5 Unanswered Questions from Ramos v. Louisiana


Yesterday, I hastily counted the votes from Ramos v. Louisiana. I have now read the entire 87-page opinion. Ramos is even more fragmented than I initially recognized. And this decision tells us a lot about how the Justices approach stare decisis. Indeed, I view Ramos as something of a proxy fight about Roe. The Justices are drawing lines about what precedents will, and will not stand.

Here are five unanswered questions from Ramos.

1. Is Apodaca a precedent?

Part IV-A of the plurality was joined by Justices Gorsuch, Ginsburg, and Breyer. This section suggests that Apodaca should not be considered a precedent at all. Why? Because Justice Powell's sole vote in the 4-1-4 split cannot set a precedent. And because Powell's opinion is not a precedent, the case as a whole supplies no "governing precedent." Consider this paragraph:

In the first place and as we've seen, not even Louisiana tries to suggest that Apodaca supplies a governing precedent. Remember, Justice Powell agreed that the Sixth Amendment requires a unanimous verdict to convict, so he would have no objection to that aspect of our holding today. Justice Powell reached a different result only by relying on a dual-track theory of incorporation that a majority of the Court had already rejected (and continues to reject). And to accept that reasoning as precedential, we would have to embrace a new and dubious proposition: that a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected.

Justice Alito dissented, joined by Chief Justice Roberts and Justice Kagan. They emphatically rejected this reading of Apodaca–with some SNL-inspired snark.

I begin with the question whether Apodaca was a precedent at all. It is remarkable that it is even necessary to address this question, but in Part IV–A of the principal opinion, three Justices take the position that Apodaca was never a precedent. The only truly fitting response to this argument is: "Really?"

Consider what it would mean if Apodaca was never a precedent. It would mean that the entire legal profession was fooled for the past 48 years. Believing that Apodaca was a precedent, the courts of Louisiana and Oregon tried thousands of cases under rules allowing conviction by a vote of 11 to 1 or 10 to 2, and appellate courts in those States upheld these convictions based on Apodaca. But according to three Justices in the majority, these courts were deluded

Justice Sotomayor treats Apodaca as a precedent. As does Justice Kavanaugh. He offers this helpful headcount:

I join the introduction and Parts I, II–A, III, and IV–B–1 of JUSTICE GORSUCH's opinion for the Court. The remainder of JUSTICE GORSUCH's opinion does not command a majority. That point is important with respect to Part IV–A, which only three Justices have joined. It appears that six Justices of the Court treat the result in Apodaca as a precedent and therefore do not subscribe to the analysis in PartIV–A of JUSTICE GORSUCH's opinion.

Justices Gorsuch, Kavanaugh, and Alito hold very different conceptions of "precedent." Justice Gorsuch provides the clearest illustration of his theory in this passage:

It is usually a judicial decision's reasoning—its ratio decidendi—that allows it to have life and effect in the disposition of future cases. As this Court has repeatedly explained in the context of summary affirmances, "'unexplicated'" decisions may "'settl[e] the issues for the parties, [but they are] not to be read as a renunciation by this Court of doctrines previously announced in our opinions.'" Much the same may be said here. Apodaca's judgment line resolved that case for the parties in that case. It is binding in that sense. But stripped from any reasoning, its judgment alone cannot be read to repudiate this Court's repeated pre-existing teachings on the Sixth and Fourteenth Amendments.

I need to give this analysis some more thought. The unique nature of the 4-1-4 split in Apodaca may tweak the nature of stare decisis, beyond the usual fights over the Marks rule. Gorsuch is analyzing this issue at a different level than his colleagues. His approach may not have much support in the Court's precedents–Alito gets the better of the argument on this point. But Gorsuch's reasoning very well may be correct as a matter of first principles.

Why did Justices Ginsburg and Breyer join Gorsuch's pensive discourse in Ramos on ratio decidendi and obiter dicta? I don't know. Really, I'm flummoxed here. If they dissented from Part IV-A, the holding would have been unaffected.

Indeed, Gorsuch's conception of plurality opinions severely undercuts the precedential value of Casey. Of course, Ramos itself is a plurality opinion, and–under Gorsuch's own theory–is not entitled to any precedential weight.

Alito gets in one final dig on this point:

What is the majority's justification for overruling Apodaca? With no apparent appreciation of the irony, today's majority, which is divided into four separate camps,17 criticizes the Apodaca majority as "badly fractured." But many important decisions currently regarded as precedents were decided without an opinion of the Court.18 Does the majority mean to suggest that all such precedents are fair game?

