The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So the Supreme Court just held this morning, in an opinion (Ramos v. Louisiana) by Justice Gorsuch, joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh (with Justice Sotomayor and Justice Kavanaugh writing separately in part as to why a contrary precedent should be overruled). Justice Thomas agreed on the result, though argued that the unanimous jury trial guarantee of the Sixth Amendment majority should be seen as applied to the states via the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause (his view as to the Bill of Rights more generally).
Justice Alito, joined by Chief Justice Roberts and (largely) Justice Kagan, dissented. They would have upheld nonunanimous verdicts because of the past precedent supporting them, the splintered decision in Apodaca v. Oregon (1972). More on this later today, I hope, but here's the closing from Justice Gorsuch's opinion (joined on this by Justices Ginsburg, Breyer, and Sotomayor):
On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment. No one before us suggests that the error was harmless. Louisiana does not claim precedent commands an affirmance. In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others.
But where is the justice in that? Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.