The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Two weeks ago, the Supreme Court decided Ramos v. Louisiana. This case decided that the Sixth Amendment requires a unanimous jury verdict for criminal convictions. Ramos did not decide whether that rule could be applied retroactively for collateral review.
I flagged that issue here. Justice Kavanaugh said it could not be applied retroactively. Justice Alito's dissent faulted Justice Kavanaugh for reaching an issue that was not briefed. Justice Gorsuch's plurality leaned towards it not being-retroactive, but it was non-committal.
The motion of petitioner for leave to proceed in forma pauperis is granted, and the petition for a writ of certiorari is granted limited to the following question: Whether this Court's decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.
This Louisiana appeal came from the 5th Circuit. But the case was briefed well before Ramos was decided. The petition, with good reason, didn't mention retroactivity. It merely raised the unanimity issue.
Now, the Supreme Court has granted review in a case, and added a question the parties did not raise! I can't recall the last time the Court made such a move.
Here, the Court wanted to resolve the retroactivity question as soon as possible. It did't want to wait for a circuit court to rule: that is, the Ninth Circuit would (likely) hold that Ramos was retroactive for an Oregon case, and the Fifth Circuit would (likely) hold that Ramos was not retroactive for a Louisiana case.
I suspect we will see a case next term, holding that the rule is not retroactive.