Justice Gorsuch also waxed on the value of precedent in Monday's far-less-sexy case, Thryv, Inc. v. Click-To-Call Technologies, LP.

It's not surprising that litigants would invite us to overread dicta or overlook an unfavorable precedent. What is surprising is that the Court would accept the invitation.In ''cases involving property," after all, "considerations favoring stare decisis are at their acme." Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 457 (2015) (internal quotation marks omitted). And we are often reminded that "stare decisis carries enhanced force when a decision . . . interprets a statute." Id., at 456. But rather than searching for the kind of "superspecial justification," id., at 458, this Court supposedly requires to overrule a precedent like SAS Institute, today's majority quibbles with a few sentencesand quietly walks away. If, as some have worried, "[e]achtime the Court overrules a case, the Court . . . cause[s] thepublic to become increasingly uncertain about which casesthe Court will overrule," Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___ (2019) (slip op., at 13), (BREYER, J., dissenting), one can only imagine what a judicial shrug of the shoulders like this might yield.

Justice Ginsburg wrote the majority in Thryv. She responded to Gorsuch's claim about stare decisis.

The dissent does not consider itself bound by Cuozzo's conclusion that §314(d) bars appeal of "questions that are closely tied to the application and interpretation of statutes related to the Patent Office's decision to initiate inter partes review," 579 U. S., at___ (slip op., at 11). According to the dissent, that statement is dicta later repudiated in SAS Institute Inc. v. Iancu, 584 U. S. ___ (2018). . . . . Cuozzo's recognition that §314(d) can bar challenges rooted in provisions other than §314(a) was hardly "dicta," post, at 16—it was the Court's holding. And SAS Institute purported to adhere to Cuozzo, not to overrule it. 584 U. S., at ___–___ (slip op., at 13–14). The Court in SAS Institute said, specifically, that it discerned "nothing in . . . Cuozzo" inconsistent with its conclusion. Id., at ___ (slip op.,at 14).

We do not so lightly treat our determinations as dicta and our decisions as overruling others sub silentio. Nor can we countenance the dissent's dangerous insinuation that today's decision is not "really" binding precedent. Post, at 17–18 ("[W]ho can say?"); post, at 18 ("Litigants and lower courts alike will just have to wait and see.").


2. Can Ramos be applied retroactively on collateral review?

Part IV-B-2 is joined by Justices Gorsuch, Ginsburg, Breyer, and Sotomayor. This section considered whether prisoners may "challenge their nonunanimous convictions through collateral (i.e., habeas) review." This analysis turns on Teague v. Lane (1989). Gorsuch explains:

Under Teague v. Lane, newly recognized rules of criminal procedure do not normally apply in collateral review. True, Teague left open the possibility of an exception for "watershed rules" "implicat[ing] the fundamental fairness [and accuracy] of the trial." But, as this language suggests, Teague's test is a demanding one, so much so that this Court has yet to announce a new rule of criminal procedure capable of meeting it. And the test is demanding by design, expressly calibrated to address the reliance interests States have in the finality of their criminal judgments

Does Ramos qualify as a "watershed rule"? The plurality doesn't definitively answer this question. Gorusch leans towards "no," but the issue is unresolved.  Gorsuch also says, correctly, that Teague is not "even before us." This question can be resolved in a "future case where the parties will have a chance to brief the issue and we will benefit from their adversarial presentation."

Justice Kavanaugh dissented from IV-B-2. He would have decided that Teague test was not satisfied.

The new rule announced today—namely, that state criminal juries must be unanimous—does not fall within either of those two narrow Teague exceptions and therefore, as a matter of federal law, should not apply retroactively on habeas corpus review.

The dissent critiques Gorsuch's "evasive" approach to Teague:

The majority's response to this possibility is evasive. It begins by hinting that today's decision will not apply on collateral review under the framework adopted in Teague v. Lane, 489 U. S. 288, 315 (1989) (plurality opinion). . . .

Noting that we have never found a new rule of criminal procedure to qualify as "watershed," theCourt hints that the decision in this case is likely to meetthe same fate.

But having feinted in this direction, the Court quickly changes course and says that the application of today's decision to prisoners whose appeals have ended should not concern us. Ante, at 23–24. That question, we are told, will be decided in a later case. Ibid.

