Unanimous Juries and Incorporation of the Bill of Rights

Unanimous juries (like the ban on excessive fines) might be an easy case; but at some point we will need a theory.

I was very excited to the see the Supreme Court agree to take up the constitutionality of non-unanimous jury verdicts in Ramos v. Louisiana. For reasons that have been well-discussed by others, Louisiana's practice appears to be an outlier both historically and today, and very likely a good occasion to overrule a Supreme Court precedent that is contrary to the Constitution's original meaning.

I assume that it is not a coincidence that the cert grant happened shortly after the Court's decision in Timbs v. Indiana to unanimously incorporate the Excessive Fines Clause against the states. At oral argument in Timbs, Justice Gorsuch seemed to suggest that complete incorporation of the bill of rights was at this point a foregone conclusion. But in the decision in Timbs it became clear that the Justices may not have complete agreement on a theory of incorporation, with the majority extending the Court's current substantive due process precedents, while Thomas takes the more historically accurate path of applying the Privileges or Immunities Clause. As Justice Gorsuch noted in a concurring opinion, in Timbs, nothing turned on the Court's theory of incorporation. And that is probably true in Ramos too. But at some point, it might.

So what does the Constitution tell us about incorporation of the bill of rights, and what should the Supreme Court do about the other enumerated rights it has not incorporated, such as the Seventh Amendment's guarantee of a civil jury, or the Fifth Amendment's right to grand jury indictment. Here, as usual, I'm in the debt of Chris Green, who has written:

The[] four most plausible approaches for basic privileges that must be given to all citizens of the United States are (a) rights in the Bill of Rights or elsewhere in the text of the federal constitution as limits on the federal government, (b) rights prevalent in 1868, when the Fourteenth Amendment was adopted, (c) morally-genuine rights, and (d) rights prevalent today, at the time we are applying the Clause.

Timbs was an easy case because it satisfied all four approaches. Ramos also seems to satisfy at least three, or maybe all four. (a) The Supreme Court has held that the Sixth Amendment requires unanimous juries for the federal government. (b) Lousiana has long been one of the few outliers on non-unanimous juries. (c) I suppose one could make an argument about whether a procedural right like jury unanimity is "morally genuine," and this is tied-up with the presumption of innocence, the N-guilty-men principle, and so on, but given the current scholarship on the Louisiana jury rule I doubt this is going to be an issue. (d) Louisiana remains an outlier today.

But what about the Seventh Amendment or the grand jury rule? Here it starts to matter much more what approach we use. Approach (a) would incorporate both. The best study of approach (b), by Steve Calabresi and Sarah Agudo, finds that in 1868, grand jury rights were prevalent in only 19/37 states, so that right would not be incorporated. Civil jury rights are more ambiguous. 36 out of 37 states had a constitutional jury right, but 18 of those 36 referred to juries generically while the other 18 specificied civil juries. Depending on the exact nature of the historical inquiry, this creates an ambiguity, though Calabresi and Agudo argue that incorporation of the Seventh Amendment is the better path.

Approach (c) is hard to think through here, but it seems like there could be plausible arguments either way, based in part in both the values and abuses of the jury in different contexts.

Approach (d), which looks to rights prevalent today, would presumably not incorporate the grand jury, which is required in less than half the states. The civil jury trial right is more complicated. Some kind of civil jury trial right exists today in almost every state, but (I am informed by friend and co-blogger Sam Bray) the scope and exceptions to the requirement differ from state to state. States draw the law/equity line in different places, they date the right to different years, and they make different kinds of practical exceptions. If approach (d) looks for the spot where a supermajority of states have converged today, the venn diagram for civil juries may be a very tiny one.

So far I believe Justice Thomas has chosen option (a). But there is strong historical support for four different related approaches to incorporation of the Bill of Rights, and the difference between (a) and (b) or (d) may turn out to be more consequential in future cases. It will be very interesting to see which approach Justice Gorsuch, and perhaps others, decide to follow.