Ramos v. Louisiana

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
RAMOS v. LOUISIANA
CERTIORARI TO THE COURT OF APPEAL OF LOUISIANA,
FOURTH CIRCUIT
No. 18–5924. Argued October 7, 2019—Decided April 20, 2020
In 48 States and federal court, a single juror’s vote to acquit is enough to
prevent a conviction. But two States, Louisiana and Oregon, have long
punished people based on 10-to-2 verdicts. In this case, petitioner
Evangelisto Ramos was convicted of a serious crime in a Louisiana
court by a 10-to-2 jury verdict. Instead of the mistrial he would have
received almost anywhere else, Ramos was sentenced to life without
parole. He contests his conviction by a nonunanimous jury as an un-
constitutional denial of the Sixth Amendment right to a jury trial.
Held: The judgment is reversed.
2016–1199 (La. App. 4 Cir. 11/2/17), 231 So. 3d 44, reversed.
JUSTICE GORSUCH delivered the opinion of the Court with respect to
Parts I, II–A, III, and IV–B–1, concluding that the Sixth Amendment
right to a jury trial—as incorporated against the States by way of the
Fourteenth Amendment—requires a unanimous verdict to convict a
defendant of a serious offense. Pp. 3–9, 11–15, 20–23.
(a) The Constitution’s text and structure clearly indicate that the
Sixth Amendment term “trial by an impartial jury” carries with it some
meaning about the content and requirements of a jury trial. One such
requirement is that a jury must reach a unanimous verdict in order to
convict. Juror unanimity emerged as a vital common law right in 14th-
century England, appeared in the early American state constitutions,
and provided the backdrop against which the Sixth Amendment was
drafted and ratified. Postadoption treatises and 19th-century Ameri-
can legal treatises confirm this understanding. This Court has com-
mented on the Sixth Amendment’s unanimity requirement no fewer
than 13 times over more than 120 years, see, e.g., Thompson v. Utah,
170 U.S. 343, 351; Patton v. United States, 281 U.S. 276, 288, and has
2 RAMOS v. LOUISIANA
Syllabus
also explained that the Sixth Amendment right to a jury trial is incor-
porated against the States under the Fourteenth Amendment, Duncan
v. Louisiana, 391 U.S. 145, 148–150. Thus, if the jury trial right re-
quires a unanimous verdict in federal court, it requires no less in state
court. Pp. 3–7.
(b) Louisiana’s and Oregon’s unconventional schemes were first con-
fronted in Apodaca v. Oregon, 406 U.S. 404, and Johnson v. Louisiana,
406 U.S. 356, in a badly fractured set of opinions. A four-Justice plu-
rality, questioning whether unanimity serves an important “function”
in “contemporary society,” concluded that unanimity’s costs out-
weighed its benefits. Apodaca, 406 U.S., at 410. Four dissenting Jus-
tices recognized that the Sixth Amendment requires unanimity, and
that the guarantee is fully applicable against the States under the
Fourteenth Amendment. The remaining Justice, Justice Powell,
adopted a “dual-track” incorporation approach. He agreed that the
Sixth Amendment requires unanimity but believed that the Four-
teenth Amendment does not render this guarantee fully applicable
against the States—even though the dual-track incorporation ap-
proach had been rejected by the Court nearly a decade earlier, see Mal-
loy v. Hogan, 378 U.S. 1, 10–11. Pp. 7–9.
(c) The best Louisiana can suggest is that all of the Court’s prior
statements that the Sixth Amendment does require unanimity are
dicta. But the State offers no hint as to why the Court would walk
away from those statements now and does not dispute the fact that the
common law required unanimity. Instead, it argues that the Sixth
Amendment’s drafting history—in particular, that the original House
version’s explicit unanimity references were removed in the Senate
version—reveals the framer’s intent to leave this particular feature of
the common law behind. But that piece of drafting history could just
as easily support the inference that the language was removed as sur-
plusage because the right was so plainly understood to be included in
the right to trial by jury. Finally, the State invites the Court to per-
form a cost-benefit analysis on the historic features of common law
jury trials and to conclude that unanimity does not make the cut. The
dangers of that approach, however, can be seen in Apodaca, where the
plurality subjected the ancient guarantee of a unanimous jury verdict
to its own functionalist assessment. Pp. 11–15.
(d) Factors traditionally considered by the Court when determining
whether to preserve precedent on stare decisis grounds do not favor
upholding Apodaca. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S.
___, ___. Starting with the quality of Apodaca’s reasoning, the plural-
ity opinion and separate concurring opinion were gravely mistaken.
And Apodaca sits uneasily with 120 years of preceding case law. When
Cite as: 590 U. S. ____ (2020) 3
Syllabus
it comes to reliance interests, neither Louisiana nor Oregon claims any-
thing like the prospective economic, regulatory, or social disruption
litigants seeking to preserve precedent usually invoke. The fact that
Louisiana and Oregon may need to retry defendants convicted of felo-
nies by nonunanimous verdicts whose cases are still pending on direct
appeal will surely impose a cost, but new rules of criminal procedure
usually do, see, e.g., United States v. Booker, 543 U.S. 220, and prior
convictions in only two States are potentially affected here. Pp. 20–
23.
JUSTICE GORSUCH, joined by JUSTICE GINSBURG and JUSTICE BREYER,
concluded in Part IV–A that Apodaca lacks precedential force. Treat-
ing that case as precedential would require embracing the dubious
proposition that a single Justice writing only for himself has the au-
thority to bind this Court to already rejected propositions. No prior
case has made such a suggestion. Pp. 16–20.
JUSTICE GORSUCH, joined by JUSTICE GINSBURG, JUSTICE BREYER,
and JUSTICE SOTOMAYOR, concluded in Parts IV–B–2 and V that Loui-
siana’s and Oregon’s reliance interests in the security of their final
criminal judgments do not favor upholding Apodaca. Worries that de-
fendants whose appeals are already complete might seek to challenge
their nonunanimous convictions through collateral review are over-
stated. Cf. Teague v. Lane, 489 U.S. 288. Apodaca’s reliance interests
are not boosted by Louisiana’s recent decision to bar the use of non-
unanimous jury verdicts. A ruling for Louisiana would invite other
States to relax their own unanimity requirements, and Louisiana con-
tinues to allow nonunanimous verdicts for crimes committed before
2019. Pp. 23–26.
JUSTICE THOMAS concluded that Ramos’ felony conviction by a non-
unanimous jury is unconstitutional because the Sixth Amendment’s
protection against nonunanimous felony guilty verdicts applies
against the States through the Privileges or Immunities Clause of the
Fourteenth Amendment, not the Due Process Clause. Pp. 1–9.
GORSUCH, J., announced the judgment of the Court, and delivered the
opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in
which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an
opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG,
BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part
IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed
an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an
opinion concurring in part. THOMAS, J., filed an opinion concurring in
the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS,
C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.
Cite as: 590 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–5924
_________________
EVANGELISTO RAMOS, PETITIONER v. LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
OF LOUISIANA, FOURTH CIRCUIT
[April 20, 2020]
JUSTICE GORSUCH announced the judgment of the Court
and delivered the opinion of the Court with respect to Parts
I, II–A, III, and IV–B–1, an opinion with respect to Parts
II–B, IV–B–2, and V, in which JUSTICE GINSBURG, JUSTICE
BREYER, and JUSTICE SOTOMAYOR join, and an opinion with
respect to Part IV–A, in which JUSTICE GINSBURG and
JUSTICE BREYER join.
Accused of a serious crime, Evangelisto Ramos insisted
on his innocence and invoked his right to a jury trial. Even-
tually, 10 jurors found the evidence against him persuasive.
But a pair of jurors believed that the State of Louisiana had
failed to prove Mr. Ramos’s guilt beyond reasonable doubt;
they voted to acquit.
In 48 States and federal court, a single juror’s vote to ac-
quit is enough to prevent a conviction. But not in Louisi-
ana. Along with Oregon, Louisiana has long punished peo-
ple based on 10-to-2 verdicts like the one here. So instead
of the mistrial he would have received almost anywhere
else, Mr. Ramos was sentenced to life in prison without the
possibility of parole.
Why do Louisiana and Oregon allow nonunanimous con-
victions? Though it’s hard to say why these laws persist,
2 RAMOS v. LOUISIANA
Opinion of the Court
their origins are clear. Louisiana first endorsed nonunani-
mous verdicts for serious crimes at a constitutional conven-
tion in 1898. According to one committee chairman, the
avowed purpose of that convention was to “establish the su-
premacy of the white race,” and the resulting document in-
cluded many of the trappings of the Jim Crow era: a poll
tax, a combined literacy and property ownership test, and a
grandfather clause that in practice exempted white resi-
dents from the most onerous of these requirements.1
Nor was it only the prospect of African-Americans voting
that concerned the delegates. Just a week before the con-
vention, the U. S. Senate passed a resolution calling for an
investigation into whether Louisiana was systemically ex-
cluding African-Americans from juries.2 Seeking to avoid
unwanted national attention, and aware that this Court
would strike down any policy of overt discrimination
against African-American jurors as a violation of the Four-
teenth Amendment,3 the delegates sought to undermine
African-American participation on juries in another way.
With a careful eye on racial demographics, the convention
delegates sculpted a “facially race-neutral” rule permitting
10-to-2 verdicts in order “to ensure that African-American
juror service would be meaningless.”4
Adopted in the 1930s, Oregon’s rule permitting nonunan-
imous verdicts can be similarly traced to the rise of the Ku
Klux Klan and efforts to dilute “the influence of racial, eth-
nic, and religious minorities on Oregon juries.”5 In fact, no
——————
1 Official Journal of the Proceedings of the Constitutional Convention
of the State of Louisiana 374 (H. Hearsey ed. 1898); Eaton, The Suffrage
Clause in the New Constitution of Louisiana, 13 Harv. L. Rev. 279, 286–
287 (1899); Louisiana v. United States, 380 U.S. 145, 151–153 (1965).
2 See 31 Cong. Rec. 1019 (1898).
3 Strauder v. West Virginia, 100 U.S. 303, 310 (1880).
4 State v. Maxie, No. 13–CR–72522 (La. 11th Jud. Dist., Oct. 11, 2018),
App. 56–57; see also Frampton, The Jim Crow Jury, 71 Vand. L. Rev.
1593 (2018).
5 State v. Williams, No. 15–CR–58698 (C. C. Ore., Dec. 15, 2016), App.
Cite as: 590 U. S. ____ (2020) 3
Opinion of the Court
one before us contests any of this; courts in both Louisiana
and Oregon have frankly acknowledged that race was a mo-
tivating factor in the adoption of their States’ respective
nonunanimity rules.6
We took this case to decide whether the Sixth Amend-
ment right to a jury trial—as incorporated against the
States by way of the Fourteenth Amendment—requires a
unanimous verdict to convict a defendant of a serious of-
fense.7 Louisiana insists that this Court has never defini-
tively passed on the question and urges us to find its prac-
tice consistent with the Sixth Amendment. By contrast, the
dissent doesn’t try to defend Louisiana’s law on Sixth or
Fourteenth Amendment grounds; tacitly, it seems to admit
that the Constitution forbids States from using nonunani-
mous juries. Yet, unprompted by Louisiana, the dissent
suggests our precedent requires us to rule for the State any-
way. What explains all this? To answer the puzzle, it’s
necessary to say a bit more about the merits of the question
presented, the relevant precedent, and, at last, the conse-
quences that follow from saying what we know to be true.
I
The Sixth Amendment promises that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and dis-
trict wherein the crime shall have been committed, which
district shall have been previously ascertained by law.” The
Amendment goes on to preserve other rights for criminal
defendants but says nothing else about what a “trial by an
impartial jury” entails.
Still, the promise of a jury trial surely meant something—
——————
104.
6 Maxie, App. 82; Williams, App. 104.
7 Under existing precedent and consistent with a common law tradition
not at issue here, a defendant may be tried for certain “petty offenses”
without a jury. Cheff v. Schnackenberg, 384 U.S. 373, 379 (1966).
4 RAMOS v. LOUISIANA
Opinion of the Court
otherwise, there would have been no reason to write it
down. Nor would it have made any sense to spell out the
places from which jurors should be drawn if their powers as
jurors could be freely abridged by statute. Imagine a con-
stitution that allowed a “jury trial” to mean nothing but a
single person rubberstamping convictions without hearing
any evidence—but simultaneously insisting that the lone
juror come from a specific judicial district “previously ascer-
tained by law.” And if that’s not enough, imagine a consti-
tution that included the same hollow guarantee twice—not
only in the Sixth Amendment, but also in Article III.8 No:
The text and structure of the Constitution clearly suggest
that the term “trial by an impartial jury” carried with it
some meaning about the content and requirements of a jury
trial.
One of these requirements was unanimity. Wherever we
might look to determine what the term “trial by an impar-
tial jury trial” meant at the time of the Sixth Amendment’s
adoption—whether it’s the common law, state practices in
the founding era, or opinions and treatises written soon af-
terward—the answer is unmistakable. A jury must reach a
unanimous verdict in order to convict.
The requirement of juror unanimity emerged in 14th-
century England and was soon accepted as a vital right pro-
tected by the common law.9 As Blackstone explained, no
person could be found guilty of a serious crime unless “the
truth of every accusation . . . should . . . be confirmed by the
unanimous suffrage of twelve of his equals and neighbors,
indifferently chosen, and superior to all suspicion.”10 A
——————
8 See Art. III, §2.
9 See J. Thayer, Evidence at the Common Law 86–90 (1898) (Thayer);
W. Forsyth, History of Trial by Jury 200 (J. Morgan ed., 2d ed. 1875); 1
W. Holdsworth, A History of English Law 318 (rev. 7th ed. 1956); Smith,
The Historical and Constitutional Contexts of Jury Reform, 25 Hofstra
L. Rev. 377, 397 (1996).
10 4 W. Blackstone, Commentaries on the Laws of England 343 (1769).
Cite as: 590 U. S. ____ (2020) 5
Opinion of the Court
“ ‘verdict, taken from eleven, was no verdict’ ” at all.11
This same rule applied in the young American States. Six
State Constitutions explicitly required unanimity.12 An-
other four preserved the right to a jury trial in more general
terms.13 But the variations did not matter much; consistent
with the common law, state courts appeared to regard una-
nimity as an essential feature of the jury trial.14
It was against this backdrop that James Madison drafted
and the States ratified the Sixth Amendment in 1791. By
that time, unanimous verdicts had been required for about
400 years.15 If the term “trial by an impartial jury” carried
——————
11 Thayer 88–89, n. 4 (quoting Anonymous Case, 41 Lib. Assisarum 11
(1367)); see also 1 M. Hale, Pleas of the Crown 33 (1736).
12 See Del. Declaration of Rights §14 (1776), in 1 The Bill of Rights: A
Documentary History 278 (1971); Md. Declaration of Rights §XIX, in 3
Federal and State Constitutions 1688 (F. Thorpe ed. 1909) (Thorpe);
N. C. Declaration of Rights §IX (1776), in 5 id., at 2787; Pa. Declaration
of Rights §IX (1776), in 5 id., at 3083; Vt. Declaration of Rights, ch. I, §XI
(1786), in 6 id., at 3753; Va. Declaration of Rights §8 (1776), in 7 id., at
3813.
13 See Ga. Const., Art. IV, §3 (1789), in 2 id., at 789; N. J. Const., Art.
XXII (1776), in 5 id., at 2598; N. Y. Const., Art. XLI (1777), in 5 id., at
2637; S. C. Const., Art. IX, §6 (1790), in 6 id., at 3264.
14 See, e.g., Commonwealth v. Bowden, 9 Mass. 494, 495 (1813); People
v. Denton, 2 Johns. Cas. 275, 277 (N. Y. 1801); Commonwealth v. Fells,
36 Va. 613, 614–615 (1838); State v. Doon & Dimond, 1 R. Charlton 1, 2
(Ga. Super. Ct. 1811); see also Respublica v. Oswald, 1 Dall. 319, 323
(Pa. 1788) (reporting Chief Justice McKean’s observations that unanim-
ity would have been required even if the Pennsylvania Constitution had
not said so explicitly).
15 To be sure, a few of the Colonies had relaxed (and then restored) the
unanimity requirement well before the founding. For example, during a
two decade period in the late 17th century, the Carolinas experimented
with a non-common law system designed to encourage a feudal social
structure; this “reactionary” constitution permitted conviction by major-
ity vote. See Carolina Const., Art. 69 (1669), in 5 Thorpe 2781; Reinsch,
The English Common Law in the Early American Colonies, in 1 Select
Essays in Anglo-American Legal History 407 (1907). But, as Louisiana
admits, by the time of the Sixth Amendment’s adoption, unanimity had
again become the accepted rule. See Brief for Respondent 17.
6 RAMOS v. LOUISIANA
Opinion of the Court
any meaning at all, it surely included a requirement as long
and widely accepted as unanimity.