The majority cannot have it both ways. As long as retroactive application on collateral review remains a real possibility, the crushing burden that this would entail cannot be ignored. And while it is true that this Court has been chary in recognizing new watershed rules, it is by no means clear that Teague will preclude the application of today's decision on collateral review.

Teague applies only to a "new rule," and the positions taken by some in the majority may lead to the conclusion that the rule announced today is an old rule.

The dissent also faults Justice Kavanaugh for reaching an issue that wasn't even briefed.

Two other Justices in the majority acknowledge that Apodaca was a precedent and thus would presumably regard today's decision as a "new rule," but the question remains whether today's decision qualifies as a "watershed rule." JUSTICE KAVANAUGH concludes that it does not and all but decides—without briefing or argument—that the decision will not apply retroactively on federal collateral review and similarly that there will be no successful claims of ineffective assistance of counsel for failing to challenge

I don't think there are five votes for retroactivity, but under the logic of Gorsuch's analysis, Teague very well may be satisfied.

3. What other "functionalist" decisions are now in jeopardy?

In modern legal discourse, the label "formalist" is a pejorative–wooden, rigid, strict, etc. I always thought Justices viewed themselves as pragmatic, or "functionalist." Surely Justice Breyer approaches the world this way. Yet in Ramos, Justice Gorsuch derides "functionalist" reasoning. Huzzah!

Consider this critique of Apodaca:

But to see the dangers of Louisiana's overwise approach, there's no need to look any further than Apodaca itself. There, four Justices, pursuing the functionalist approach Louisiana espouses, began by describing the "'essential'" benefit of a jury trial as "'the interposition . . . of the commonsense judgment of a group of laymen'" between the defendant and the possibility of an "'overzealous prosecutor.'"41 And measured against that muddy yardstick, they quickly concluded that requiring 12 rather than 10 votes to convict offers no meaningful improvement.42 Meanwhile, these Justices argued, States have good and important reasons for dispensing with unanimity, such as seeking to reduce the rate of hung juries.43

Who can profess confidence in a breezy cost-benefit analysis like that?

I have no clue how Stephen Breyer put his name to his analysis. His jurisprudence is measured by "muddy yardsticks[s]." He breathes "breezy cost-benefit analysis." Justice Breyer must have donned a paper bag over his N95 mask for this joinder.

Even Justice Sotomayor could not bear this analysis. She wrote in her concurrence:

Rather, Apodaca v. Oregon, 406 U. S. 464 (1972), was on shaky ground from the start. That was not because of the functionalist analysis of that Court's plurality: Reasonable minds have disagreed over time—and continue to disagree—about the best mode of constitutional interpretation. That the plurality in Apodaca used different interpretive tools from the majority here is not a reason on its own to discard precedent.

In dissent, Justice Alito queries what other "functionalist" decisions are on the chopping block. Most of the Criminal Procedure cases from the 1960s and 1970s are purely "functionalist." He writes:

Fourth, it is hard to know what to make of the functionalist charge. One Member of the majority explicitly disavows this criticism, see ante, at 2 (SOTOMAYOR, J., concurring in part), and it is most unlikely that all the Justices in the majority are ready to label all functionalist decisions as poorly reasoned. Most of the landmark criminal procedure decisions from roughly Apodaca's time fall into that category. See Mapp v. Ohio, 367 U. S. 643, 654 (1961) (Fourth Amendment); Miranda v. Arizona, 384 U. S. 436, 444 (1966) (Fifth Amendment); Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963) (Sixth Amendment); Furman v. Georgia, 408 U. S. 238, 239 (1972) (per curiam) (Eighth Amendment).25 Are they all now up for grabs?

Alito also queries whether another one of Justice White's "functionalist" decisions may be in doubt:

As I have explained, see supra, at 15, the Apodaca plurality's reasoning was based on the same fundamental mode of analysis as that in Williams [v. Florida], 399 U. S. 78, which had held just two years earlier that the Sixth Amendment did not constitutionalize the common law's requirement that a jury have 12 members. Although only one State, Oregon, now permits non-unanimous verdicts, many more allow six-person juries.29 Repudiating the reasoning of Apodaca will almost certainly prompt calls to overrule Williams.

