstitutionality of their conviction.

      1. Ugh, another messed up court shenanigan.

    2. Look guys, OBVIOUSLY your conviction was unconstitutional... but it's really inconvenient to discuss your fundamental rights and freedom NOW, isn't it?

  12. I wish we would hear more of these decisions being "based on our majority's interpretation of the Constitution" rather than saying it is "Constitutional", because, as in this case, a unanimous verdict by a jury is nowhere mentioned in the document, itself.
    I understand that not every possibility could have been contemplated by the Framers, at the time, but let's not forget that the actual wording is what is "Constitutional", while many of the SC's decisions are merely their current interpretation of those words.
    "Stare decisis" being just one example.

  13. I can see both sides of things here. Stare Decisis is really important as a basic concept for jurisprudence because the courts are not supposed to be deciding which laws are right or wrong. If the law is unjust then it should be changed by legislatures. What a ruling by a court SHOULD be doing is deciding what a law really means and what it really applies to, evil and wrong though it may be. If a previous court has held that a law means this then it's not the job of a later court to come along and decide the interpretation is wrong. If the law sucks under that interpretation then it needs to be changed, by a legislature, not reinterpreted.

    That said, it seems like in this case there was quite a bit of stuff that made the original ruling not consistent with how it should have been ruled given the previous legal opinions it was supposed to be building on. I haven't really read deeply on this case so I can't really speak authoritatively there but I could be persuaded that there's an argument for that.

  14. ...Alito is concerned that Oregon and Louisiana may now have to go back and contend with these non-unanimous verdicts.

    Heaven forbid.

    Without knowing the 1898 that states unanimity is required by the Sixth Amendment, doesn't Apodaca overturn that precedent, as well as the others referenced in the quoted paragraph?

  15. Again one of those decisions that I agree with the result, but the Constitution seems silent.

    INAL, but I assume the 14th and equal protection does not come into play (it surely seems the state were playing shenanigans.)

  16. If "this law was created for racist reasons" is a good enough reason to look at it, when does the SC grow a pair and start taking up gun rights cases again?

    1. They are going to hear NY rifle and pistol v City of NY.
      That case is such an outrageous violation of the constitution that it may result in a strict scrutiny test of all anti gun legislation.
      Which will hopefully result in alL assault rifle, magazine limits, and one gun per month bans all being thrown out.
      One can hope the Supremes have “grown a pair”

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