Influential, postadoption treatises confirm this under-
standing. For example, in 1824, Nathan Dane reported as
fact that the U. S. Constitution required unanimity in crim-
inal jury trials for serious offenses.16 A few years later, Jus-
tice Story explained in his Commentaries on the Constitu-
tion that “in common cases, the law not only presumes
every man innocent, until he is proved guilty; but unanim-
ity in the verdict of the jury is indispensable.”17 Similar
statements can be found in American legal treatises
throughout the 19th century.18
Nor is this a case where the original public meaning was
lost to time and only recently recovered. This Court has,
repeatedly and over many years, recognized that the Sixth
Amendment requires unanimity. As early as 1898, the
Court said that a defendant enjoys a “constitutional right
to demand that his liberty should not be taken from him
except by the joint action of the court and the unanimous
verdict of a jury of twelve persons.”19 A few decades later,
the Court elaborated that the Sixth Amendment affords a
right to “a trial by jury as understood and applied at com-
mon law, . . . includ[ing] all the essential elements as they
were recognized in this country and England when the Con-
stitution was adopted.”20 And, the Court observed, this
——————
16 6 N. Dane, Digest of American Law, ch. LXXXII, Art. 2, §1, p. 226
(1824).
17 2 J. Story, Commentaries on the Constitution of the United States
§777, p. 248 (1833).
18 See, e.g., J. Pomeroy, An Introduction to Municipal Law §135, p. 78
(1864); J. Tiffany, Government and Constitutional Law §549, p. 367
(1867); T. Cooley, Constitutional Limitations 319–320 (1868); 1 J.
Bishop, Criminal Procedure §897 (rev. 2d ed. 1872).
19 Thompson v. Utah, 170 U.S. 343, 351 (1898). See also Maxwell v.
Dow, 176 U.S. 581, 586 (1900).
20 Patton v. United States, 281 U.S. 276, 288 (1930).
Cite as: 590 U. S. ____ (2020) 7
Opinion of the Court
includes a requirement “that the verdict should be unani-
mous.”21 In all, this Court has commented on the Sixth
Amendment’s unanimity requirement no fewer than 13
times over more than 120 years.22
There can be no question either that the Sixth Amend-
ment’s unanimity requirement applies to state and federal
criminal trials equally. This Court has long explained that
the Sixth Amendment right to a jury trial is “fundamental
to the American scheme of justice” and incorporated against
the States under the Fourteenth Amendment.23 This Court
has long explained, too, that incorporated provisions of the
Bill of Rights bear the same content when asserted against
States as they do when asserted against the federal govern-
ment.24 So if the Sixth Amendment’s right to a jury trial
requires a unanimous verdict to support a conviction in fed-
eral court, it requires no less in state court.
II
A
How, despite these seemingly straightforward principles,
have Louisiana’s and Oregon’s laws managed to hang on for
so long? It turns out that the Sixth Amendment’s otherwise
simple story took a strange turn in 1972. That year, the
Court confronted these States’ unconventional schemes for
——————
21 Ibid. See also Andres v. United States, 333 U.S. 740, 748 (1948)
(“Unanimity in jury verdicts is required where the Sixth and Seventh
Amendments apply”).
22 In addition to Thompson, Maxwell, Patton, and Andres, see Johnson
v. Louisiana, 406 U.S. 356, 369 (1972) (Powell, J., concurring); United
States v. Gaudin, 515 U.S. 506, 510 (1995); Richardson v. United States,
526 U.S. 813, 817 (1999); Apprendi v. New Jersey, 530 U.S. 466, 477
(2000); Southern Union Co. v. United States, 567 U.S. 343, 356 (2012);
Blakely v. Washington, 542 U.S. 296, 301–302 (2004); United States v.
Booker, 543 U.S. 220, 233–239 (2005); Descamps v. United States, 570
U.S. 254, 269 (2013); United States v. Haymond, 588 U. S. ___, ___–___
(2019) (plurality opinion) (slip op., at 6–7).
23 Duncan v. Louisiana, 391 U.S. 145, 148–150 (1968).
24 Malloy v. Hogan, 378 U.S. 1, 10–11 (1964).
8 RAMOS v. LOUISIANA
Opinion of the Court
the first time—in Apodaca v. Oregon25 and a companion
case, Johnson v. Louisiana.26 Ultimately, the Court could
do no more than issue a badly fractured set of opinions.
Four dissenting Justices would not have hesitated to strike
down the States’ laws, recognizing that the Sixth Amend-
ment requires unanimity and that this guarantee is fully
applicable against the States under the Fourteenth Amend-
ment.27 But a four-Justice plurality took a very different
view of the Sixth Amendment. These Justices declared that
the real question before them was whether unanimity
serves an important “function” in “contemporary society.”28
Then, having reframed the question, the plurality wasted
few words before concluding that unanimity’s costs out-
weigh its benefits in the modern era, so the Sixth Amend-
ment should not stand in the way of Louisiana or Oregon.
The ninth Member of the Court adopted a position that
was neither here nor there. On the one hand, Justice Pow-
ell agreed that, as a matter of “history and precedent, . . .
the Sixth Amendment requires a unanimous jury verdict to
convict.”29 But, on the other hand, he argued that the Four-
teenth Amendment does not render this guarantee against
the federal government fully applicable against the States.
In this way, Justice Powell doubled down on his belief in
“dual-track” incorporation—the idea that a single right can
mean two different things depending on whether it is being
invoked against the federal or a state government.
Justice Powell acknowledged that his argument for dual-
——————
25 406 U.S. 404 (plurality opinion).
26 406 U.S. 356.
27 See Apodaca, 406 U.S., at 414–415 (Stewart, J., joined by Marshall
and Brennan, JJ., dissenting) (“Until today, it has been universally un-
derstood that a unanimous verdict is an essential element of a Sixth
Amendment jury trial. . . . I would follow these settled Sixth Amendment
precedents”); Johnson, 406 U.S., at 382–383, 391–393 (Douglas, J.,
joined by Marshall and Brennan, JJ., dissenting).
28 Apodaca, 406 U.S., at 410.
29 Johnson, 406 U.S., at 371 (concurring opinion).
Cite as: 590 U. S. ____ (2020) 9
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Opinion Court
ORSUCH, J.
track incorporation came “late in the day.”30 Late it was.
The Court had already, nearly a decade earlier, “rejected
the notion that the Fourteenth Amendment applies to the
States only a ‘watered-down, subjective version of the indi-
vidual guarantees of the Bill of Rights.’ ”31 It’s a point we’ve
restated many times since, too, including as recently as last
year.32 Still, Justice Powell frankly explained, he was “un-
willin[g]” to follow the Court’s precedents.33 So he offered
up the essential fifth vote to uphold Mr. Apodaca’s convic-
tion—if based only on a view of the Fourteenth Amendment
that he knew was (and remains) foreclosed by precedent.
B
In the years following Apodaca, both Louisiana and Ore-
gon chose to continue allowing nonunanimous verdicts. But
their practices have always stood on shaky ground. After
all, while Justice Powell’s vote secured a favorable judg-
ment for the States in Apodaca, it’s never been clear what
rationale could support a similar result in future cases.
Only two possibilities exist: Either the Sixth Amendment
allows nonunanimous verdicts, or the Sixth Amendment’s
guarantee of a jury trial applies with less force to the States
under the Fourteenth Amendment. Yet, as we’ve seen, both
bear their problems. In Apodaca itself, a majority of Jus-
tices—including Justice Powell—recognized that the Sixth
Amendment demands unanimity, just as our cases have
long said. And this Court’s precedents, both then and now,
prevent the Court from applying the Sixth Amendment to
the States in some mutated and diminished form under the
——————
30 Id., at 375.
31 Id., at 384 (Douglas, J., dissenting) (quoting Malloy, 378 U.S., at 10–
11); Johnson, 406 U.S., at 395–396 (Brennan, J., dissenting) (collecting
cases).
32 See, e.g., Timbs v. Indiana, 586 U. S. ___, ___ (2019) (slip op., at 3)
(unanimously rejecting arguments for dual-track incorporation).
33 Johnson, 406 U.S., at 375–376, and n. 15 (concurring opinion).
10 RAMOS v. LOUISIANA
OpinionofofGthe
Opinion Court
ORSUCH, J.
Fourteenth Amendment. So what could we possibly de-
scribe as the “holding” of Apodaca?
Really, no one has found a way to make sense of it. In
later cases, this Court has labeled Apodaca an “exception,”
“unusual,” and in any event “not an endorsement” of Justice
Powell’s view of incorporation.34 At the same time, we have
continued to recognize the historical need for unanimity.35
We’ve been studiously ambiguous, even inconsistent, about
what Apodaca might mean.36 To its credit, Louisiana
acknowledges the problem. The State expressly tells us it
is not “asking the Court to accord Justice Powell’s solo opin-
ion in Apodaca precedential force.”37 Instead, in an effort
to win today’s case, Louisiana embraces the idea that every-
thing is up for grabs. It contends that this Court has
——————
34 McDonald v. Chicago, 561 U.S. 742, 766, n. 14 (2010); see also
Timbs, 586 U. S., at ___ (slip op., at 3) (quoting McDonald, 561 U.S., at
766, n. 14).
35 Gaudin, 515 U.S., at 510; Richardson, 526 U.S., at 817; Apprendi,
530 U.S., at 477; Southern Union Co., 567 U.S., at 356; Blakely, 542
U.S., at 301–302; Booker, 543 U.S., at 238; Descamps, 570 U.S., at 269;
Haymond, 588 U. S., at ___–___ (plurality opinion) (slip op., at 6–7).
36 See, e.g., Burch v. Louisiana, 441 U.S. 130, 136, and n. 9 (1979) (de-
scribing both plurality opinion and Justice Powell’s separate writing);
Brown v. Louisiana, 447 U.S. 323, 331 (1980) (plurality opinion) (de-
scribing neither); see also McKoy v. North Carolina, 494 U.S. 433, 468
(1990) (Scalia, J., dissenting) (same). On a few occasions we’ve suggested
that perhaps Apodaca means the Sixth Amendment does not require
unanimity at all. See Ludwig v. Massachusetts, 427 U.S. 618, 625 (1976)
(quoting Apodaca plurality); Gaudin, 515 U.S., at 510, n. 2 (same); see
also Holland v. Illinois, 493 U.S. 474, 511 (1990) (Stevens, J., dissenting)
(same). But on another occasion, we suggested that it could make a dif-
ference whether a particular right was rooted in the Sixth Amendment’s
jury trial guarantee or Fourteenth Amendment due process guarantee.
See Schad v. Arizona, 501 U.S. 624, 634, n. 5 (1991) (plurality opinion).
The dissent contends that these cases have “reiterated time and again
what Apodaca had established.” Post, at 6 (opinion of ALITO, J.). More
accurately, these “reiterations” have suggested different things at differ-
ent times.
37 See Brief for Respondent 47; Tr. of Oral Arg. 37–38.
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never definitively ruled on the propriety of nonunanimous
juries under the Sixth Amendment—and that we should
use this case to hold for the first time that nonunanimous
juries are permissible in state and federal courts alike.
III
Louisiana’s approach may not be quite as tough as trying
to defend Justice Powell’s dual-track theory of incorpora-
tion, but it’s pretty close. How does the State deal with the
fact this Court has said 13 times over 120 years that the
Sixth Amendment does require unanimity? Or the fact that
five Justices in Apodaca said the same? The best the State
can offer is to suggest that all these statements came in
dicta.38 But even supposing (without granting) that Louisi-
ana is right and it’s dicta all the way down, why would the
Court now walk away from many of its own statements
about the Constitution’s meaning? And what about the
prior 400 years of English and American cases requiring
unanimity—should we dismiss all those as dicta too?
Sensibly, Louisiana doesn’t dispute that the common law
required unanimity. Instead, it argues that the drafting
history of the Sixth Amendment reveals an intent by the
framers to leave this particular feature behind. The State
points to the fact that Madison’s proposal for the Sixth
Amendment originally read: “The trial of all crimes . . .
shall be by an impartial jury of freeholders of the vicinage,
with the requisite of unanimity for conviction, of the right
——————
38 In at least some of these cases, that may be a fair characterization.
For example, while Thompson was quick to say that the U. S. Constitu-
tion requires “the unanimous verdict of a jury of twelve persons,” the
question before the Court was whether, in the circumstances of the de-
fendant’s case, a trial by eight jurors in a Utah state court would violate
the Ex Post Facto Clause. 170 U.S., at 351. The Sixth Amendment’s
unanimity requirement was unnecessary to the outcome, and the Utah
Constitution required unanimity either way. Id., at 345.
12 RAMOS v. LOUISIANA
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of challenge, and other accustomed requisites. . . .”39 Loui-
siana notes that the House of Representatives approved
this text with minor modifications. Yet, the State stresses,
the Senate replaced “impartial jury of freeholders of the vic-
inage” with “impartial jury of the State and district wherein
the crime shall have been committed” and also removed the
explicit references to unanimity, the right of challenge, and
“other accustomed requisites.” In light of these revisions,
Louisiana would have us infer an intent to abandon the
common law’s traditional unanimity requirement.
But this snippet of drafting history could just as easily
support the opposite inference. Maybe the Senate deleted
the language about unanimity, the right of challenge, and
“other accustomed prerequisites” because all this was so
plainly included in the promise of a “trial by an impartial
jury” that Senators considered the language surplusage.
The truth is that we have little contemporaneous evidence
shedding light on why the Senate acted as it did.40 So
rather than dwelling on text left on the cutting room floor, we
are much better served by interpreting the language Con-
gress retained and the States ratified. And, as we’ve seen,
at the time of the Amendment’s adoption, the right to a jury
trial meant a trial in which the jury renders a unanimous
verdict.
Further undermining Louisiana’s inference about the
drafting history is the fact it proves too much. If the Sen-
ate’s deletion of the word “unanimity” changed the meaning
of the text that remains, then the same would seemingly
have to follow for the other deleted words as well. So it’s
not just unanimity that died in the Senate, but all the
——————
39 1 Annals of Cong. 435 (1789).
40 In private writings, Madison did explain some of the Senate’s objec-
tions with his original phrasing of the vicinage requirement. See 5 Writ-
ings of James Madison 420–424 (G. Hunt ed. 1904) (letters to E. Pend-
leton, Sept. 14 and 23, 1789). But this is little help in explaining the
other changes made in the Senate.
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“other accustomed requisites” associated with the common
law jury trial right—i.e., everything history might have
taught us about what it means to have a jury trial. Taking
the State’s argument from drafting history to its logical con-
clusion would thus leave the right to a “trial by jury” devoid
of meaning. A right mentioned twice in the Constitution
would be reduced to an empty promise. That can’t be right.
Faced with this hard fact, Louisiana’s only remaining op-
tion is to invite us to distinguish between the historic fea-
tures of common law jury trials that (we think) serve “im-
portant enough” functions to migrate silently into the Sixth
Amendment and those that don’t. And, on the State’s ac-
count, we should conclude that unanimity isn’t worthy
enough to make the trip.
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 com-
monsense judgment of a group of laymen’ ” between the de-
fendant and the possibility of an “ ‘overzealous prosecu-
tor.’ ”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 rea-
sons for dispensing with unanimity, such as seeking to re-
duce the rate of hung juries.43
Who can profess confidence in a breezy cost-benefit
analysis like that? Lost in the accounting are the racially
discriminatory reasons that Louisiana and Oregon adopted
——————
41 406 U.S., at 410 (plurality opinion) (quoting Williams v. Florida, 399
U.S. 78, 100 (1970), and Duncan, 391 U.S., at 156).
42 406 U.S., at 410–411.
43 Id., at 411.
14 RAMOS v. LOUISIANA
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their peculiar rules in the first place.44 What’s more, the
plurality never explained why the promised benefit of aban-
doning unanimity—reducing the rate of hung juries—al-
ways scores as a credit, not a cost. But who can say whether
any particular hung jury is a waste, rather than an example
of a jury doing exactly what the plurality said it should—
deliberating carefully and safeguarding against overzeal-
ous prosecutions? And what about the fact, too, that some
studies suggest that the elimination of unanimity has only
a small effect on the rate of hung juries?45 Or the fact that
others profess to have found that requiring unanimity may
provide other possible benefits, including more open-
minded and more thorough deliberations?46 It seems
the Apodaca plurality never even conceived of such
possibilities.
Our real objection here isn’t that the Apodaca plurality’s
cost-benefit analysis was too skimpy. The deeper problem
——————
44 The dissent chides us for acknowledging the racist history of Louisi-
ana’s and Oregon’s laws, and commends the Apodaca plurality’s decision
to disregard these facts. Post, at 2–5, 14. But if the Sixth Amendment
calls on judges to assess the functional benefits of jury rules, as the Apo-
daca plurality suggested, how can that analysis proceed to ignore the
very functions those rules were adopted to serve? The dissent answers
that Louisiana and Oregon eventually recodified their nonunanimous
jury laws in new proceedings untainted by racism. See post, at 3–4, n. 3.
But that cannot explain Apodaca’s omission: The States’ proceedings
took place only after the Court’s decision. Nor can our shared respect for
“rational and civil discourse,” post, at 5, supply an excuse for leaving an
uncomfortable past unexamined. Still, the dissent is right about one
thing—a jurisdiction adopting a nonunanimous jury rule even for benign
reasons would still violate the Sixth Amendment.
45 See H. Kalven & H. Zeisel, The American Jury 461 (1966); Diamond,
Rose, & Murphy, Revisiting the Unanimity Requirement: The Behavior
of the Nonunanimous Civil Jury, 100 Nw. U. L. Rev. 201, 207–208 (2006).
46 Devine et al., Jury Decision Making: 45 Years of Empirical Research
on Deliberating Groups, 7 Psych. Pub. Pol’y & L. 622, 669 (2001); R. Has-
tie, S. Penrod, & N. Pennington, Inside the Jury 115, 164–165 (1983);
Hans, The Power of Twelve: The Impact of Jury Size and Unanimity on
Civil Jury Decision Making, 4 Del. L. Rev. 1, 24–25 (2001).