And what about Hurtado v. California? Should the right to grand jury indictment be incorporated? Alito writes:

In Hurtado v. California, 110 U. S. 516, 538 (1884), the Court held that the Grand Jury Clause does not bind the States and that they may substitute preliminary hearings at which the decision to allow a prosecution to go forward is made by a judge rather than a defendant's peers. That decision was based on reasoning that is not easy to distinguish from Justice Powell's in Apodaca. Hurtado remains good law and is critically important to the 28 States that allow a defendant to be prosecuted for a felony without a grand jury indictment.28 If we took the same approach to the Hurtado question that the majority takes in this case, the holding in that case could be called into question.

I have long thought that Justice Harlan's dissent was correct in that case.

4. How far will Justice Kagan ride the stare decisis train?

In recent years, Justice Kagan has made stare decisis the center piece of her jurisprudence. In opinion after opinion, she extolls the value of precedent. In Allen v. Cooper, she stood by the Rehnquist Court's sovereign immunity precedents, even though she likely disagrees with them. Last term, she stood by precedent in Franchise Tax Board v. Hyatt and Knick v. Township of Scott. And so on.

We can speculate about her end game: by maintaining a principled approach to precedent, when the time comes, perhaps her conservative colleagues will as well. Of course, I am talking about Roe. Will her strategy work? I'm skeptical. Indeed, in Ramos Justice Alito and Chief Justice Roberts expressly disagreed with Kagan's paean to stare decisis. Here is the discussion from Part IV-D, which Kagan did not join.

The reliance in this case far outstrips that asserted in recent cases in which past precedents were overruled. Last Term, when we overturned two past decisions, there were strenuous dissents voicing fears about the future of stare decisis. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___ (2019) (BREYER, J., dissenting); Knick v. Township of Scott, 588 U. S. ___, ___ (2019) (KAGAN, J., dissenting). Yet in neither of those cases was there reliance like that present here. In Franchise Tax Board, the dissent claimed only the airiest sort of reliance, the public's expectation that pastdecisions would remain on the books. 587 U. S., at ___–___ (opinion of BREYER, J.) (slip op., at 12–13). And in Knick, the dissent disclaimed any reliance at all. 588 U. S., at ___ (opinion of KAGAN, J.) (slip op., at 17).

Alito and Roberts could have omitted that discussion to keep Kagan on board. But they didn't.

Justice Kavanaugh also gently chided some of his progressive colleagues for overturning precedent in some cases.

The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents. All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions. Indeed, in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents. See, e.g., Knick v. Township of Scott, 588 U. S. ___ (2019); Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___ (2019); Janus v. State, County, and Municipal Employees, 585 U. S. ___ (2018); Hurst v. Florida, 577 U. S. ___ (2016); Obergefell v. Hodges, 576 U. S. 644 (2015); Johnson v. United States, 576 U. S. 591 (2015); Alleyne v. United States, 570 U. S. 99 (2013); see also Baude, Precedent and Discretion, 2020 S. Ct. Rev. 1, 4 (forthcoming) ("Nobody on the Court believes in absolute stare decisis").

Kudos to Will Baude on the citation.

And of course, Justice Thomas reiterated his view of stare decisis: none at all.

I also note that, under my approach to stare decisis, there is no need to decide which reliance interests are important enough to save an incorrect precedent. I doubt that this question is susceptible of principled resolution in this case, compare ante, at 22–26 (principal opinion), with ante, at 3 (SOTOMAYOR, J., concurring); ante, at 15–17 (KAVANAUGH, J., concurring); and post, at 19–26 (ALITO, J., dissenting), or in any other case for that matter, see, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 457–458 (2015); Lawrence v. Texas, 539 U. S. 558, 577 (2003); Dickerson v. United States, 530 U. S. 428, 443 (2000); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 855–856 (1992).

5. How awkward will the next Justice White clerk reunion be?

In Ramos, Justice Gorsuch drags his former boss. He heavily criticizes Justice White "functionalist"–that is, non-originalist-jurisprudence. Gorsuch also faults Justice White's plurality decision for not considering the "racist origins" of the non-unanimous jury rule.

Start with the quality of the reasoning. Whether we look to the plurality opinion or Justice Powell's separate concurrence, Apodaca was gravely mistaken; again, no Member of the Court today defends either as rightly decided. Without repeating what we've already explained in detail, it's just an implacable fact that the plurality spent almost no time grappling with the historical meaning of the Sixth Amendment's jury trial right, this Court's long-repeated statements that it demands unanimity, or the racist origins of Louisiana's and Oregon's laws. Instead, the plurality subjected the Constitution's jury trial right to an incomplete functionalist analysis of its own creation for which it spared one paragraph. And, of course, five Justices expressly rejected the plurality's conclusion that the Sixth Amendment does not require unanimity. Meanwhile, Justice Powell refused to follow this Court's incorporation precedents. Nine Justices (including Justice Powell) recognized this for what it was; eight called it an error.

