The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

From Ramos to Edwards in 13 months

Ramos v. Louisiana held that the 6th Amendment protects the right to a unanimous jury. And Edwards v. Vannoy held that right should not apply retroactively.


In April 2020, the Supreme Court decided Ramos v. Louisiana. A sharply-divided Court held that the the Constitution requires state jury convictions to be unanimous. But the Court left open the question of retroactivity. Justice Gorsuch's majority opinion explained that the Teague 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 in part. He found that the Teague exception was not satisfied. Thus, Ramos would not be satisfied. At the time, I wrote "I don't think there are five votes for retroactivity, but under the logic of Gorsuch's analysis, Teague very well may be satisfied."

Thirteen months later, the Court resolved this issue in Edwards v. Vannoy: The Teague exception is not satisfied, and there are not five votes for retroactivity. Justice Kavanaugh, the Ramos dissenter, wrote the majority opinion for a 5-4 Court. And Justice Gorsuch, the Ramos writer, agreed with Justice Kavanaugh. Mr. Ramos got lucky. Mr. Edwards, not so much.

Here is the Justice Kavanaugh's summary:

This Court has repeatedly stated that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review. See Teague v. Lane, 489 U. S. 288, 310 (1989) (plurality opinion); see also Linkletter v. Walker, 381 U. S. 618, 639–640, and n. 20 (1965). Indeed, in the 32 years since Teague underscored that principle, this Court has announced many important new rules of criminal procedure. But the Court has not applied any of those new rules retroactively on federal collateral review. See, e.g., Whorton v. Bockting, 549U. S. 406, 421 (2007) (Confrontation Clause rule recognized in Crawford v. Washington, 541 U. S. 36 (2004), does not apply retroactively). And for decades before Teague, the Court also regularly declined to apply new rules retroactively, including on federal collateral review. See, e.g., DeStefano v. Woods, 392 U. S. 631, 635 (1968) (per curiam)(jury-trial rule recognized in Duncan v. Louisiana, 391U. S. 145 (1968), does not apply retroactively).

In light of the Court's well-settled retroactivity doctrine, we conclude that the Ramos jury-unanimity rule likewise does not apply retroactively on federal collateral review. We therefore affirm the judgment of the U. S. Court of Appeals for the Fifth Circuit.

Justice Kagan wrote the dissent for her Justices Breyer and Sotomayor. Only one year earlier, she dissented in Ramos. But now that Ramos is the law, Justice Kagan would stand by this new precedent. She wrote:

I dissented in Ramos precisely because of its abandonment of stare decisis. See 590 U. S., at ___−___ (slip op., at 5–9) (ALITO, J., dissenting); see also Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455 (2015) ("Respecting stare decisis means sticking to some wrong decisions"). Now that Ramos is the law, stare decisis is on its side. I take the decision on its own terms, and give it all the consequence it deserves 

Justice Kagan was in rare form. I'll have more to say about the Kagan dissent in another post.