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is that the plurality subjected the ancient guarantee of a
unanimous jury verdict to its own functionalist assessment
in the first place. And Louisiana asks us to repeat the error
today, just replacing Apodaca’s functionalist assessment
with our own updated version. All this overlooks the fact
that, at the time of the Sixth Amendment’s adoption, the
right to trial by jury included a right to a unanimous ver-
dict. When the American people chose to enshrine that
right in the Constitution, they weren’t suggesting fruitful
topics for future cost-benefit analyses. They were seeking
to ensure that their children’s children would enjoy the
same hard-won liberty they enjoyed. As judges, it is not our
role to reassess whether the right to a unanimous jury is
“important enough” to retain. With humility, we must ac-
cept that this right may serve purposes evading our current
notice. We are entrusted to preserve and protect that lib-
erty, not balance it away aided by no more than social
statistics.47
——————
47 The dissent seems to suggest that we must abandon the Sixth
Amendment’s historical meaning in favor of Apodaca’s functionalism be-
cause a parade of horribles would follow otherwise. In particular, the
dissent reminds us that, at points and places in our history, women were
not permitted to sit on juries. See post, at 15–16. But we hardly need
Apodaca’s functionalism to avoid repeating that wrong. Unlike the rule
of unanimity, rules about who qualified as a defendant’s “peer” varied
considerably at common law at the time of the Sixth Amendment’s adop-
tion. Reflecting that fact, the Judiciary Act of 1789—adopted by the
same Congress that passed the Sixth Amendment—initially pegged the
qualifications for federal jury service to the relevant state jury qualifica-
tion requirements. 1 Stat. 88. As a result, for much of this Nation’s early
history the composition of federal juries varied both geographically and
over time. See Hickey, Federal Legislation: Improvement of the Jury
System in Federal Courts, 35 Geo. L. J. 500, 506–507 (1947); Taylor v.
Louisiana, 419 U.S. 522, 536 (1975). Ultimately, however, the people
themselves adopted further constitutional amendments that prohibit in-
vidious discrimination. So today the Sixth Amendment’s promise of a
jury of one’s peers means a jury selected from a representative cross-
section of the entire community. See Strauder, 100 U.S., at 307–308;
Smith v. Texas, 311 U.S. 128, 130 (1940); Taylor, 419 U.S., at 527.
16 RAMOS v. LOUISIANA
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IV
A
If Louisiana’s path to an affirmance is a difficult one, the
dissent’s is trickier still. The dissent doesn’t dispute that
the Sixth Amendment protects the right to a unanimous
jury verdict, or that the Fourteenth Amendment extends
this right to state-court trials. But, it insists, we must af-
firm Mr. Ramos’s conviction anyway. Why? Because the
doctrine of stare decisis supposedly commands it. There are
two independent reasons why that answer falls short.
In the first place and as we’ve seen, not even Louisiana
tries to suggest that Apodaca supplies a governing prece-
dent. 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 Jus-
tice writing only for himself has the authority to bind this
Court to propositions it has already rejected.
This is not the rule, and for good reason—it would do
more to destabilize than honor precedent. To see how, con-
sider a hypothetical. Suppose we face a question of first
impression under the Fourth Amendment: whether a State
must obtain a warrant before reading a citizen’s email in
the hands of an Internet provider and using that email as
evidence in a criminal trial. Imagine this question splits
the Court, with four Justices finding the Fourth Amend-
ment requires a warrant and four Justices finding no such
——————
Relatedly, the dissent suggests that, before doing anything here, we
should survey all changes in jury practices since 1791. See post, at 16,
n. 26. It sounds like an interesting study—but not one that could alter
the plain meaning of the Constitution or obliviate its undisputed una-
nimity requirement.
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ORSUCH, J.
requirement. The ninth Justice agrees that the Fourth
Amendment requires a warrant, but takes an idiosyncratic
view of the consequences of violating that right. In her
view, the exclusionary rule has gone too far, and should
only apply when the defendant is prosecuted for a felony.
Because the case before her happens to involve only a mis-
demeanor, she provides the ninth vote to affirm a conviction
based on evidence secured by a warrantless search. Of
course, this Court has longstanding precedent requiring the
suppression of all evidence obtained in unconstitutional
searches and seizures. Mapp v. Ohio, 367 U.S. 643 (1961).
But like Justice Powell, our hypothetical ninth Justice
sticks to her view and expressly rejects this Court’s prece-
dent. Like Justice Powell, this Justice’s vote would be es-
sential to the judgment. So if, as the dissent suggests, that
is enough to displace precedent, would Mapp’s exclusionary
rule now be limited to felony prosecutions?
Admittedly, this example comes from our imagination.
It has to, because no case has before suggested that a single
Justice may overrule precedent. But if the Court were to
embrace the dissent’s view of stare decisis, it would not stay
imaginary for long. Every occasion on which the Court is
evenly split would present an opportunity for single Jus-
tices to overturn precedent to bind future majorities. Rather
than advancing the goals of predictability and reliance
lying behind the doctrine of stare decisis, such an approach
would impair them.
The dissent contends that, in saying this much, we risk
defying Marks v. United States.48 According to Marks,
when “a fragmented Court decides a case and no single ra-
tionale explaining the result enjoys the assent of five Jus-
tices, ‘the holding of the Court may be viewed as that posi-
tion taken by those Members who concurred in the
——————
48 430 U.S. 188 (1977).
18 RAMOS v. LOUISIANA
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judgments on the narrowest grounds.’ ”49 But notice that
the dissent never actually gets around to telling us which
opinion in Apodaca it considers to be the narrowest and con-
trolling one under Marks—or why. So while the dissent
worries that we defy a Marks precedent, it is oddly coy
about where exactly that precedent might be found.
The parties recognize what the dissent does not: Marks
has nothing to do with this case. Unlike a Marks dispute
where the litigants duel over which opinion represents the
narrowest and controlling one, the parties before us accept
that Apodaca yielded no controlling opinion at all. In par-
ticular, both sides admit that Justice Powell’s opinion can-
not bind us—precisely because he relied on a dual-track
rule of incorporation that an unbroken line of majority opin-
ions before and after Apodaca has rejected. Still, the dis-
sent presses the issue, suggesting that a single Justice’s
opinion can overrule prior precedents under “the logic” of
Marks.50 But, as the dissent itself implicitly acknowledges,
Marks never sought to offer or defend such a rule. And, as
we have seen, too, a rule like that would do more to harm
than advance stare decisis.
The dissent’s backup argument fares no better. In the
end, even the dissent is forced to concede that Justice Pow-
ell’s reasoning in Apodaca lacks controlling force.51 So far,
so good. But then the dissent suggests Apodaca somehow
still manages to supply a controlling precedent as to its re-
sult.52 Look closely, though. The dissent’s account of Apo-
daca’s result looks suspiciously like the reasoning of Justice
Powell’s opinion: “In Apodaca, this means that when (1) a
defendant is convicted in state court, (2) at least 10 of the
12 jurors vote to convict, and (3) the defendant argues that
the conviction violates the Constitution because the vote
——————
49 Id., at 193.
50 Post, at 10–11.
51 Post, at 11–12.
52 Post, at 8.
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was not unanimous, the challenge fails.”53 Where does the
convenient “state court” qualification come from? Neither
the Apodaca plurality nor the dissent included any limita-
tion like that—their opinions turned on the meaning of the
Sixth Amendment. What the dissent characterizes as Apo-
daca’s result turns out to be nothing more than Justice
Powell’s reasoning about dual-track incorporation dressed
up to look like a logical proof.
All of this does no more than highlight an old truth. It is
usually a judicial decision’s reasoning—its ratio de-
cidendi—that allows it to have life and effect in the dispo-
sition of future cases.54 As this Court has repeatedly ex-
plained 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 opin-
ions.’ ”55 Much the same may be said here. Apodaca’s judg-
ment 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
——————
53 Ibid. See also post, at 11, n. 6 (KAVANAUGH, J., concurring in part)
(offering the same argument by contending that “[t]he result of Apodaca”
means “state criminal juries need not be unanimous”).
54 See J. Salmond, Jurisprudence §62, p. 191 (G. Williams ed., 10th ed.
1947) (“The concrete decision is binding between the parties to it, but is
the abstract ratio decidendi which alone has the force of law as regards
the world at large”); F. Schauer, Precedent, in Routledge Companion to
Philosophy of Law 129 (A. Marmor ed. 2012) (“[T]he traditional answer
to the question of what is a precedent is that subsequent cases falling
within the ratio decidendi—or rationale—of the precedent case are con-
trolled by that case”); N. Duxbury, The Nature and Authority of Prece-
dent 65–66 (2008).
55 Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam) (quoting
Fusari v. Steinberg, 419 U.S. 379, 392 (1975) (Burger, C. J., concurring);
see also Bush v. Vera, 517 U.S. 952, 1001–1002 (1996) (THOMAS, J., con-
curring in judgment).
20 RAMOS v. LOUISIANA
Opinion of the Court
repeated pre-existing teachings on the Sixth and Four-
teenth Amendments.56
B
1
There’s another obstacle the dissent must overcome.
Even if we accepted the premise that Apodaca established
a precedent, no one on the Court today is prepared to say it
was rightly decided, and stare decisis isn’t supposed to be
the art of methodically ignoring what everyone knows to be
true.57 Of course, the precedents of this Court warrant our
deep respect as embodying the considered views of those
who have come before. But stare decisis has never been
treated as “an inexorable command.”58 And the doctrine is
“at its weakest when we interpret the Constitution”59 be-
cause a mistaken judicial interpretation of that supreme
law is often “practically impossible” to correct through other
means.60 To balance these considerations, when it revisits
a precedent this Court has traditionally considered “the
quality of the decision’s reasoning; its consistency with re-
lated decisions; legal developments since the decision; and
reliance on the decision.”61 In this case, each factor points
——————
56 The dissent floats a different theory when it suggests this Court’s
denials of certiorari in cases seeking to clarify Apodaca is evidence of
Apodaca’s precedential force. Post, at 7. But “[t]he significance of a de-
nial of a petition for certiorari ought no longer . . . require discussion.
This Court has said again and again and again that such a denial has no
legal significance whatever bearing on the merits of the claim.” Darr v.
Burford, 339 U.S. 200, 226 (1950) (Frankfurter, J., dissenting).
57 R. Cross & J. Harris, Precedent in English Law 1 (4th ed. 1991) (at-
tributing this aphorism to Jeremy Bentham).
58 Pearson v. Callahan, 555 U.S. 223, 233 (2009) (internal quotation
marks omitted).
59 Agostini v. Felton, 521 U.S. 203, 235 (1997).
60 Payne v. Tennessee, 501 U.S. 808, 828 (1991) (internal quotation
marks omitted).
61 Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___ (2019) (slip op.,
at 17).
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in the same direction.
Start with the quality of the reasoning. Whether we look
to the plurality opinion or Justice Powell’s separate concur-
rence, 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 Amend-
ment’s jury trial right, this Court’s long-repeated state-
ments that it demands unanimity, or the racist origins of
Louisiana’s and Oregon’s laws. Instead, the plurality sub-
jected 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 re-
jected the plurality’s conclusion that the Sixth Amendment
does not require unanimity. Meanwhile, Justice Powell re-
fused to follow this Court’s incorporation precedents. Nine
Justices (including Justice Powell) recognized this for what
it was; eight called it an error.
Looking to Apodaca’s consistency with related decisions
and recent legal developments compounds the reasons for
concern. Apodaca sits uneasily with 120 years of preceding
case law. Given how unmoored it was from the start, it
might seem unlikely that later developments could have
done more to undermine the decision. Yet they have. While
Justice Powell’s dual-track theory of incorporation was al-
ready foreclosed in 1972, some at that time still argued that
it might have a role to play outside the realm of criminal
procedure. Since then, the Court has held otherwise.62 Un-
til recently, dual-track incorporation attracted at least a
measure of support in dissent. But this Court has now
roundly rejected it.63 Nor has the plurality’s rejection of the
——————
62 McDonald, 561 U.S., at 765–766.
63 Timbs, 586 U. S., at ___ (slip op., at 3). Contrary to the dissent’s
suggestion, this Court’s longstanding rejection of dual-track incorpora-
tion does not necessarily imply that the Fourteenth Amendment renders
22 RAMOS v. LOUISIANA
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Sixth Amendment’s historical unanimity requirement aged
more gracefully. As we’ve seen, in the years since Apodaca,
this Court has spoken inconsistently about its meaning—
but nonetheless referred to the traditional unanimity re-
quirement on at least eight occasions.64 In light of all this,
calling Apodaca an outlier would be perhaps too suggestive
of the possibility of company.
When it comes to reliance interests, it’s notable that nei-
ther Louisiana nor Oregon claims anything like the pro-
spective economic, regulatory, or social disruption litigants
seeking to preserve precedent usually invoke. No one, it
seems, has signed a contract, entered a marriage, pur-
chased a home, or opened a business based on the expecta-
tion that, should a crime occur, at least the accused may be
sent away by a 10-to-2 verdict.65 Nor does anyone suggest
that nonunanimous verdicts have “become part of our na-
tional culture.”66 It would be quite surprising if they had,
given that nonunanimous verdicts are insufficient to con-
vict in 48 States and federal court.
Instead, the only reliance interests that might be as-
serted here fall into two categories. The first concerns the
fact Louisiana and Oregon may need to retry defendants
convicted of felonies by nonunanimous verdicts whose cases
are still pending on direct appeal. The dissent claims that
this fact supplies the winning argument for retaining Apo-
daca because it has generated “enormous reliance inter-
ests” and overturning the case would provoke a “crushing”
——————
the entire Bill of Rights applicable to the States. See post, at 17–18. The
scope of an incorporated right and whether a right is incorporated at all
are two different questions. See Timbs, 586 U. S., at ___–___ (slip op., at
2–3) (“[I]f a Bill of Rights protection is incorporated, there is no daylight
between the federal and state conduct it prohibits or requires”).
64 See n. 35, supra.
65 Cf. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S.
877, 925–926 (2007) (BREYER, J., dissenting).
66 Dickerson v. United States, 530 U.S. 428, 443 (2000).
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“tsunami” of follow-on litigation.67
The overstatement may be forgiven as intended for dra-
matic effect, but prior convictions in only two States are po-
tentially affected by our judgment. Those States credibly
claim that the number of nonunanimous felony convictions
still on direct appeal are somewhere in the hundreds,68 and
retrying or plea bargaining these cases will surely impose a
cost. But new rules of criminal procedures usually do, often
affecting significant numbers of pending cases across the
whole country. For example, after Booker v. United States
held that the Federal Sentencing Guidelines must be advi-
sory rather than mandatory, this Court vacated and re-
manded nearly 800 decisions to the courts of appeals. Sim-
ilar consequences likely followed when Crawford v.
Washington overturned prior interpretations of the Con-
frontation Clause69 or Arizona v. Gant changed the law for
searches incident to arrests.70 Our decision here promises
to cause less, and certainly nothing before us supports the
dissent’s surmise that it will cause wildly more, disruption
than these other decisions.
2
The second and related reliance interest the dissent
seizes upon involves the interest Louisiana and Oregon
have in the security of their final criminal judgments. In
light of our decision today, the dissent worries that defend-
ants whose appeals are already complete might seek to
——————
67 Post, at 1, 19.
68 Brief for State of Oregon as Amicus Curiae 13 (“In 2018 alone . . .
there were 673 felony jury trials in Oregon, and studies suggest that as
many as two-thirds of those cases would have had a non-unanimous ver-
dict”). At most, Oregon says the number of cases remaining on direct
appeal and affected by today’s decision “easily may eclipse a thousand.”
Id., at 12 (emphasis added).
69 541 U.S. 36, 60–63 (2004).
70 556 U.S. 332, 345–347 (2009).
24 RAMOS v. LOUISIANA
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challenge their nonunanimous convictions through collat-
eral (i.e., habeas) review.
But again the worries outstrip the facts. Under Teague
v. Lane, newly recognized rules of criminal procedure do not
normally apply in collateral review.71 True, Teague left
open the possibility of an exception for “watershed rules”
“implicat[ing] the fundamental fairness [and accuracy] of
the trial.”72 But, as this language suggests, Teague’s test is
a demanding one, so much so that this Court has yet to an-
nounce a new rule of criminal procedure capable of meeting
it.73 And the test is demanding by design, expressly cali-
brated to address the reliance interests States have in the
finality of their criminal judgments.74
Nor is the Teague question even before us. Whether the
right to jury unanimity applies to cases on collateral review
is a question for a future case where the parties will have a
chance to brief the issue and we will benefit from their ad-
versarial presentation. That litigation is sure to come, and
will rightly take into account the States’ interest in the fi-
nality of their criminal convictions. In this way, Teague
frees us to say what we know to be true about the rights of
the accused under our Constitution today, while leaving
questions about the reliance interest States possess in their
final judgments for later proceedings crafted to account for
them. It would hardly make sense to ignore that two-step
process and count the State’s reliance interests in final
judgments both here and again there. Certainly the dissent
cites no authority for such double counting.
Instead, the dissent suggests that the feeble reliance in-
terests it identifies should get a boost because the right to
——————
71 489 U.S. 288, 311–312 (1989) (plurality opinion).