It falls to Justice Alito to defend Whizzer White!

First, it is quite unfair to criticize Justice White for not engaging in a detailed discussion of the original meaning of the Sixth Amendment jury-trial right since he had already done that just two years before in his opinion for the Court in Williams v. Florida, 399 U. S. 78, 92–100 (1970). In Williams, after examining that history, he concluded that the Sixth Amendment did not incorporate every feature of the common-law right (a conclusion that the majority, by the way, does not dispute). And in Apodaca, he built on the analysis in Williams. Accordingly, there was no need to repeat what had been said before.

Second, it is similarly unfair to criticize Justice White for not discussing the prior decisions that commented on jury unanimity. None of those decisions went beyond saying that this was a feature of the common-law right or cursorilystating that unanimity was required.24 And as noted, Williams had already held that the Sixth Amendment did not preserve all aspects of the common-law right.

Third, the failure of Justice White (and Justice Powell) to take into account the supposedly racist origins of the Louisiana and Oregon laws should not be counted as a defect for the reasons already discussed….

Fifth, it is not accurate to say that Justice White based his conclusion on a cost-benefit analysis of requiring jury unanimity. His point, rather, was that what the Court had already identified as the fundamental purpose of the jury-trial right was not undermined by allowing a verdict of 11 to 1 or 10 to 2.

I cannot say that I would have agreed either with Justice White's analysis or his bottom line in Apodaca if I had sat on the Court at that time, but the majority's harsh criticism of his opinion is unwarranted.

I appreciate that Gorsuch is willing to attack his former boss. He shows a real streak of independence. I can't imagine Chief Justice Roberts ever writing about Chief Justice Rehnquist this way; or Justice Kavanaugh writing about Justice Kennedy. The next White clerk reunion will be awkward.

Justice Gorsuch offers this anecdote about his old boss, Justice White, in his new book:

THESE DAYS I SOMETIMES find myself thinking back a quarter century to a day when, as a law clerk, I was walking with my boss, Justice Byron White, along the ground-floor hallway of the Supreme Court. As we passed portrait after portrait of former justices, he asked me how many of them I could name. As much as I wanted to impress the boss, I admitted the answer was about half. The justice surprised me when he said, "Me too. We'll all be forgotten soon enough." At the time, I didn't realize what he was telling me. Justice White was not just one of the most famous men of his day but one of the most impressive. He was a World War II hero. The highest-paid professional football player of his day. A Rhodes Scholar. Before joining the bench, he served as John Kennedy's deputy attorney general and helped desegregate southern schools. He never cared a fig when others criticized him—as many did, harshly and often, sometimes for supposedly "straying" from results they expected of him, and at other times for doing exactly what they knew he would do. How could anyone forget him? It seemed to me impossible. Justice White's portrait now hangs in the hallway with the others. Every time I walk by I see visitors standing before it wondering who he was. The truth is, Justice White was right and we are all forgotten soon enough.

Justice White's legacy has mostly faded from modern discussions of constitutional law. Most law students today will have no idea who Justice White was. Our casebook features only a handful of White majority opinions: Washington v. Davis, Bowers v. Hardwick, and Cleburne v. Cleburne Living Center. We have several of his dissents: Roe v. Wade, Nixon v. Fitzgerald, INS v. Chadha, and New York v. U.S.

And he was on the Court for three decades!

I can make one prediction: Ramos will not last long in casebooks. It is far too fragmented to serve as a teaching tool. I didn't even bother editing it for our supplement. Not worth the effort.

NEXT: Grandchildren in Sandboxes, Elephants in Watering Holes

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  1. Does anyone else find this somewhat distasteful and juvenile?

    Why all this peacock-like presentation?

    They have life tenure so they don’t have to impress anyone and are free to make their decisions using whatever criteria they like (e.g. whether the one dissent in Apodaca sets a precedent).

    1. As a layperson, I too have wondered why they choose to criticize each other so publicly.

    2. “Does anyone else find this somewhat distasteful and juvenile?”