72 Ibid.
73 See Whorton v. Bockting, 549 U.S. 406, 417–418 (2007).
74 See Stringer v. Black, 503 U.S. 222, 227–228 (1992).
Cite as: 590 U. S. ____ (2020) 25
OpinionofofGthe
Opinion Court
ORSUCH, J.
a unanimous jury trial has “little practical importance go-
ing forward.”75 In the dissent’s telling, Louisiana has “abol-
ished” nonunanimous verdicts and Oregon “seemed on the
verge of doing the same until the Court intervened.”76 But,
as the dissent itself concedes, a ruling for Louisiana would
invite other States to relax their own unanimity require-
ments.77 In fact, 14 jurisdictions have already told us that
they would value the right to “experiment” with nonunani-
mous juries.78 Besides, Louisiana’s law bears only prospec-
tive effect, so the State continues to allow nonunanimous
verdicts for crimes committed before 2019.79 And while the
dissent speculates that our grant of certiorari contributed
to the failure of legal reform efforts in Oregon, its citation
does not support its surmise. No doubt, too, those who risk
being subjected to nonunanimous juries in Louisiana and
Oregon today, and elsewhere tomorrow, would dispute the
dissent’s suggestion that their Sixth Amendment rights are
of “little practical importance.”
That point suggests another. In its valiant search for re-
liance interests, the dissent somehow misses maybe the
most important one: the reliance interests of the American
people. Taken at its word, the dissent would have us dis-
card a Sixth Amendment right in perpetuity rather than
ask two States to retry a slice of their prior criminal cases.
Whether that slice turns out to be large or small, it cannot
outweigh the interest we all share in the preservation of our
constitutionally promised liberties. Indeed, the dissent can
cite no case in which the one-time need to retry defendants
has ever been sufficient to inter a constitutional right
forever.
——————
75 Post, at 2.
76 Ibid.
77 Post, at 3.
78 Brief for State of Utah et al. as Amici Curiae 1.
79 See 2018 La. Reg. Sess., Act 722.
26 RAMOS v. LOUISIANA
OpinionofofGthe
Opinion Court
ORSUCH, J.
In the final accounting, the dissent’s stare decisis argu-
ments round to zero. We have an admittedly mistaken de-
cision, on a constitutional issue, an outlier on the day it was
decided, one that’s become lonelier with time. In arguing
otherwise, the dissent must elide the reliance the American
people place in their constitutionally protected liberties,
overplay the competing interests of two States, count some
of those interests twice, and make no small amount of new
precedent all its own.
V
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 be-
fore 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. The judgment of the Court of Appeals is
Reversed.
Cite as: 590 U. S. ____ (2020) 1
SOTOMAYOR, J., concurring in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–5924
_________________
EVANGELISTO RAMOS, PETITIONER v. LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
OF LOUISIANA, FOURTH CIRCUIT
[April 20, 2020]
JUSTICE SOTOMAYOR, concurring as to all but Part IV–A.
I agree with most of the Court’s rationale, and so I join
all but Part IV–A of its opinion. I write separately, how-
ever, to underscore three points. First, overruling prece-
dent here is not only warranted, but compelled. Second, the
interests at stake point far more clearly to that outcome
than those in other recent cases. And finally, the racially
biased origins of the Louisiana and Oregon laws uniquely
matter here.
I
Both the majority and the dissent rightly emphasize that
stare decisis “has been a fundamental part of our jurispru-
dence since the founding.” Post, at 12 (opinion of ALITO, J.);
see ante, at 20. Indeed, “[w]e generally adhere to our prior
decisions, even if we question their soundness, because do-
ing so ‘promotes the evenhanded, predictable, and con-
sistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and per-
ceived integrity of the judicial process.’ ” Alleyne v. United
States, 570 U.S. 99, 118 (2013) (SOTOMAYOR, J., concur-
ring) (quoting Payne v. Tennessee, 501 U.S. 808, 827
(1991)).
But put simply, this is not a case where we cast aside
precedent “simply because a majority of this Court now dis-
2 RAMOS v. LOUISIANA
SOTOMAYOR, J., concurring in part
agrees with” it. Alleyne, 570 U.S., at 133 (ALITO, J., dis-
senting). 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: Rea-
sonable minds have disagreed over time—and continue to
disagree—about the best mode of constitutional interpreta-
tion. That the plurality in Apodaca used different interpre-
tive tools from the majority here is not a reason on its own
to discard precedent.
What matters instead is that, as the majority rightly
stresses, Apodaca is a universe of one—an opinion uniquely
irreconcilable with not just one, but two, strands of consti-
tutional precedent well established both before and after
the decision. The Court has long recognized that the Sixth
Amendment requires unanimity. Ante, at 11, 20–22. Five
Justices in Apodaca itself disagreed with that plurality’s
contrary view of the Sixth Amendment. Justice Powell’s
theory of dual-track incorporation also fared no better: He
recognized that his argument on that score came “late in
the day.” Johnson v. Louisiana, 406 U.S. 356, 375 (1972)
(concurring opinion).
Moreover, “[t]he force of stare decisis is at its nadir in
cases concerning [criminal] procedur[e] rules that implicate
fundamental constitutional protections.” Alleyne, 570
U.S., at 116, n. 5. And the constitutional protection here
ranks among the most essential: the right to put the State
to its burden, in a jury trial that comports with the Sixth
Amendment, before facing criminal punishment. See
Codispoti v. Pennsylvania, 418 U.S. 506, 515–516 (1974)
(“The Sixth Amendment represents a deep commitment of
the Nation to the right of jury trial in serious criminal cases
as a defense against arbitrary law enforcement” (internal
quotation marks omitted)). Where the State’s power to im-
prison those like Ramos rests on an erroneous interpreta-
tion of the jury-trial right, the Court should not hesitate to
reconsider its precedents.
Cite as: 590 U. S. ____ (2020) 3
SOTOMAYOR, J., concurring in part
II
In contrast to the criminal-procedure context, “[c]onsid-
erations in favor of stare decisis are at their acme in cases
involving property and contract rights.” Payne, 501 U.S.,
at 828. Despite that fact, the Court has recently overruled
precedent where the Court’s shift threatened vast regula-
tory and economic consequences. Janus v. State, County,
and Municipal Employees, 585 U. S. ___ (2018); id., at ___
(KAGAN, J., dissenting) (slip op., at 23) (noting that the
Court’s opinion called into question “thousands of . . . con-
tracts covering millions of workers”); see South Dakota v.
Wayfair, Inc., 585 U. S. ___, ___ (2018) (slip op., at 21) (not-
ing the “legitimate” burdens that the Court’s overruling of
precedent would place on vendors who had started busi-
nesses in reliance on a previous decision).
This case, by contrast, threatens no broad upheaval of
private economic rights. Particularly when compared to the
interests of private parties who have structured their af-
fairs in reliance on our decisions, the States’ interests here
in avoiding a modest number of retrials—emphasized at
such length by the dissent—are much less weighty. They
are certainly not new: Opinions that force changes in a
State’s criminal procedure typically impose such costs. And
were this Court to take the dissent’s approach—defending
criminal-procedure opinions as wrong as Apodaca simply to
avoid burdening criminal justice systems—it would never
correct its criminal jurisprudence at all.
To pick up on the majority’s point, ante, at 23, in that al-
ternate universe, a trial judge alone could still decide the
critical facts necessary to sentence a defendant to death.
Walton v. Arizona, 497 U.S. 639 (1990), overruled by Ring
v. Arizona, 536 U.S. 584 (2002). An officer would still be
able to search a car upon the arrest of any one of its recent
occupants. New York v. Belton, 453 U.S. 454 (1981), hold-
ing limited by Arizona v. Gant, 556 U.S. 332 (2009). And
4 RAMOS v. LOUISIANA
SOTOMAYOR, J., concurring in part
States could still deprive a defendant of the right to con-
front her accuser so long as the incriminating statement
was “reliable.” Ohio v. Roberts, 448 U.S. 56 (1980), abro-
gated by Crawford v. Washington, 541 U.S. 36 (2004). The
Constitution demands more than the continued use of
flawed criminal procedures—all because the Court fears
the consequences of changing course.
III
Finally, the majority vividly describes the legacy of rac-
ism that generated Louisiana’s and Oregon’s laws. Ante, at
1–2, 13–14, and n. 44. Although Ramos does not bring an
equal protection challenge, the history is worthy of this
Court’s attention. That is not simply because that legacy
existed in the first place—unfortunately, many laws and
policies in this country have had some history of racial ani-
mus—but also because the States’ legislatures never truly
grappled with the laws’ sordid history in reenacting them.
See generally United States v. Fordice, 505 U.S. 717, 729
(1992) (policies that are “traceable” to a State’s de jure ra-
cial segregation and that still “have discriminatory effects”
offend the Equal Protection Clause).
Where a law otherwise is untethered to racial bias—and
perhaps also where a legislature actually confronts a law’s
tawdry past in reenacting it—the new law may well be free
of discriminatory taint. That cannot be said of the laws at
issue here. While the dissent points to the “legitimate” rea-
sons for Louisiana’s reenactment, post, at 3–4, Louisiana’s
perhaps only effort to contend with the law’s discriminatory
purpose and effects came recently, when the law was re-
pealed altogether.
Today, Louisiana’s and Oregon’s laws are fully—and
rightly—relegated to the dustbin of history. And so, too, is
Apodaca. While overruling precedent must be rare, this
Court should not shy away from correcting its errors where
Cite as: 590 U. S. ____ (2020) 5
SOTOMAYOR, J., concurring in part
the right to avoid imprisonment pursuant to unconstitu-
tional procedures hangs in the balance.
Cite as: 590 U. S. ____ (2020) 1
KAVANAUGH, J., concurring in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–5924
_________________
EVANGELISTO RAMOS, PETITIONER v. LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
OF LOUISIANA, FOURTH CIRCUIT
[April 20, 2020]
JUSTICE KAVANAUGH, concurring in part.
In Apodaca v. Oregon, this Court held that state juries
need not be unanimous in order to convict a criminal de-
fendant. 406 U.S. 404 (1972). Two States, Louisiana and
Oregon, have continued to use non-unanimous juries in
criminal cases. Today, the Court overrules Apodaca and
holds that state juries must be unanimous in order to
convict a criminal defendant.
I agree with the Court that the time has come to overrule
Apodaca. I therefore join the introduction and Parts I, II–A,
III, and IV–B–1 of the Court’s persuasive and important
opinion. I write separately to explain my view of how stare
decisis applies to this case.
I
The legal doctrine of stare decisis derives from the Latin
maxim “stare decisis et non quieta movere,” which means to
stand by the thing decided and not disturb the calm. The
doctrine reflects respect for the accumulated wisdom of
judges who have previously tried to solve the same problem.
In 1765, Blackstone—“the preeminent authority on English
law for the founding generation,” Alden v. Maine, 527 U.S.
706, 715 (1999)—wrote that “it is an established rule to
abide by former precedents,” to “keep the scale of justice
even and steady, and not liable to waver with every new
judge’s opinion.” 1 W. Blackstone, Commentaries on the
2 RAMOS v. LOUISIANA
KAVANAUGH, J., concurring in part
Laws of England 69 (1765). The Framers of our Constitu-
tion understood that the doctrine of stare decisis is part of
the “judicial Power” and rooted in Article III of the Consti-
tution. Writing in Federalist 78, Alexander Hamilton em-
phasized the importance of stare decisis: To “avoid an arbi-
trary discretion in the courts, it is indispensable” that
federal judges “should be bound down by strict rules and
precedents, which serve to define and point out their duty
in every particular case that comes before them.” The Fed-
eralist No. 78, p. 529 (J. Cooke ed. 1961). In the words of
THE CHIEF JUSTICE, stare decisis’ “greatest purpose is to
serve a constitutional ideal—the rule of law.” Citizens
United v. Federal Election Comm’n, 558 U.S. 310, 378
(2010) (concurring opinion).
This Court has repeatedly explained that stare decisis
“promotes the evenhanded, predictable, and consistent de-
velopment of legal principles, fosters reliance on judicial de-
cisions, and contributes to the actual and perceived integ-
rity of the judicial process.” Payne v. Tennessee, 501 U.S.
808, 827 (1991). The doctrine “permits society to presume
that bedrock principles are founded in the law rather than
in the proclivities of individuals, and thereby contributes to
the integrity of our constitutional system of government,
both in appearance and in fact.” Vasquez v. Hillery, 474
U.S. 254, 265–266 (1986).
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 ap-
propriate for the Court to overrule erroneous decisions. In-
deed, 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.
Cite as: 590 U. S. ____ (2020) 3
KAVANAUGH, J., concurring in part
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”).
Historically, moreover, some of the Court’s most notable
and consequential decisions have entailed overruling prec-
edent. See, e.g., Obergefell v. Hodges, 576 U.S. 644 (2015);
Citizens United v. Federal Election Comm’n, 558 U.S. 310
(2010); Montejo v. Louisiana, 556 U.S. 778 (2009); Craw-
ford v. Washington, 541 U.S. 36 (2004); Lawrence v. Texas,
539 U.S. 558 (2003); Ring v. Arizona, 536 U.S. 584 (2002);
Agostini v. Felton, 521 U.S. 203 (1997); Seminole Tribe of
Fla. v. Florida, 517 U.S. 44 (1996); Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833 (1992);1 Payne v.
Tennessee, 501 U.S. 808 (1991); Batson v. Kentucky, 476
U.S. 79 (1986); Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528 (1985); Illinois v. Gates, 462 U.S.
213 (1983); United States v. Scott, 437 U.S. 82 (1978); Craig
v. Boren, 429 U.S. 190 (1976); Taylor v. Louisiana, 419
U.S. 522 (1975); Brandenburg v. Ohio, 395 U.S. 444 (1969)
(per curiam); Katz v. United States, 389 U.S. 347 (1967);
Miranda v. Arizona, 384 U.S. 436 (1966); Malloy v. Hogan,
378 U.S. 1 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964);
Gideon v. Wainwright, 372 U.S. 335 (1963); Baker v. Carr,
369 U.S. 186 (1962); Mapp v. Ohio, 367 U.S. 643 (1961);
Brown v. Board of Education, 347 U.S. 483 (1954); Smith
v. Allwright, 321 U.S. 649 (1944); West Virginia Bd. of Ed.
v. Barnette, 319 U.S. 624 (1943); United States v. Darby,
312 U.S. 100 (1941); Erie R. Co. v. Tompkins, 304 U.S. 64
——————
1 In Casey, the Court reaffirmed what it described as the “central hold-
ing” of Roe v. Wade, 410 U.S. 113 (1973), the Court expressly rejected
Roe’s trimester framework, and the Court expressly overruled two other
important abortion precedents, Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416 (1983), and Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747 (1986). See Casey, 505
U.S., at 861; id., at 870, 873 (plurality opinion).
4 RAMOS v. LOUISIANA
KAVANAUGH, J., concurring in part
(1938); West Coast Hotel Co. v. Parrish, 300 U.S. 379
(1937).
The lengthy and extraordinary list of landmark cases
that overruled precedent includes the single most im-
portant and greatest decision in this Court’s history, Brown
v. Board of Education, which repudiated the separate but
equal doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896).
As those many examples demonstrate, the doctrine
of stare decisis does not dictate, and no one seriously
maintains, that the Court should never overrule erroneous
precedent. As the Court has often stated and repeats today,
stare decisis is not an “inexorable command.” E.g., ante,
at 20.
On the other hand, as Justice Jackson explained, just “be-
cause one should avoid Scylla is no reason for crashing into
Charybdis.” Jackson, Decisional Law and Stare Decisis, 30
A. B. A. J. 334 (1944). So no one advocates that the Court
should always overrule erroneous precedent.
Rather, applying the doctrine of stare decisis, this Court
ordinarily adheres to precedent, but sometimes overrules
precedent. The difficult question, then, is when to overrule
an erroneous precedent.
To begin with, the Court’s precedents on precedent
distinguish statutory cases from constitutional cases.
In statutory cases, stare decisis is comparatively strict, as
history shows and the Court has often stated. That is be-
cause Congress and the President can alter a statutory
precedent by enacting new legislation. To be sure, enacting
new legislation requires finding room in a crowded legisla-
tive docket and securing the agreement of the House, the
Senate (in effect, 60 Senators), and the President. Both by
design and as a matter of fact, enacting new legislation is
difficult—and far more difficult than the Court’s cases
sometimes seem to assume. Nonetheless, the Court has or-
dinarily left the updating or correction of erroneous statu-
tory precedents to the legislative process. See, e.g., Kimble
Cite as: 590 U. S. ____ (2020) 5
KAVANAUGH, J., concurring in part
v. Marvel Entertainment, LLC, 576 U.S. 446, 456–457
(2015); Patterson v. McLean Credit Union, 491 U.S. 164,
172–173 (1989); Flood v. Kuhn, 407 U.S. 258, 283–284
(1972). The principle that “it is more important that the
applicable rule of law be settled than that it be settled right”
is “commonly true even where the error is a matter of seri-
ous concern, provided correction can be had by legislation.”
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932)
(Brandeis, J., dissenting) (emphasis added).2
In constitutional cases, by contrast, the Court has repeat-
edly said—and says again today—that the doctrine of stare
decisis is not as “inflexible.” Burnet, 285 U.S., at 406
(Brandeis, J., dissenting); see also ante, at 20; Payne, 501
U.S., at 828; Scott, 437 U.S., at 101. The reason is
straightforward: As Justice O’Connor once wrote for the
Court, stare decisis is not as strict “when we interpret the
Constitution because our interpretation can be altered only
by constitutional amendment or by overruling our prior de-
cisions.” Agostini, 521 U.S., at 235. The Court therefore
“must balance the importance of having constitutional
questions decided against the importance of having them
decided right.” Citizens United, 558 U.S., at 378 (ROBERTS,
C. J., concurring). It follows “that in the unusual circum-
stance when fidelity to any particular precedent does more
to damage this constitutional ideal than to advance it, we
must be more willing to depart from that precedent.” Ibid.
In his canonical opinion in Burnet, Justice Brandeis de-
scribed the Court’s practice with respect to stare decisis in
constitutional cases in a way that was accurate then and
——————
2 The Court’s precedents applying common-law statutes and pronounc-
ing the Court’s own interpretive methods and principles typically do not
fall within that category of stringent statutory stare decisis. See Leegin
Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 899–907
(2007); Kisor v. Wilkie, 588 U. S. ___, ___–___ (2019) (GORSUCH, J., con-
curring in judgment) (slip op., at 34–36).
6 RAMOS v. LOUISIANA
KAVANAUGH, J., concurring in part
remains accurate now: In “cases involving the Federal Con-
stitution, where correction through legislative action is
practically impossible, this Court has often overruled
its earlier decisions.” 285 U.S., at 406–407 (dissenting
opinion).
That said, in constitutional as in statutory cases, to “over-
rule an important precedent is serious business.” Jackson,
30 A. B. A. J., at 334. In constitutional as in statutory
cases, adherence to precedent is the norm. To overrule a
constitutional decision, the Court’s precedents on precedent
still require a “special justification,” Allen v. Cooper, 589
U. S. ___, ___ (2020) (slip op., at 9) (internal quotation
marks omitted); Arizona v. Rumsey, 467 U.S. 203, 212
(1984), or otherwise stated, “strong grounds,” Janus, 585
U. S., at ___ (slip op., at 34).
In particular, to overrule a constitutional precedent, the
Court requires something “over and above the belief that
the precedent was wrongly decided.” Allen, 589 U. S., at ___
(slip op., at 9) (internal quotation marks omitted). As Jus-
tice Scalia put it, the doctrine of stare decisis always re-
quires “reasons that go beyond mere demonstration that
the overruled opinion was wrong,” for “otherwise the doc-
trine would be no doctrine at all.” Hubbard v. United
States, 514 U.S. 695, 716 (1995) (opinion concurring in part
and concurring in judgment). To overrule, the Court de-
mands a special justification or strong grounds.
But the “special justification” or “strong grounds” formu-
lation elides a key question: What constitutes a special jus-
tification or strong grounds?3 In other words, in deciding
whether to overrule an erroneous constitutional decision,
——————
3 The Court first used the term “special justification” in the stare deci-
sis context in 1984, without explaining what the term might entail. See
Arizona v. Rumsey, 467 U.S. 203, 212. In employing that term, the
Court did not suggest that it was imposing a new stare decisis require-
ment as opposed to merely describing the Court’s historical practice with
respect to stare decisis.
Cite as: 590 U. S. ____ (2020) 7
KAVANAUGH, J., concurring in part
how does the Court know when to overrule and when to
stand pat?
As the Court has exercised the “judicial Power” over time,
the Court has identified various stare decisis factors. In ar-
ticulating and applying those factors, the Court has, to bor-
row James Madison’s words, sought to liquidate and ascer-
tain the meaning of the Article III “judicial Power” with
respect to precedent. The Federalist No. 37, at 236.
The stare decisis factors identified by the Court in its past
cases include:
 the quality of the precedent’s reasoning;
 the precedent’s consistency and coherence with pre-
vious or subsequent decisions;
 changed law since the prior decision;
 changed facts since the prior decision;
 the workability of the precedent;
 the reliance interests of those who have relied on the
precedent; and
 the age of the precedent.
But the Court has articulated and applied those various in-
dividual factors without establishing any consistent meth-
odology or roadmap for how to analyze all of the factors
taken together. And in my view, that muddle poses a prob-
lem for the rule of law and for this Court, as the Court at-
tempts to apply stare decisis principles in a neutral and con-
sistent manner.
As I read the Court’s cases on precedent, those varied and
somewhat elastic stare decisis factors fold into three broad
considerations that, in my view, can help guide the inquiry
and help determine what constitutes a “special justifica-
tion” or “strong grounds” to overrule a prior constitutional
decision.
First, is the prior decision not just wrong, but grievously
or egregiously wrong? A garden-variety error or disagree-
ment does not suffice to overrule. In the view of the Court
8 RAMOS v. LOUISIANA
KAVANAUGH, J., concurring in part
that is considering whether to overrule, the precedent must
be egregiously wrong as a matter of law in order for the
Court to overrule it. In conducting that inquiry, the Court
may examine the quality of the precedent’s reasoning, con-
sistency and coherence with other decisions, changed law,
changed facts, and workability, among other factors. A
case may be egregiously wrong when decided, see, e.g.,
Korematsu v. United States, 323 U.S. 214 (1944); Plessy v.
Ferguson, 163 U.S. 537 (1896), or may be unmasked as
egregiously wrong based on later legal or factual under-
standings or developments, see, e.g., Nevada v. Hall, 440
U.S. 410 (1979), or both, ibid.
Second, has the prior decision caused significant negative
jurisprudential or real-world consequences? In conducting
that inquiry, the Court may consider jurisprudential conse-
quences (some of which are also relevant to the first in-
quiry), such as workability, as well as consistency and co-
herence with other decisions, among other factors.
Importantly, the Court may also scrutinize the precedent’s
real-world effects on the citizenry, not just its effects on the
law and the legal system. See, e.g., Brown v. Board of Ed-
ucation, 347 U.S., at 494–495; Barnette, 319 U.S., at 630–
642; see also Payne, 501 U.S., at 825–827.
Third, would overruling the prior decision unduly upset
reliance interests? This consideration focuses on the legiti-
mate expectations of those who have reasonably relied on
the precedent. In conducting that inquiry, the Court may
examine a variety of reliance interests and the age of the
precedent, among other factors.
In short, the first consideration requires inquiry into how
wrong the precedent is as a matter of law. The second and
third considerations together demand, in Justice Jackson’s
words, a “sober appraisal of the disadvantages of the inno-
vation as well as those of the questioned case, a weighing of
practical effects of one against the other.” Jackson, 30
A. B. A. J., at 334.
Cite as: 590 U. S. ____ (2020) 9
KAVANAUGH, J., concurring in part
Those three considerations together provide a structured
methodology and roadmap for determining whether to over-
rule an erroneous constitutional precedent. The three con-
siderations correspond to the Court’s historical practice and
encompass the various individual factors that the Court has
applied over the years as part of the stare decisis calculus.
And they are consistent with the Founding understanding
and, for example, Blackstone’s shorthand description that
overruling is warranted when (and only when) a precedent
is “manifestly absurd or unjust.” 1 Blackstone, Commen-
taries on the Laws of England, at 70.
Taken together, those three considerations set a high (but
not insurmountable) bar for overruling a precedent, and
they therefore limit the number of overrulings and main-
tain stability in the law.4 Those three considerations also
constrain judicial discretion in deciding when to overrule an
erroneous precedent. To be sure, applying those considera-
tions is not a purely mechanical exercise, and I do not claim
otherwise. I suggest only that those three considerations
may better structure how to consider the many traditional
stare decisis factors.
It is inevitable that judges of good faith applying the stare
decisis considerations will sometimes disagree about when
to overrule an erroneous constitutional precedent, as the
Court does in this case. To begin with, judges may disagree
about whether a prior decision is wrong in the first place—
and importantly, that disagreement is sometimes the real
dispute when judges joust over stare decisis. But even when
judges agree that a prior decision is wrong, they may dis-
agree about whether the decision is so egregiously wrong as
to justify an overruling. Judges may likewise disagree
——————
4 Another important factor that limits the number of overrulings is that
the Court typically does not overrule a precedent unless a party
requests overruling, or at least unless the Court receives briefing and
argument on the stare decisis question.
10 RAMOS v. LOUISIANA
KAVANAUGH, J., concurring in part
about the severity of the jurisprudential or real-world con-
sequences caused by the erroneous decision and, therefore,
whether the decision is worth overruling. In that regard,
some judges may think that the negative consequences can
be addressed by narrowing the precedent (or just living
with it) rather than outright overruling it. Judges may also
disagree about how to measure the relevant reliance inter-
ests that might be affected by an overruling. And on top of
all of that, judges may also disagree about how to weigh and
balance all of those competing considerations in a given
case.5
This case illustrates that point. No Member of the Court
contends that the result in Apodaca is correct. But the
Members of the Court vehemently disagree about whether
to overrule Apodaca.
II
Applying the three broad stare decisis considerations to
this case, I agree with the Court’s decision to overrule
Apodaca.
First, Apodaca is egregiously wrong. The original mean-
ing and this Court’s precedents establish that the Sixth
Amendment requires a unanimous jury. Ante, at 6–7; see,
e.g., Patton v. United States, 281 U.S. 276, 288 (1930);
Thompson v. Utah, 170 U.S. 343, 351 (1898). And the orig-
inal meaning and this Court’s precedents establish that the
Fourteenth Amendment incorporates the Sixth Amend-
——————
5 To be clear, the stare decisis issue in this case is one of horizontal
stare decisis—that is, the respect that this Court owes to its own prece-
dents and the circumstances under which this Court may appropriately
overrule a precedent. By contrast, vertical stare decisis is absolute, as it
must be in a hierarchical system with “one supreme Court.” U. S. Const.,
Art III, §1. In other words, the state courts and the other federal courts
have a constitutional obligation to follow a precedent of this Court
unless and until it is overruled by this Court. See Rodriguez de Quijas
v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).
Cite as: 590 U. S. ____ (2020) 11
KAVANAUGH, J., concurring in part
ment jury trial right against the States. See Duncan v. Lou-
isiana, 391 U.S. 145, 149 (1968); id., at 166 (Black, J., con-
curring); see also Malloy, 378 U.S., at 10–11; see generally
Timbs v. Indiana, 586 U. S. ___ (2019); McDonald v. Chi-
cago, 561 U.S. 742 (2010). When Apodaca was decided, it
was already an outlier in the Court’s jurisprudence, and
over time it has become even more of an outlier. As the
Court today persuasively explains, the original meaning of
the Sixth and Fourteenth Amendments and this Court’s
two lines of decisions—the Sixth Amendment jury cases
and the Fourteenth Amendment incorporation cases—over-
whelmingly demonstrate that Apodaca’s holding is egre-
giously wrong.6
——————
6 Notwithstanding the splintered 4–1–4 decision in Apodaca, its bottom-
line result carried precedential force. In the American system of stare
decisis, the result and the reasoning each independently have preceden-
tial force, and courts are therefore bound to follow both the result and
the reasoning of a prior decision. See Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 67 (1996); Randall v. Sorrell, 548 U.S. 230, 243 (2006)
(opinion of BREYER, J.); County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989) (Kennedy,
J., concurring in judgment in part and dissenting in part). The result of
Apodaca was that state criminal juries need not be unanimous. That
precedential result has been followed by this Court and the other federal
and state courts for the last 48 years. To be sure, Apodaca had no ma-
jority opinion. When the Court’s decision is splintered, courts follow the
result, and they also follow the reasoning or standards set forth in the
opinion constituting the “narrowest grounds” of the Justices in the ma-
jority. See Marks v. United States, 430 U.S. 188, 193 (1977). That Marks
rule is ordinarily commonsensical to apply and usually means that courts
in essence heed the opinion that occupies the middle-ground position be-
tween (i) the broadest opinion among the Justices in the majority and
(ii) the dissenting opinion. See United States v. Duvall, 740 F.3d 604,
610–611 (CADC 2013) (Kavanaugh, J., concurring in denial of rehearing
en banc). On very rare occasions, as in Apodaca, it can be difficult to
discern which opinion’s reasoning has precedential effect under Marks.
See also Nichols v. United States, 511 U.S. 738, 745–746 (1994) (analyz-
ing Baldasar v. Illinois, 446 U.S. 222 (1980) (per curiam)). But even
when that happens, the result of the decision still constitutes a binding
precedent for the federal and state courts, and for this Court, unless and
12 RAMOS v. LOUISIANA
KAVANAUGH, J., concurring in part
Second, Apodaca causes significant negative conse-
quences. It is true that Apodaca is workable. But Apodaca
sanctions the conviction at trial or by guilty plea of some
defendants who might not be convicted under the proper
constitutional rule (although exactly how many is of course
unknowable). That consequence has traditionally supplied
some support for overruling an egregiously wrong criminal-
procedure precedent. See generally Malloy, 378 U.S. 1.
In addition, and significant to my analysis of this case,
the origins and effects of the non-unanimous jury rule
strongly support overruling Apodaca. Louisiana achieved
statehood in 1812. And throughout most of the 1800s, the
State required unanimous juries in criminal cases. But at
its 1898 state constitutional convention, Louisiana en-
shrined non-unanimous juries into the state constitution.
Why the change? The State wanted to diminish the influ-
ence of black jurors, who had won the right to serve on ju-
ries through the Fourteenth Amendment in 1868 and the
Civil Rights Act of 1875. See Strauder v. West Virginia, 100
U.S. 303, 308–310 (1880); T. Aiello, Jim Crow’s Last Stand:
Nonunanimous Criminal Jury Verdicts in Louisiana 16, 19
(2015). Coming on the heels of the State’s 1896 victory in
Plessy v. Ferguson, 163 U.S. 537, the 1898 constitutional
convention expressly sought to “establish the supremacy of
the white race.” Semmes, Chairman of the Committee on
the Judiciary, Address at the Louisiana Constitutional Con-
vention in 1898, in Official Journal of the Proceedings of the
Constitutional Convention of the State of Louisiana 375
(H. Hearsey ed. 1898). And the convention approved non-
unanimous juries as one pillar of a comprehensive and bru-
tal program of racist Jim Crow measures against African-
Americans, especially in voting and jury service. See Aiello,
——————
until it is overruled by this Court. As I read the Court’s various opinions
today, six Justices treat the result in Apodaca as a precedent for pur-
poses of stare decisis analysis. A different group of six Justices concludes
that Apodaca should be and is overruled.
Cite as: 590 U. S. ____ (2020) 13
KAVANAUGH, J., concurring in part
supra, at 16–26; Frampton, The Jim Crow Jury, 71 Vand.
L. Rev. 1593, 1620 (2018).7
In light of the racist origins of the non-unanimous jury, it
is no surprise that non-unanimous juries can make a differ-
ence in practice, especially in cases involving black defend-
ants, victims, or jurors. After all, that was the whole point
of adopting the non-unanimous jury requirement in the
first place. And the math has not changed. Then and now,
non-unanimous juries can silence the voices and negate the
votes of black jurors, especially in cases with black defend-
ants or black victims, and only one or two black jurors. The
10 jurors “can simply ignore the views of their fellow panel
members of a different race or class.” Johnson v. Louisiana,
406 U.S. 356, 397 (1972) (Stewart, J., dissenting). That
reality—and the resulting perception of unfairness and ra-
cial bias—can undermine confidence in and respect for the
criminal justice system. The non-unanimous jury operates
much the same as the unfettered peremptory challenge, a
practice that for many decades likewise functioned as an
engine of discrimination against black defendants, victims,
and jurors. In effect, the non-unanimous jury allows back-
door and unreviewable peremptory strikes against up to 2
of the 12 jurors.
In its 1986 decision in Batson v. Kentucky, the Court rec-
ognized the pervasive racial discrimination woven into the
traditional system of unfettered peremptory challenges.
See 476 U.S., at 85–89, 91. The Court therefore overruled
a prior decision, Swain v. Alabama, 380 U.S. 202 (1965),
that had allowed those challenges. See generally Flowers
——————
7 Oregon adopted the non-unanimous jury practice in 1934—one man-
ifestation of the extensive 19th- and early 20th-century history of racist
and anti-Semitic sentiment in that State. See Kaplan & Saack, Over-
turning Apodaca v. Oregon Should Be Easy: Nonunanimous Jury Ver-
dicts in Criminal Cases Undermine the Credibility of Our Justice Sys-
tem, 95 Or. L. Rev. 1, 3, 43–51 (2016); Mooney, Remembering 1857, 87
Or. L. Rev. 731, 778, n. 174 (2008).
14 RAMOS v. LOUISIANA
KAVANAUGH, J., concurring in part
v. Mississippi, 588 U. S. ___ (2019).
In my view, Apodaca warrants the same fate as Swain.
After all, the “requirements of unanimity and impartial se-
lection thus complement each other in ensuring the fair per-
formance of the vital functions of a criminal court jury.”
Johnson, 406 U.S., at 398 (Stewart, J., dissenting). And as
Justice Thurgood Marshall forcefully explained in dissent
in Apodaca, to “fence out a dissenting juror fences out a
voice from the community, and undermines the principle on
which our whole notion of the jury now rests.” Johnson, 406
U.S., at 402 (Marshall, J., dissenting in both Johnson and
Apodaca).
To be clear, one could advocate for and justify a non-
unanimous jury rule by resort to neutral and legitimate
principles. England has employed non-unanimous juries,
and various legal organizations in the United States have
at times championed non-unanimous juries. See, e.g., Ju-
ries Act 1974, ch. 23, §17 (Eng.); ABA Project on Standards
for Criminal Justice, Trial By Jury §1.1, p. 7 (App. Draft
1968); ALI, Code of Criminal Procedure §355, p. 99 (1930).
And Louisiana’s modern policy decision to retain non-
unanimous juries—as distinct from its original decision in
the late 1800s to adopt non-unanimous juries—may have
been motivated by neutral principles (or just by inertia).