  2. Justice Alito referred to something as “supposedly” racist? I suppose that constitutes progress. Inconsequential progress, but progress.

    1. Justice Alito did join Justice Kavanaugh’s majority opinion last term in Flowers v. Mississippi.

      1. Good point, to Justice Alito’s credit. Just two justices were on the wrong side of progress and justice in that one, and Justice Alito was not among them.

  3. One justice can set precedent.
    Three isn’t enough to overturn it.
    Correcting past wrongs is more “costly” than the original wrong, depending on the issue at hand.
    Some use one case to set up a ruling in another but only sometimes.
    Does this ruling increase your faith in the institution? Not so much for me.

    1. IANAL but this comes remarkably close to disputing how many angels can dance on the head of a pin. Instead of arguing constitutional points, they seem to be arguing points several steps removed from the Constitution: precedent piled on precedent piled on precedent, until the connection to the Constitution has been lost in the fog.

      And just as school boards and home owner associations seem to have the pettiest cliques arguing over the pettiest disputes in the pettiest manner, so here much of what has been quoted seems some of the pettiest sniping and elbowing I can remember.

    2. “Does this ruling increase your faith in the institution?”

      The last time Gallup checked (in September), the Supreme Court supposedly had a 54% approval rating, which I think is better than for other government institutions.


      But I don’t think this is necessarily a good thing. I suspect it’s because lots of the public have a general idea of the Court as this nonpartisan body which decides important questions. It’s unlikely that most of the 54% are aware of what they would consider inside-baseball nerd stuff. To be more precise, I don’t think that most of the 54% who approve of “the way the Supreme Court is handling its job” actually know the specifics of what the Court has been doing. They would be hard-put even to name the Justices, much less know their views on stare decisis or cheer the learned insults they lob at each other.

      I’m not criticizing this rational ignorance, I’m saying that it’s possible to overestimate the importance in public confidence in the court.

  4. 4. How far will Justice Kagan ride the stare decisis train?

    I suspect she’ll get off one stop before the train reaches the Heller Depot in Second Amendmentville.

  5. I *still* do not understand how this is a test run for reconsidering Roe, as pundits like Prof. Blackman keep saying but not explaining. Do any of us believe Gorsuch and Alito of all people will disagree about overturning Roe? Or that Alito will uphold Roe because of stare decisis? I don’t see it. I fully admit I may be missing the point Blackman and others are making about this case being a test run for Roe/Casey; that’s why I wish they’d explain the point they’re trying to make.

    I think it’s at least as likely that Gorsuch is (as some have speculated) an arrogant narcissist that really rubs his fellow justices the wrong way. Heck, he may rub the other conservatives the wrong way as much as Sotomayor, or maybe even more. I also wonder whether Gorsuch broke left on the transgender case, and that the hard feelings evident in the opinions in this case partly stem from that. Admittedly, that last part is just a total guess.

      1. Harris Funeral Homes.
        I just Googled “Supreme Court transgender case” to make sure I had the name right for this reply, and the NPR article on the October oral argument contained the following:

        Justice Neil Gorsuch said the text of Title VII of the 1964 Civil Rights Act, which bars discrimination “because of sex,” or “on the basis of sex,” appears to favor the plaintiffs in the case, but he wondered whether the court should also consider “the massive social upheaval” that could follow a ruling in favor of LGBTQ workers. The court’s conservative justices, who are in a majority, appeared somewhat skeptical of the arguments of the lawyers for the LGBTQ workers.

        Justice Samuel Alito, another of the court’s conservatives, said if the court decided to update the statute, it might as well “just be a legislature.”

      2. I’ll also note that Ramos was argued October 7, and Harris Funeral Homes October 8, meaning the votes on the cases would have occurred at the same conference, if I understand SCOTUS internal procedure correctly.

    1. “I *still* do not understand how this is a test run for reconsidering Roe, as pundits like Prof. Blackman keep saying but not explaining.”

      My hypothesis is the justices are preparing for having their prior remarks on stare decisis thrown in their faces by the other side in an abortion decision. They all have, I presume, histories of rejecting some precedents and adhering to others, and whichever side of abortion they come out on, the other side will mine their previous statements on precedent in search of “gotcha” quotes.

      So this is a chance to put their attitudes toward precedent in the record, and later when the question of precedent comes up in an abortion case, they can say, “I I explained in *Ramos*” yada yada.