But the question at this point is not whether the Consti-
tution prohibits non-unanimous juries. It does. Rather, the
disputed question here is whether to overrule an erroneous
constitutional precedent that allowed non-unanimous
juries. And on that question—the question whether to
overrule—the Jim Crow origins and racially discriminatory
effects (and the perception thereof ) of non-unanimous
juries in Louisiana and Oregon should matter and should
count heavily in favor of overruling, in my respectful view.
After all, the non-unanimous jury “is today the last of Lou-
isiana’s Jim Crow laws.” Aiello, supra, at 63. And this
Court has emphasized time and again the “imperative to
Cite as: 590 U. S. ____ (2020) 15
KAVANAUGH, J., concurring in part
purge racial prejudice from the administration of justice”
generally and from the jury system in particular. Pena-
Rodriguez v. Colorado, 580 U. S. ___, ___–___ (2017) (slip
op., at 13–14) (collecting cases).
To state the point in simple terms: Why stick by an erro-
neous precedent that is egregiously wrong as a matter of
constitutional law, that allows convictions of some who
would not be convicted under the proper constitutional rule,
and that tolerates and reinforces a practice that is thor-
oughly racist in its origins and has continuing racially
discriminatory effects?
Third, overruling Apodaca would not unduly upset reli-
ance interests. Only Louisiana and Oregon employ non-
unanimous juries in criminal cases. To be sure, in those
two States, the Court’s decision today will invalidate some
non-unanimous convictions where the issue is preserved
and the case is still on direct review. But that consequence
almost always ensues when a criminal-procedure precedent
that favors the government is overruled. See Ring, 536
U.S. 584; Batson, 476 U.S. 79. And here, at least, I would
“count that a small price to pay for the uprooting of this
weed.” Hubbard, 514 U.S., at 717 (Scalia, J., concurring in
part and concurring in judgment).
Except for the effects on that limited class of direct-
review cases, it will be relatively easy going forward for Lou-
isiana and Oregon to transition to the unanimous jury rule
that the other 48 States and the federal courts use. Indeed,
in 2018, Louisiana amended its constitution to require jury
unanimity in criminal trials for crimes committed on or af-
ter January 1, 2019, meaning that the transition is already
well under way in Louisiana.
Importantly, moreover, this Court applies a separate
non-retroactivity doctrine to mitigate the disruptive effects
of overrulings in criminal cases. Under the Court’s prece-
dents, new constitutional rules apply on direct review, but
16 RAMOS v. LOUISIANA
KAVANAUGH, J., concurring in part
generally do not apply retroactively on habeas corpus re-
view. See Teague v. Lane, 489 U.S. 288, 311 (1989) (plu-
rality opinion); Griffith v. Kentucky, 479 U.S. 314, 328
(1987). Teague recognizes only two exceptions to that gen-
eral habeas non-retroactivity principle: “if (1) the rule is
substantive or (2) the rule is a ‘watershed rul[e] of criminal
procedure’ implicating the fundamental fairness and accu-
racy of the criminal proceeding.” Whorton v. Bockting, 549
U.S. 406, 416 (2007) (internal quotation marks omitted).
The new rule announced today—namely, that state crimi-
nal 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 ha-
beas corpus review.
The first Teague exception does not apply because today’s
new rule is procedural, not substantive: It affects “only the
manner of determining the defendant’s culpability.”
Schriro v. Summerlin, 542 U.S. 348, 353 (2004).
The second Teague exception does not apply because to-
day’s new rule, while undoubtedly important, is not a “wa-
tershed” procedural rule. This Court has flatly stated that
“it is unlikely that any such rules” have “yet to emerge.”
Whorton, 549 U.S., at 417 (internal quotation marks omit-
ted). In “the years since Teague, we have rejected every
claim that a new rule satisfied the requirements for water-
shed status.” Id., at 418, 421 (rejecting retroactivity for
Crawford v. Washington, 541 U.S. 36 (2004)); see, e.g.,
Beard v. Banks, 542 U.S. 406, 420 (2004) (rejecting retro-
activity for Mills v. Maryland, 486 U.S. 367 (1988)); Sum-
merlin, 542 U.S., at 358 (rejecting retroactivity for Ring v.
Arizona, 536 U.S. 584 (2002)); O’Dell v. Netherland, 521
U.S. 151, 167–168 (1997) (rejecting retroactivity for Sim-
mons v. South Carolina, 512 U.S. 154 (1994)); Lambrix v.
Singletary, 520 U.S. 518, 539–540 (1997) (rejecting retro-
activity for Espinosa v. Florida, 505 U.S. 1079 (1992) (per
curiam)); Sawyer v. Smith, 497 U.S. 227, 241–245 (1990)
Cite as: 590 U. S. ____ (2020) 17
KAVANAUGH, J., concurring in part
(rejecting retroactivity for Caldwell v. Mississippi, 472
U.S. 320 (1985)); see also Allen v. Hardy, 478 U.S. 255, 261
(1986) (per curiam) (rejecting retroactivity for Batson v.
Kentucky, 476 U.S. 79 (1986)); DeStefano v. Woods, 392
U.S. 631, 635 (1968) (per curiam) (rejecting retroactivity
for Duncan, 391 U.S. 145).
So assuming that the Court faithfully applies Teague,
today’s decision will not apply retroactively on federal
habeas corpus review and will not disturb convictions that
are final.8
In addition, as to ineffective-assistance-of-counsel claims,
an attorney presumably would not have been deficient for
failing to raise a constitutional jury-unanimity argument
before today’s decision—or at the very least, before the
Court granted certiorari in this case. Before today, after
all, this Court’s precedents had repeatedly allowed non-
unanimous juries in state criminal cases. In that situation,
the Courts of Appeals have consistently held that an attor-
ney is not ineffective for failing to anticipate or advocate for
the overruling of a constitutional precedent of this Court.
See, e.g., Walker v. United States, 810 F.3d 568, 577 (CA8
2016); United States v. Smith, 241 F.3d 546, 548 (CA7
2001); Honeycutt v. Mahoney, 698 F.2d 213, 216–217 (CA4
1983); see also Steiner v. United States, 940 F.3d 1282,
1293 (CA11 2019) (per curiam); Snider v. United States, 908
F.3d 183, 192 (CA6 2018); Green v. Johnson, 116 F.3d
1115, 1125 (CA5 1997).
For those reasons, the reliance interests at stake in this
case are not especially substantial, and they do not man-
date adherence to Apodaca.9
——————
8 In Allen v. Hardy, 478 U.S. 255 (1986) (per curiam), this Court con-
cluded—without briefing or oral argument—that Batson would not apply
retroactively. Under the well-settled Teague principles, there should be
no doubt that today’s decision likewise will not apply retroactively on
collateral review.
9 JUSTICE ALITO’s characteristically incisive dissent rests largely on his
18 RAMOS v. LOUISIANA
KAVANAUGH, J., concurring in part
* * *
In sum, Apodaca is egregiously wrong, it has significant
negative consequences, and overruling it would not unduly
upset reliance interests. I therefore agree with the Court’s
decision to overrule Apodaca.10
——————
view of the States’ reliance interests. My respectful disagreement with
JUSTICE ALITO primarily boils down to our different assessments of those
reliance interests—in particular, our different evaluations of how readily
Louisiana and Oregon can adjust to an overruling of Apodaca.
10 As noted above, 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 Apo-
daca as a precedent and therefore do not subscribe to the analysis in Part
IV–A of JUSTICE GORSUCH’s opinion.
Cite as: 590 U. S. ____ (2020) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–5924
_________________
EVANGELISTO RAMOS, PETITIONER v. LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
OF LOUISIANA, FOURTH CIRCUIT
[April 20, 2020]
JUSTICE THOMAS, concurring in the judgment.
I agree with the Court that petitioner Evangelisto Ramos’
felony conviction by a nonunanimous jury was unconstitu-
tional. I write separately because I would resolve this case
based on the Court’s longstanding view that the Sixth
Amendment includes a protection against nonunanimous
felony guilty verdicts, without undertaking a fresh analysis
of the meaning of “trial . . . by an impartial jury.” I also
would make clear that this right applies against the States
through the Privileges or Immunities Clause of the Four-
teenth Amendment, not the Due Process Clause.
I
I begin with the parties’ dispute as to whether the Sixth
Amendment right to a trial by jury includes a protection
against nonunanimous felony guilty verdicts. On this ques-
tion, I do not write on a blank slate. As the Court acknowl-
edges, our decisions have long recognized that unanimity is
required. See ante, at 6–7. Because this interpretation is
not demonstrably erroneous, I would resolve the Sixth
Amendment question on that basis.
A
This Court first decided that the Sixth Amendment pro-
tected a right to unanimity in Thompson v. Utah, 170 U.S.
343 (1898). The Court reasoned that Thompson, a Utah
prisoner, was protected by the Sixth Amendment when
2 RAMOS v. LOUISIANA
THOMAS, J., concurring in judgment
Utah was still a Territory because “the right of trial by jury
in suits at common law appl[ied] to the Territories of the
United States.” Id., at 346. The Court then stated that this
right “made it impossible to deprive him of his liberty ex-
cept by [a] unanimous verdict.” Id., at 355; see also id., at
351, 353.
The Court has repeatedly reaffirmed the Sixth Amend-
ment’s unanimity requirement. In Patton v. United States,
281 U.S. 276 (1930), the Court stated that the Sixth
Amendment protects the right “that the verdict should be
unanimous,” id., at 288. In Andres v. United States, 333
U.S. 740 (1948), the Court repeated that “[u]nanimity in
jury verdicts is required” by the Sixth Amendment, id., at
748. And in Apodaca v. Oregon, 406 U.S. 404 (1972), five
Justices agreed that “the Sixth Amendment’s guarantee of
trial by jury embraces a guarantee that the verdict of the
jury must be unanimous,” id., at 414 (Stewart, J., joined by
Brennan and Marshall, JJ., dissenting); see also Johnson v.
Louisiana, 406 U.S. 356, 371 (1972) (Powell, J., concurring)
(explaining views in Apodaca and its companion case); id.,
at 382–383 (Douglas, J., joined by Brennan and Marshall,
JJ., dissenting) (same). We have accepted this interpreta-
tion of the Sixth Amendment in recent cases. See Southern
Union Co. v. United States, 567 U.S. 343, 356 (2012);
Blakely v. Washington, 542 U.S. 296, 301 (2004); Apprendi
v. New Jersey, 530 U.S. 466, 477 (2000).
B
The question then becomes whether these decisions are
entitled to stare decisis effect. As I have previously ex-
plained, “the Court’s typical formulation of the stare decisis
standard does not comport with our judicial duty under Ar-
ticle III because it elevates demonstrably erroneous deci-
sions—meaning decisions outside the realm of permissible
interpretation—over the text of the Constitution and other
duly enacted federal law.” Gamble v. United States, 587
Cite as: 590 U. S. ____ (2020) 3
THOMAS, J., concurring in judgment
U. S. ___, ___ (2019) (concurring opinion) (slip op., at 2).
There is considerable evidence that the phrase “trial . . . by
. . . jury” in the Sixth Amendment was understood since the
founding to require that a felony guilty verdict be unani-
mous. Because our precedents are thus not outside the
realm of permissible interpretation, I will apply them.
1
Blackstone—“the preeminent authority on English law
for the founding generation,” Alden v. Maine, 527 U.S. 706,
715 (1999)—wrote that no subject can “be affected either in
his property, his liberty, or his person, but by the unani-
mous consent” of a jury, 3 W. Blackstone, Commentaries on
the Laws of England 379 (1772); see also 4 id., at 343. An-
other influential treatise author, Hale, wrote that “the law
of England hath afforded the best method of trial, that is
possible, . . . namely by a jury . . . all concurring in the same
judgment.” 1 M. Hale, Pleas of the Crown 33 (1736) (em-
phasis deleted). Such views continued in scholarly works
throughout the early Republic. See, e.g., 2 J. Story, Com-
mentaries on the Constitution of the United States §777,
p. 248 (1833); 6 N. Dane, Digest of American Law, ch.
LXXXII, Art. 2, §1, p. 226 (1824); 2 J. Wilson, Works of the
Honourable James Wilson 349–350 (1804).
The uniform practice among the States was in accord.
Despite isolated 17th-century colonial practices allowing
nonunanimous juries, “unanimity became the accepted rule
during the 18th century, as Americans became more famil-
iar with the details of English common law and adopted
those details in their own colonial legal systems.” Apodaca,
supra, at 408, n. 3 (plurality opinion). In the founding era,
six States explicitly mentioned unanimity in their constitu-
tions. See Del. Declaration of Rights §14 (1776); Md. Dec-
laration of Rights, Art. XIX (1776); N. C. Declaration of
Rights §IX (1776); Pa. Declaration of Rights, Art. IX (1776);
Vt. Const., Art. XI (1786); Va. Declaration of Rights §8
4 RAMOS v. LOUISIANA
THOMAS, J., concurring in judgment
(1776). Four more States clearly referred to the common-
law jury right, which included unanimity. Ky. Const., Art.
XII, §6 (1792); N. J. Const., Art. XXII (1776); N. Y. Const.,
Art. XLI (1777); S. C. Const., Art. IX, §6 (1790). Some
States did not explicitly refer to either the common law or
unanimity. See, e.g., Ga. Const., Art. LXI (1777); Mass.
Declaration of Rights, Art. XII (1780). But there is reason
to believe that they nevertheless understood unanimity to
be required. See, e.g., Rouse v. State, 4 Ga. 136, 147 (1848).
In light of the express language used in some State Con-
stitutions, respondent Louisiana argues that the omission
of an express unanimity requirement in the Sixth Amend-
ment reflects a deliberate choice. This argument fails to
establish that the Court’s decisions are demonstrably erro-
neous. The House of Representatives passed a version of
the amendment providing that “[t]he trial of all crimes . . .
shall be by an impartial jury of freeholders of the vicinage,
with the requisite of unanimity for conviction, of the right
of challenge, and other accustomed requisites,” 1 Annals of
Cong. 435 (1789), but the final Amendment contained no
reference to vicinage or unanimity. See Amdt. 6. I agree
with Justice Harlan and the Court that “the meaning of this
change is wholly speculative” and that there is “no concrete
evidence” that the Senate rejected the requirement of una-
nimity. Baldwin v. New York, 399 U.S. 66, 123, n. 9 (1970)
(Harlan, J., dissenting); see also ante, at 11–12; Letter from
J. Madison to E. Pendleton (Sept. 14, 1789), in 1 Letters and
Other Writings of James Madison 491 (1867). There is thus
sufficient evidence to support this Court’s prior interpreta-
tion that the Sixth Amendment right to a trial by jury re-
quires unanimity.
2
There is also considerable evidence that this understand-
ing persisted up to the time of the Fourteenth Amendment’s
Cite as: 590 U. S. ____ (2020) 5
THOMAS, J., concurring in judgment
ratification. State courts, for example, continued to inter-
pret the phrase “trial by jury” to require unanimity in fel-
ony guilty verdicts. The New Hampshire Superior Court of
Judicature expounded on the point:
“The terms ‘jury,’ and ‘trial by jury,’ are, and for ages
have been well known in the language of the law. They
were used at the adoption of the constitution, and al-
ways, it is believed, before that time, and almost al-
ways since, in a single sense.
“A jury for the trial of a cause . . . must return their
unanimous verdict upon the issue submitted to them.
“All the books of the law describe a trial jury substan-
tially as we have stated it. And a ‘trial by jury’ is a trial
by such a body, so constituted and conducted. So far as
our knowledge extends, these expressions were used at
the adoption of the constitution and always before, in
these senses alone by all classes of writers and speak-
ers.” Opinion of Justices, 41 N. H. 550, 551–552 (1860).
Other state courts held the same view. The Missouri Su-
preme Court in 1860 called unanimity one of the “essential
requisites in a jury trial,” Vaughn v. Scade, 30 Mo. 600, 603,
and the Ohio Supreme Court in 1853 called it one of “the
essential and distinguishing features of the trial by jury, as
known at common law, and generally, if not universally,
adopted in this country,” Work v. State, 2 Ohio St. 296, 306.
Treatises from the Reconstruction era likewise adopted
this position. A leading work on criminal procedure ex-
plained that if a “statute authorizes [a jury] to find a verdict
upon anything short of . . . unanimous consent,” it “is void.”
1 J. Bishop, Criminal Procedure §761, p. 532 (1866). A
widely read treatise on constitutional law reiterated that
“ ‘by a jury’ is generally understood to mean” a body that
“must unanimously concur in the guilt of the accused before
a conviction can be had.” G. Paschal, The Constitution of
the United States 210 (1876) (capitalization omitted). And
6 RAMOS v. LOUISIANA
THOMAS, J., concurring in judgment
a volume on the jury trial was in agreement. See J. Proffatt,
Trial by Jury §77, p. 112 (1877).
* * *
Based on this evidence, the Court’s prior interpretation
of the Sixth Amendment’s guarantee is not demonstrably
erroneous. It is within the realm of permissible interpreta-
tions to say that “trial . . . by . . . jury” in that Amendment
includes a protection against nonunanimous felony guilty
verdicts.
II
The remaining question is whether that right is protected
against the States. In my view, the Privileges or Immuni-
ties Clause provides this protection. I do not adhere to this
Court’s decisions applying due process incorporation, in-
cluding Apodaca and—it seems—the Court’s opinion in this
case.
The Privileges or Immunities Clause provides that “[n]o
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.”