  6. I think Justice Gorsuch is making more out of this than there is.

    Suppose a certain proposition of law requires establishing both A and B. 3 justices think A doesn’t hold. 2 think B doesn’t. 4 think both do.

    Then the holding of the court is that the proposition doesn’t hold, because a majority agree that either A or B doesn’t hold, even though there’s no agreement on which one, and even though there’s majority support for each proposition individually. And this holding is precedent.

    Sometimes it’s possible to find a narrowest ground supporting a judgment. Sometimes it isn’t, because justices’ reasoning contradicts each other. No matter. The holding is still a precedent.

  7. Interesting piece, worthwhile points.

    I would hive off the Crim Pro closed container / arms reach / automotive search jurisprudence from the general discussion of stare rationibus decisis; the reason would be that there is always a fixed constellation of law testing the changing circumstances of the facts. Since it’s always the same reasoning, the functionalist (materialist) vote on the factual circumstances is ultimately doctrinal (ideational) as well.

    The speculation on Teague in the opinions struck me as uncomfortably meta. And the question of whether Apodaca is precedential is dicta, if there are votes to overrule such precedent, so long as those votes aren’t conditioned on Apodaca being precedent. (And whether precedent should control the role of precedent is questionable — would we allow the Supreme Court to hold that Justinian always prevails over the common-law reporters?)

    This whole debate is a relatively new one. Until the advent of widespread commercial print reporters at the end of the 16c, precedent didn’t control — it was the received wisdom as reflected in precedent, speeches at the Inns, etc. (JH Baker has written extensively on this.) With commercial reporters comes the effrontery of citation by counsel, but the UK benches are fragmented, and we arguably don’t get a major unified national judiciary holding the view that printed precedent is binding and citable until the emergence of the present American judiciary at the end of the 19th c.

    Mr. D.

    1. I believe the issue of whether Apodaca was binding precedent that concerns Alito-plus-5 (or at least Alito-plus-4) is whether Oregon and Louisiana, and the federal courts in each, will see a flood of ineffective assistance of counsel claims for not raising the issue at trial or on direct appeal, or other collateral attacks on the judgment (even if SCOTUS ultimately shot them down). But since most criminal cases end in plea deals, and since I assume that most criminal trials in those states that ended in a conviction involved a unanimous jury (even if not required at the time), I’m not sure there are that many cases this could affect (but I’d love to see some estimates). Further, since a majority of the court expressly does treat the case as precedent, lower courts should reject the “not precedent” claim. But I’m not a prosecutor or criminal defense attorney, so I may be missing a key issue.

      1. Not legal advice, but my recollection of Teague and a quick skim suggests that the Teague definition of “new rule’ is one not dictated by precedent; I don’t think that you would have to prove a hard back-track to make an argument for retroactivity to cases pending on collateral review at the time of decision. I might be (and quite likely am) wrong about that. Likely something post-Teague and after my Federal Courts seminar speaks to the contrary. (/not legal advice)

        Mr. D.

  8. I don’t see this as a prelude to Roe. Roe had a single majority opinion, authored by Justice Blackmun, supporting a specific line of reasoning. Powell and Burger’s concurrences were not necessary to form a majority and hence are not part of the Roe outcome.

    What to do when members of a split majority have Incompatible reasoning is a completely different subject, not relevant to what happened in that case.

  9. I’m not a lawyer so much of the above discussion (and comments) go way over my head. However, reading the text of the Sixth Amendment I don’t see any support for this statement.

    “the Sixth Amendment requires a unanimous verdict to convict”

    What am I missing, if anyone would care to chime in and educate us?

    1. The issue (for the originalist justices anyway) is whether the original public meaning of the Sixth Amendment’s guarantee of a trial by “an impartial jury” included a unanimity requirement.

  10. “[T]here is no need to decide which reliance interests are important enough to save an incorrect precedent.”

    What Justice Thomas said.

  11. Kagan relies on precedent so much because she is not particularly intelligent and cannot articulate or defend her (somewhat inconsistent) policy positions.

    An intelligent justice would rely on precedent and explain why that precedent is correct, even after intervening years, legal development, SCOTUS decisions, and lower court decisions.

    Ginsburg relies on precedent when it suits her because she is a partisan hack and should have been impeached from the Court in 1996.