Amdt. 14, §1. At the time of the Fourteenth Amendment’s
ratification, “the terms ‘privileges’ and ‘immunities’ had an
established meaning as synonyms of ‘rights.’ ” McDonald v.
Chicago, 561 U.S. 742, 813 (2010) (THOMAS, J., concurring
in part and concurring in judgment). “[T]he ratifying public
understood the Privileges or Immunities Clause to protect
constitutionally enumerated rights” against abridgment by
the States. Id., at 837. The Sixth Amendment right to a
trial by jury is certainly a constitutionally enumerated
right. See Maxwell v. Dow, 176 U.S. 581, 606–608 (1900)
(Harlan, J., dissenting).
The Court, however, has made the Due Process Clause
serve the function that the Privileges or Immunities Clause
should serve. Although the Privileges or Immunities
Clause grants “United States citizens a certain collection of
Cite as: 590 U. S. ____ (2020) 7
THOMAS, J., concurring in judgment
rights—i.e., privileges or immunities—attributable to that
status,” the Court has interpreted the Clause “quite nar-
rowly.” McDonald, 561 U.S., at 808 (opinion of THOMAS,
J.). Perhaps to compensate for this limited view of the Priv-
ileges or Immunities Clause, it has incorporated individual
rights against the States through the Due Process Clause.
Id., at 809.
Due process incorporation is a demonstrably erroneous
interpretation of the Fourteenth Amendment. As I have ex-
plained before, “[t]he notion that a constitutional provision
that guarantees only ‘process’ before a person is deprived of
life, liberty, or property could define the substance of those
rights strains credulity for even the most casual user of
words.” Id., at 811. The unreasonableness of this interpre-
tation is underscored by the Court’s struggle to find a “guid-
ing principle to distinguish ‘fundamental’ rights that war-
rant protection from nonfundamental rights that do not,”
ibid., as well as its many incorrect decisions based on this
theory, see Obergefell v. Hodges, 576 U.S. 644 (2015); Roe
v. Wade, 410 U.S. 113 (1973); Dred Scott v. Sandford, 19
How. 393 (1857).
I “decline to apply the legal fiction” of due process incor-
poration. Timbs v. Indiana, 586 U. S. ___, ___ (2019)
(THOMAS, J., concurring in judgment) (slip op., at 3) (inter-
nal quotation marks omitted). As a result, I part ways with
the Court on both its affirmative argument about the Four-
teenth Amendment and its treatment of Apodaca, in which
five Justices agreed the Sixth Amendment included a right
to unanimity but a different majority concluded that the
right did not apply to the States. See ante, at 7–11.
I would accept petitioner’s invitation to decide this case
under the Privileges or Immunities Clause. The Court con-
spicuously avoids saying which clause it analyzes. See, e.g.,
ante, at 3, 7. But one assumes from its silence that the
Court is either following our due process incorporation prec-
edents or believes that “nothing in this case turns on” which
8 RAMOS v. LOUISIANA
THOMAS, J., concurring in judgment
clause applies, Timbs, supra, at ___ (GORSUCH, J., concur-
ring) (slip op., at 1).
I have already rejected our due process incorporation
cases as demonstrably erroneous, and I fundamentally dis-
agree with applying that theory of incorporation simply be-
cause it reaches the same result in the case before us. Close
enough is for horseshoes and hand grenades, not constitu-
tional interpretation. The textual difference between pro-
tecting “citizens” (in the Privileges or Immunities Clause)
and “person[s]” (in the Due Process Clause) will surely be
relevant in another case. And our judicial duty—not to
mention the candor we owe to our fellow citizens—requires
us to put an end to this Court’s due process prestidigitation,
which no one is willing to defend on the merits.
I would simply hold that, because all of the opinions in
Apodaca addressed the Due Process Clause, its Fourteenth
Amendment ruling does not bind us because the proper
question here is the scope of the Privileges or Immunities
Clause. I cannot understand why the Court, having decided
to abandon Apodaca, refuses to correctly root its holding in
the Privileges or Immunities Clause.1
III
There is no need to prove the original meaning of the
——————
1 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 incor-
rect precedent. I doubt that this question is susceptible of principled res-
olution in this case, compare ante, at 22–26 (principal opinion), with ante,
at 3 (SOTOMAYOR, J., concurring); ante, at 15–17 (KAVANAUGH, J., concur-
ring); 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); Dick-
erson v. United States, 530 U.S. 428, 443 (2000); Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833, 855–856 (1992).
Cite as: 590 U. S. ____ (2020) 9
THOMAS, J., concurring in judgment
Sixth Amendment right to a trial by jury in this case.2 The
evidence that I have recounted is enough to establish that
our previous interpretations of the Sixth Amendment are
not demonstrably erroneous. What is necessary, however,
is a clear understanding of the means by which the Sixth
Amendment right applies against the States. We should
rely on the Privileges or Immunities Clause, not the Due
Process Clause or the Fourteenth Amendment in some
vague sense. Accordingly, I concur only in the judgment.
——————
2 Similarly, I express no view on how fundamental the right to unanim-
ity is, what other attributes of a criminal jury are protected by the Priv-
ileges or Immunities Clause, what rights are protected in misdemeanor
cases, or what rights are protected in civil trials.
Cite as: 590 U. S. ____ (2020) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–5924
_________________
EVANGELISTO RAMOS, PETITIONER v. LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
OF LOUISIANA, FOURTH CIRCUIT
[April 20, 2020]
JUSTICE ALITO, with whom THE CHIEF JUSTICE joins, and
with whom JUSTICE KAGAN joins as to all but Part III–D,
dissenting.
The doctrine of stare decisis gets rough treatment in to-
day’s decision. Lowering the bar for overruling our prece-
dents, a badly fractured majority casts aside an important
and long-established decision with little regard for the enor-
mous reliance the decision has engendered. If the major-
ity’s approach is not just a way to dispose of this one case,
the decision marks an important turn.
Nearly a half century ago in Apodaca v. Oregon, 406 U.S.
404 (1972), the Court held that the Sixth Amendment per-
mits non-unanimous verdicts in state criminal trials, and
in all the years since then, no Justice has even hinted that
Apodaca should be reconsidered. Understandably thinking
that Apodaca was good law, the state courts in Louisiana
and Oregon have tried thousands of cases under rules that
permit such verdicts. But today, the Court does away with
Apodaca and, in so doing, imposes a potentially crushing
burden on the courts and criminal justice systems of those
States. The Court, however, brushes aside these conse-
quences and even suggests that the States should have
known better than to count on our decision.
To add insult to injury, the Court tars Louisiana and
Oregon with the charge of racism for permitting non-
unanimous verdicts—even though this Court found such
2 RAMOS v. LOUISIANA
ALITO, J., dissenting
verdicts to be constitutional and even though there are en-
tirely legitimate arguments for allowing them.
I would not overrule Apodaca. Whatever one may think
about the correctness of the decision, it has elicited enor-
mous and entirely reasonable reliance. And before this
Court decided to intervene, the decision appeared to have
little practical importance going forward. Louisiana has
now abolished non-unanimous verdicts, and Oregon
seemed on the verge of doing the same until the Court
intervened.1
In Part II of this opinion, I will address the surprising
argument, advanced by three Justices in the majority, that
Apodaca was never a precedent at all, and in Part III, I will
explain why stare decisis supports retention of that prece-
dent. But before reaching those issues, I must say some-
thing about the rhetoric with which the majority has seen
fit to begin its opinion.
I
Too much public discourse today is sullied by ad hominem
rhetoric, that is, attempts to discredit an argument not by
proving that it is unsound but by attacking the character or
motives of the argument’s proponents. The majority regret-
tably succumbs to this trend. At the start of its opinion, the
majority asks this rhetorical question: “Why do Louisiana
and Oregon allow nonunanimous convictions?” Ante, at 1.
And the answer it suggests? Racism, white supremacy, the
Ku Klux Klan. Ante, at 1–2. Non-unanimous verdicts, the
Court implies, are of a piece with Jim Crow laws, the poll
tax, and other devices once used to disfranchise African-
Americans. Ibid.
If Louisiana and Oregon originally adopted their laws
allowing non-unanimous verdicts for these reasons,2 that is
——————
1 See Brief for State of Oregon as Amicus Curiae 1–2.
2 Both States resist this suggestion. See Brief for Respondent 36–39;
Brief for State of Oregon as Amicus Curiae 6–8.
Cite as: 590 U. S. ____ (2020) 3
ALITO, J., dissenting
deplorable, but what does that have to do with the broad
constitutional question before us? The answer is: nothing.
For one thing, whatever the reasons why Louisiana and
Oregon originally adopted their rules many years ago, both
States readopted their rules under different circumstances
in later years. Louisiana’s constitutional convention of
1974 adopted a new, narrower rule, and its stated purpose
was “judicial efficiency.” State v. Hankton, 2012–0375,
p. 19 (La. App. 4 Cir. 8/2/13), 122 So. 3d 1028, 1038. “In
that debate no mention was made of race.” Ibid.; 7 Records
of the Louisiana Constitutional Convention of 1973: Con-
vention Transcripts 1184–1189 (La. Constitutional Conven-
tion Records Comm’n 1977). The people of Louisiana rati-
fied the new Constitution. The majority makes no effort to
show either that the delegates to the constitutional conven-
tion retained the rule for discriminatory purposes or that
proponents of the new Constitution made racial appeals
when approval was submitted to the people. The same is
true for Oregon’s revisions and reenactments. Ore. Const.,
Art. I, §11 (amended May 18, 1934); Ore. Rev. Stat.
§136.450 (1997); §136.610 (1971).
The more important point, however, is that today’s deci-
sion is not limited to anything particular about Louisiana
or Oregon. The Court holds that the Sixth Amendment re-
quires jury unanimity in all state criminal trials. If at some
future time another State wanted to allow non-unanimous
verdicts, today’s decision would rule that out—even if all
that State’s lawmakers were angels.
For this reason, the origins of the Louisiana and Oregon
rules have no bearing on the broad constitutional question
that the Court decides. That history would be relevant if
there were no legitimate reasons why anyone might think
that allowing non-unanimous verdicts is good policy. But
4 RAMOS v. LOUISIANA
ALITO, J., dissenting
that is undeniably false.3
Some years ago the British Parliament enacted a law
allowing non-unanimous verdicts.4 Was Parliament under
the sway of the Klan? The Constitution of Puerto Rico per-
mits non-unanimous verdicts.5 Were the framers of that
Constitution racists? Non-unanimous verdicts were once
advocated by the American Law Institute and the American
Bar Association.6 Was their aim to promote white suprem-
acy? And how about the prominent scholars who have
taken the same position?7 Racists all? Of course not. So
all the talk about the Klan, etc., is entirely out of place.8 We
——————
3 Among other things, allowing non-unanimous verdicts prevents mis-
trials caused by a single rogue juror, that is, a juror who refuses to pay
attention at trial, expressly defies the law, or spurns deliberation. When
unanimity is demanded, the work of preventing this must be done in
large measure by more intensive voir dire and more aggressive use of
challenges for cause and peremptory challenges. See Amar, Reinventing
Juries: Ten Suggested Reforms, 28 U. C. D. L. Rev. 1169, 1189–1191
(1995).
4 Juries Act 1974, ch. 23, §17 (replacing Criminal Justice Act 1967, ch.
80, §13). See Lloyd-Bostock & Thomas, Decline of the “Little Parlia-
ment”: Juries and Jury Reform in England and Wales, 62 Law & Con-
temp. Prob. 7, 36 (Spring 1999); see also Leib, A Comparison of Criminal
Jury Decision Rules in Democratic Countries, 5 Ohio St. J. Crim. L. 629,
642 (2008).
5 P. R. Const., Art. II, § 11 (establishing “verdict by a majority vote” of
at least 9 of 12 jurors).
6 ALI, Code of Criminal Procedure §355 (1930); id., Comment, at 1027;
ABA Project on Standards for Criminal Justice Compilation, Trial by
Jury 318 (1974).
7 See, e.g., Amar, supra, at 1189–1191; Holland, Improving Criminal
Jury Verdicts: Learning From the Court-Martial, 97 J. Crim. L. & C. 101,
125–141 (2006); Leib, Supermajoritarianism and the American Criminal
Jury, 33 Hastings Const. L. Q. 141, 142 (2006).
8 The majority’s defense of its reliance on the original reasons for the
adoption of the Louisiana and Oregon rules is incoherent. On the one
hand, it asks: “[I]f the Sixth Amendment calls on judges to assess the
functional benefits of jury rules, as the Apodaca plurality suggested, how
can that analysis proceed to ignore the very functions those rules were
Cite as: 590 U. S. ____ (2020) 5
ALITO, J., dissenting
should set an example of rational and civil discourse in-
stead of contributing to the worst current trends.
II
Now to what matters.
A
I begin with the question whether Apodaca was a prece-
dent 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.9 But according
——————
adopted to serve?” Ante, at 14, n. 44. But three sentences later it an-
swers its own question when it observes that “a jurisdiction adopting a
nonunanimous jury rule for benign reasons today would still violate the
Sixth Amendment.” Ibid.
JUSTICE KAVANAUGH’s defense, see ante, at 13–15 (opinion concur-
ring in part), is essentially the same. After reiterating the history re-
counted by the majority, he eventually acknowledges that there are “neu-
tral and legitimate” reasons for allowing non-unanimous verdicts and
that Louisiana may have retained a version of its old rule for such
reasons. He also agrees with the majority that a rule allowing non-
unanimous verdicts would be unconstitutional no matter what the
State’s reasons. So what is the relevance of the original motivations for
the Louisiana and Oregon rules? He offers no explanation. He does
opine that allowing such verdicts works to the disadvantage of African-
American defendants, but the effect of various jury decision rules is a
complex question that has been the subject of much social-science re-
search, none of which the opinion even acknowledges.
9 For Oregon, see, e.g., State v. Bowen, 215 Or. App. 199, 168 P.3d
6 RAMOS v. LOUISIANA
ALITO, J., dissenting
to three Justices in the majority, these courts were
deluded.
This Court, for its part, apparently helped to perpetuate
the illusion, since it reiterated time and again what Apo-
daca had established. See Timbs v. Indiana, 586 U. S. ___,
___, n. 1 (2019) (slip op., at 3, n. 1) (Apodaca held “that the
Sixth Amendment requires jury unanimity in federal, but
not state, criminal proceedings”); McDonald v. Chicago, 561
U.S. 742, 766, n. 14 (2010) (Sixth Amendment “does not re-
quire a unanimous jury verdict in state criminal trials”);
United States v. Gaudin, 515 U.S. 506, 511, n. 2 (1995)
(Apodaca “conclude[d] that jury unanimity is not constitu-
tionally required”); Schad v. Arizona, 501 U.S. 624, 634,
n. 5 (1991) (plurality opinion) (“[A] state criminal defend-
ant, at least in noncapital cases, has no federal right to a
unanimous jury verdict”); Brown v. Louisiana, 447 U.S.
323, 330–331 (1980) (plurality opinion) (“[T]he constitu-
tional guarantee of trial by jury” does not prescribe “the ex-
act proportion of the jury that must concur in the verdict”);
Burch v. Louisiana, 441 U.S. 130, 136 (1979) (Apodaca
“conclude[d] that a jury’s verdict need not be unanimous to
satisfy constitutional requirements”); Ludwig v. Massachu-
setts, 427 U.S. 618, 625 (1976) (“holding” in Apodaca was
that “the jury’s verdict need not be unanimous”); see also
Holland v. Illinois, 493 U.S. 474, 511 (1990) (Stevens, J.,
dissenting) (“we have permitted nonunanimous verdicts,”
citing Apodaca); McKoy v. North Carolina, 494 U.S. 433,
468 (1990) (Scalia, J., dissenting) (the Court has “approved
——————
1208 (2007), rev. denied, 345 Or. 415, 197 P.3d 1104 (2008), cert. de-
nied, 558 U.S. 815 (2009); State v. Mayo, 13 Or. App. 582, 511 P.2d 456
(1973). For Louisiana, see, e.g., State v. Hodges, 349 So. 2d 250, 260 (La.
1977), cert. denied, 434 U.S. 1074 (1978); see also State v. Miller, 2010–
718, pp. 42–43 (La. App. 5 Cir. 12/28/11), 83 So. 3d 178, 204, writ denied,
2012–0282 (La. 5/18/12), 89 So. 3d 119, cert. denied, 568 U.S. 1157
(2013); State v. McElveen, 2010–0172, pp. 95–96 (La. App. 4 Cir. 9/28/11),
73 So. 3d 1033, 1092, writ denied, 2011–2567 (La. 4/19/12), 85 So. 3d 692,
cert. denied, 568 U.S. 1163 (2013).
Cite as: 590 U. S. ____ (2020) 7
ALITO, J., dissenting
verdicts by less than a unanimous jury,” citing Apodaca).
Consistent with these statements of the governing law,
whenever defendants convicted by non-unanimous verdicts
sought review in this Court and asked that Apodaca be
overruled, the Court denied those requests—without a sin-
gle registered dissent.10 Even the legal academy, never shy
about puncturing misconceptions, was taken in.11 Every-
body thought Apodaca was a precedent. But, according to
three of the Justices in the majority, everybody was fooled.
Apodaca, the precedent, was a mirage. Can this be true?