    1. Really uninformed comment (ironically). I’m as conservative as most (including on social issues), but I think it’s impossible to read Kagan’s opinions or hear her at oral argument and not respect her intelligence and her superb writing and argument abilities. RBG is no intellectual lightweight either (though I disagree with her positions outside the civil procedure context in most cases).

      As for partisanship, I think all of the justices have pretty clear biases and priors — like all of us. I don’t think there’s a realistic way to avoid those things affecting the outcome they reach in controversial cases.

      1. They all have biases, but IMO Ginsburg, far more than other other justice, will ignore the law in order to decide in favor of her public policy preferences. In fact, she’s been open about it. To me that makes her a partisan hack.

  12. This case is a good example why the tradition of signed opinions should go.

    All this tea leave reading are like the Roman auguries. Great for law professors I guess but no one else.

  13. I do not follow the take that Ramos isn’t going to be worth teaching. I think it is the beginnings of a fundamental shift in jurisprudence and constitutional law at the Supreme Court level. Scholars are going to look back at this decision to start defining when it began. This is just the beginning.

    1. I’m interested what you are predicting. It seems that Gorsuch may be trying to break new ground (though I’m still confused as to what exactly that new ground is), but he only got two other votes on the precedent issue. What type of seismic shift has Ramos started? (I’m generally interested for your thoughts, not being facetious.)

      Also, ever hear of the 50s-early 60s Rock n Roll group Jimmy Dane and His Great Danes? Wasn’t sure if your screen name was a homage to them.

      1. To me it is clear that the Court is spending a lot of time on precedent and the question of overruling it. This is transparent in the competing concepts of precedent addressed in Ramos. If discussions of stare decisis are occurring in private conferences Justices must be giving some thought to not only this docket but the ones in years to come. And that most likely includes an eye to overruling disliked decisions (on every side of the judicial spectrum).

  14. Indeed, Gorsuch’s conception of plurality opinions severely undercuts the precedential value of Casey. Of course, Ramos itself is a plurality opinion, and–under Gorsuch’s own theory–is not entitled to any precedential weight.

    Is this accurate? White’s opinion in Apodaca was joined by Burger, Blackmun, and Rehnquist (4 justices), with Powell writing separately and concurring in the judgment reached by White and the other 3 members. White’s opinion in that case consists of an Intro, Section I, Section II, Section III, and Section IV. When the “opinion” is broken down into sections, none of the sections received more than 4 votes.

    In Ramos, Gorsuch’s opinion contains 9 sections (including the introduction), with 5 sections being joined by 4 other justices. So, while Gorsuch’s opinion when taken as a whole does not have 4 additional votes, sections within the opinion are supported by a majority of the court. This seems quite different from White’s opinion in Apodaca, where none of the opinion’s sections obtained the agreement of 5 members

    I can certainly see how Section IV.A of Gorsuch’s opinion would not have precedential value as only 2 other justices agreed with it. But Blackman’s claim that Ramos itself is a plurality opinion and therefore is not precedent under Gorsuch’s reasoning on precedent (in the context of Apodaca) doesn’t seem accurate given a majority concurrence in certain sections of Gorsuch’s opinion.

    Is an opinion only precedential if every section of it is joined by a majority of of justices?

  15. We have several of his dissents:.. INS v. Chadha

    Justice White’s dissent in Chadha has proved to be prescient, and every one of his parade of horribles has come true. It has ushered in the age of the imperial Presidency, where effectively the President can do absolutely anything (and claim it is an emergency power) unless two-thirds of the House *and* two-thirds of the Senate override him. Trump has stretched new bounds, to be sure, but all his post Chadha predecessors helped build it.

  16. This is nuts. They all agree that the 6th amendment requires a unanimous jury but they would rather lynch a thousand (100,000?) blacks than risk undermining abortion.

    1. Are you really suggesting that interpreting the 6th to NOT require unanimity is akin to lynching? I tend to think that it is a stretch to interpret the 6th that way (as mentioned earlier, I am not a lawyer but a well read and educated individual). I assume that the unanimity requirement comes from a reading of the words “impartial jury” to mean one that unanimously agrees, which I find a bit odd but I don’t see how an alternative reading of impartiality as “not biased against the individual” couldn’t just as easily hold up. In which case there is no lynching. I might have nothing against you as a person/race/class/etc but still think that smashing someone’s window was wrong and convict you on a belief in the evidence. Did I “lynch” you just because someone else with a similar lack of bias thought there wasn’t enough evidence and voted to acquit?

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