No, it cannot. The idea that Apodaca was a phantom
precedent defies belief. And it certainly disserves im-
portant objectives that stare decisis exists to promote, in-
cluding evenhandedness, predictability, and the protection
of legitimate reliance. See, e.g., Gamble v. United States,
587 U. S. ___, ___ (2019); Kimble v. Marvel Entertainment,
——————
10 See, e.g., Magee v. Louisiana, 585 U. S. ___ (2018); Sims v. Louisi-
ana, 584 U. S. ___ (2018); Baumberger v. Louisiana, 583 U. S. ___ (2017);
Jackson v. Louisiana, 572 U.S. 1088 (2014); McElveen v. Louisiana, 568
U.S. 1163 (2013); Miller v. Louisiana, 568 U.S. 1157 (2013); Bowen v.
Oregon, 558 U.S. 815 (2009); Lee v. Louisiana, 555 U.S. 823 (2008);
McIntyre v. Louisiana, 449 U.S. 871 (1980); Hodges v. Louisiana, 434
U.S. 1074 (1978). On June 7, 1972, shortly after Apodaca was handed
down, the Court denied certiorari in a number of cases asking the Court
to recognize a right to unanimity in state jury trials. Blevins v. Oregon,
406 U.S. 972; Martinka v. Oregon, 406 U.S. 973; Andrews v. Oregon,
406 U.S. 973; Planck v. Oregon, 406 U.S. 973; Riddell v. Oregon, 406
U.S. 973; Mitchell v. Oregon, 406 U.S. 973; Atkison v. Oregon, 406 U.S.
973; Temple v. Oregon, 406 U.S. 973; Davis v. Oregon, 406 U.S. 974;
O’Dell v. Oregon, 406 U.S. 974; Miller v. Oregon, 406 U.S. 974.
Contrary to the majority opinion, I am not arguing that the denial of
certiorari is precedential. See ante, at 19, n. 56. My point, instead, is
that the Court’s pattern of denying review in cases presenting the ques-
tion whether unanimity is required in state trials is evidence that this
Court regarded Apodaca as a precedent.
11 D. Rudstein, C. Erlinder, & D. Thomas, 3 Criminal Constitutional
Law §14.03[3] (2019); W. LaFave, J. Israel, N. King, & O. Kerr, 6 Crimi-
nal Procedure §22.1(e) (2015); W. Rich, 2 Modern Constitutional Law
§30:27 (2011).
8 RAMOS v. LOUISIANA
ALITO, J., dissenting
LLC, 576 U.S. 446, 455–456 (2015); Payne v. Tennessee,
501 U.S. 808, 827 (1991).
B
Under any reasonable understanding of the concept, Apo-
daca was a precedent, that is, “a decided case that furnishes
a basis for determining later cases involving similar facts
or issues.” Black’s Law Dictionary 1366 (10th ed. 2014); see
also J. Salmond, Jurisprudence 191 (10th ed. 1947); M. Ger-
hardt, The Power of Precedent 3 (2008); Landes & Posner,
Legal Precedent: A Theoretical and Empirical Analysis, 19
J. Law & Econ. 249, 250 (1976).
Even though there was no opinion of the Court, the deci-
sion satisfies even the narrowest understanding of a prece-
dent as this Court has understood the concept: The decision
prescribes a particular outcome when all the conditions in
a clearly defined set are met. See Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 67 (1996) (explaining that, at the very
least, we are bound by the “result” in a prior case). In Apo-
daca, this means that when (1) a defendant is convicted in
state court, (2) at least 10 of the 12 jurors vote to convict,
and (3) the defendant argues that the conviction violates
the Constitution because the vote was not unanimous, the
challenge fails. A majority of the Justices in Apodaca ex-
pressly agreed on that result, and that result is a precedent
that had to be followed in subsequent cases until Apodaca
was overruled.
That this result constituted a precedent follows a fortiori
from our cases holding that even our summary affirmances
of lower court decisions are precedents for “the precise is-
sues presented and necessarily decided” by the judgment
below. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per
curiam). If the Apodaca Court had summarily affirmed a
state-court decision holding that a jury vote of 10 to 2 did
not violate the Sixth Amendment, that summary disposi-
tion would be a precedent. Accordingly, it is impossible to
Cite as: 590 U. S. ____ (2020) 9
ALITO, J., dissenting
see how a full-blown decision of this Court reaching the
same result can be regarded as a non-precedent.12
C
What do our three colleagues say in response? They
begin by suggesting that Louisiana conceded that Apodaca
is not a precedent. See ante, at 16–17. This interpretation
of the State’s position is questionable,13 but even if Louisi-
ana made that concession, how could that settle the matter?
What about Oregon, the only State that still permits non-
unanimous verdicts? Oregon certainly did not make such a
concession. On the contrary, it submitted an amicus brief
arguing strenuously that Apodaca is a precedent and that
it should be retained. Brief for State of Oregon as Amicus
Curiae 6–32. And what about any other State that might
want to allow such verdicts in the future? So the majority’s
reliance on Louisiana’s purported concession simply will
not do.
Our three colleagues’ next try is to argue that Apodaca is
not binding because a case has no ratio decidendi when a
majority does not agree on the reason for the result. Ante,
at 19, and n. 54. This argument, made in passing, consti-
tutes an attack on the rule that the Court adopted in Marks
v. United States, 430 U.S. 188 (1977), for determining the
holding of a decision when there is no majority opinion. Un-
der the Marks rule, “[w]hen a fragmented Court decides a
case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be
——————
12 It is true, of course, that a summary affirmance has less precedential
value than a decision on the merits, see, e.g., Comptroller of Treasury of
Md. v. Wynne, 575 U.S. 542, 560–561 (2015), but we have never said the
same about decisions on the merits that were reached without an opinion
of the Court.
13 What the State appears to have meant is that Justice Powell’s rea-
soning was not binding. See Brief for Respondent 47; Tr. of Oral Arg.
37–38.
10 RAMOS v. LOUISIANA
ALITO, J., dissenting
viewed as that position taken by those Members who con-
curred in the judgments on the narrowest grounds.” Id., at
193 (internal quotation marks omitted). This rule ascribes
precedential status to decisions made without majority
agreement on the underlying rationale, and it is therefore
squarely contrary to the argument of the three Justices who
regard Apodaca as non-precedential.
The Marks rule is controversial, and two Terms ago, we
granted review in a case that implicated its meaning. See
Hughes v. United States, 584 U. S. ___ (2018). But we ulti-
mately decided the case on another ground and left the
Marks rule intact. As long as that rule stands, it refutes
the argument that Apodaca is not binding because a major-
ity did not agree on a common rationale.
Finally, our three colleagues contend that treating Apo-
daca as a precedent would require the Court “to embrace a
new and dubious proposition: that a single Justice writing
only for himself has the authority to bind this Court to prop-
ositions it has already rejected.” Ante, at 16. This argu-
ment appears to weave together three separate questions
relating to the precedential effect of decisions in which
there is no majority opinion. I will therefore attempt to un-
tangle these questions and address each in turn.
An initial question is whether, in a case where there is no
opinion of the Court, the position taken by a single Justice
in the majority can constitute the binding rule for which the
decision stands. Under Marks, the clear answer to this
question is yes. The logic of Marks applies equally no mat-
ter what the division of the Justices in the majority, and I
am aware of no case holding that the Marks rule is inappli-
cable when the narrowest ground is supported by only one
Justice. Certainly the lower courts have understood Marks
to apply in that situation.14
——————
14 See Grutter v. Bollinger, 539 U.S. 306, 321 (2003) (discussing lower
court’s treatment of Justice Powell’s opinion in Regents of Univ. of Cal.
Cite as: 590 U. S. ____ (2020) 11
ALITO, J., dissenting
The next question is whether the Marks rule applies any
differently when the precedent that would be established by
a fractured decision would overrule a prior precedent.
Again, the logic of Marks dictates an affirmative answer,
and I am aware of no case holding that the Marks rule ap-
plies any differently in this situation. But as far as the pre-
sent case is concerned, this question is academic because
Apodaca did not overrule any prior decision of this Court.
At most, what the Court had “recognized,” ante, at 6, in
prior cases is that the Sixth Amendment guaranteed the
right to a unanimous jury verdict in trials in federal and
territorial courts.15 Whether the same rule applied in state
prosecutions had not been decided, and indeed, until Dun-
can v. Louisiana, 391 U.S. 145, 154–158 (1968), was
handed down just four years before Apodaca, the Sixth
Amendment had not been held to apply to the States.
The final question is whether Justice Powell’s reasoning
in Apodaca—namely, his view that the Fourteenth Amend-
ment did not incorporate every aspect of the Sixth Amend-
ment jury-trial right—is a binding precedent, and the an-
swer to that question is no. When, in the years after
Apodaca, new questions arose about the scope of the jury-
trial right in state court—as they did in cases like Apprendi
v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Wash-
ington, 542 U.S. 296 (2004)—nobody thought for a second
that Apodaca committed the Court to Justice Powell’s view
——————
v. Bakke, 438 U.S. 265 (1978)); Planned Parenthood of Southeastern Pa.
v. Casey, 947 F.2d 682, 694–698 (CA3 1991) (noting that “[t]he binding
opinion from a splintered decision is as authoritative for lower courts as
a nine-Justice opinion,” and concluding based on opinions of Justice
O’Connor that the test for the constitutionality of abortion regulations is
undue burden), aff ’d in part and rev’d in part, 505 U.S. 833 (1992); Blum
v. Witco Chemical Corp., 888 F.2d 975, 981 (CA3 1989); see also United
States v. Duvall, 705 F.3d 479, 483, n. 1 (CADC 2013) (Kavanaugh, J.,
for the court).
15 See, e.g., Andres v. United States, 333 U.S. 740, 748 (1948); Thomp-
son v. Utah, 170 U.S. 343, 351 (1898).
12 RAMOS v. LOUISIANA
ALITO, J., dissenting
that the right has different dimensions in state and federal
cases. And no one on this Court or on a lower court had any
trouble locating the narrow common ground between Jus-
tice Powell and the plurality in Apodaca: The States need
not require unanimity to comply with the Constitution.
For all these reasons, Apodaca clearly was a precedent,
and if the Court wishes to be done with it, it must explain
why overruling Apodaca is consistent with the doctrine of
stare decisis.
III
A
Stare decisis has been a fundamental part of our juris-
prudence since the founding, and it is an important doc-
trine. But, as we have said many times, it is not an “inexo-
rable command.” Payne, 501 U.S., at 828; Gamble, 587
U. S., at ___–___ (slip op., at 11–12). There are circum-
stances when past decisions must be overturned, but we
begin with the presumption that we will follow precedent,
and therefore when the Court decides to overrule, it has an
obligation to provide an explanation for its decision.
This is imperative because the Court should have a body
of neutral principles on the question of overruling prece-
dent. The doctrine should not be transformed into a tool
that favors particular outcomes.16
B
What is the majority’s justification for overruling Apo-
daca? With no apparent appreciation of the irony, today’s
majority, which is divided into four separate camps,17 criti-
cizes the Apodaca majority as “badly fractured.” Ante, at 8.
——————
16 It is also important that the Court as a whole adhere to its “prece-
dent[s] about precedent.” Alleyne v. United States, 570 U.S. 99, 134
(2013) (ALITO, J., dissenting). If individual Justices apply different
standards for overruling past decisions, the overall effects of the doctrine
will not be neutral.
17 Three Justices join the principal opinion in its entirety. Two Justices
Cite as: 590 U. S. ____ (2020) 13
ALITO, J., dissenting
But many important decisions currently regarded as prece-
dents were decided without an opinion of the Court.18 Does
the majority mean to suggest that all such precedents are
fair game?
The majority’s primary reason for overruling Apodaca is
the supposedly poor “quality” of Justice White’s plurality
opinion and Justice Powell’s separate opinion. Ante, at 19–
21. The majority indicts Justice White’s opinion on five
grounds: (1) it “spent almost no time grappling with the his-
torical meaning of the Sixth Amendment’s jury trial
right,”19 (2) it did not give due weight to the “Court’s long-
repeated statements that [the right] demands unanimity,”20
(3) it did not take into account “the racist origins of [the]
Louisian[a] and Orego[n] laws,”21 (4) it looked to the func-
tion of the jury-trial right,22 and (5) it engaged in “a breezy
cost-benefit analysis” that, in any event, did not properly
——————
do not join Part IV–A, but each of these Justices takes a position not
embraced by portions of the principal opinion that they join. See ante, at
2 (SOTOMAYOR, J., concurring in part) (disavowing principal opinion’s
criticism of Justice White’s Apodaca opinion as “functionalist”); ante, at
15–17 (KAVANAUGH, J., concurring in part) (opining that the decision in
this case does not apply on collateral review). And JUSTICE THOMAS
would decide the case on entirely different grounds and thus concurs only
in the judgment. See ante, at 1.
18 See, e.g., National Federation of Independent Business v. Sebelius,
567 U.S. 519 (2012); Williams v. Illinois, 567 U.S. 50 (2012); J. McIntyre
Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011); McDonald v. Chicago,
561 U.S. 742 (2010); Shady Grove Orthopedic Associates, P. A. v. Allstate
Ins. Co., 559 U.S. 393 (2010); Baze v. Rees, 553 U.S. 35 (2008); Crawford
v. Marion County Election Bd., 553 U.S. 181 (2008); Hamdan v.
Rumsfeld, 548 U.S. 557 (2006); Medtronic, Inc. v. Lohr, 518 U.S. 470
(1996); Richmond v. J. A. Croson Co., 488 U.S. 469 (1989); Bakke, 438
U.S. 265; Gregg v. Georgia, 428 U.S. 153 (1976) (joint opinion of Stew-
art, Powell, and Stevens, JJ.).
19 Ante, at 20.
20 Ante, at 21.
21 Ibid.
22 Ibid.
14 RAMOS v. LOUISIANA
ALITO, J., dissenting
weigh the costs and benefits.23 All these charges are
overblown.
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 Wil-
liams, 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 re-
peat 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 cursorily
stating that unanimity was required.24 And as noted, Wil-
liams 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 Loui-
siana and Oregon laws should not be counted as a defect for
the reasons already discussed. See supra, at 4–5.
Fourth, it is hard to know what to make of the function-
alist charge. One Member of the majority explicitly disa-
vows this criticism, see ante, at 2 (SOTOMAYOR, J., concur-
ring 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 cate-
gory. See Mapp v. Ohio, 367 U.S. 643, 654 (1961) (Fourth
Amendment); Miranda v. Arizona, 384 U.S. 436, 444
——————
23 Ante, at 13.
24 See, e.g., Andres, 333 U.S., at 748; Thompson, 170 U.S., at 351.
Cite as: 590 U. S. ____ (2020) 15
ALITO, J., dissenting
(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?
The functionalist criticism dodges the knotty problem
that led Justice White to look to the underlying purpose of
the jury-trial right. Here is the problem. No one questions
that the Sixth Amendment incorporated the core of the
common-law jury-trial right, but did it incorporate every
feature of the right? Did it constitutionalize the require-
ment that there be 12 jurors even though nobody can say
why 12 is the magic number? And did it incorporate fea-
tures that we now find highly objectionable, such as the
exclusion of women from jury service? At the time of the
adoption of the Sixth Amendment (and for many years
thereafter), women were not regarded as fit to serve as a
defendant’s peers. Unless one is willing to freeze in place
late 18th-century practice, it is necessary to find a principle
to distinguish between the features that were incorporated
and those that were not. To do this, Justice White’s opinion
for the Court in Williams looked to the underlying purpose
of the jury-trial right, which it identified as interposing a
jury of the defendant’s peers to protect against oppression
by a “ ‘corrupt or overzealous prosecutor’ ” or a “ ‘compliant,
biased, or eccentric judge.’ ” 399 U.S., at 100 (quoting Dun-
can, 391 U.S., at 156).
The majority decries this “functionalist” approach but
provides no alternative. It does not claim that the Sixth
Amendment incorporated every feature of common-law
practice, but it fails to identify any principle for identifying
——————
25 Five Justices in Furman found that the Eighth Amendment imposes
an evolving standard of decency, 408 U.S., at 255–257 (Douglas, J., con-
curring); id., at 265–269 (Brennan, J., concurring); id., at 309–310 (Stew-
art, J., concurring); id., at 312–314 (White, J., concurring); id., at 316,
322–333 (Marshall, J., concurring), and our subsequent cases have done
the same.
16 RAMOS v. LOUISIANA
ALITO, J., dissenting
the features that were absorbed. On the question of jury
service by women, the majority’s only answer, buried in a
footnote, is that the exclusion of women was outlawed by
“further constitutional amendments,” ante, at 15, n. 47, pre-
sumably the Fourteenth Amendment. Does that mean
that the majority disagrees with the holding in Taylor v.
Louisiana, 419 U.S. 522 (1975)—another opinion by
Justice White—that the exclusion of women from jury ser-
vice violates the Sixth Amendment? Id., at 531, 533–536.26
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.
——————
26 The majority also notes that the Judiciary Act of 1789 pegged the
qualifications for service on federal juries to those used in the State in
which a case was tried, ante, at 15, n. 47, but since all States barred
women, see Taylor, 419 U.S., at 536, it is hard to see how the 1789 Act
can provide a ground for distinguishing the common law’s requirement
of unanimity from its insistence that women were not fit to serve.
Jury practice at the time of the founding differed from current prac-
tice in other important respects. Jurors were not selected at random.
“[P]ublic officials called selectmen, supervisors, trustees, or ‘sheriffs of
the parish’ exercised what Tocqueville called ‘very extensive and very
arbitrary’ powers in summoning jurors.” Alschuler & Deiss, A Brief His-
tory of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867,
879–880 (1994). And “American trial judges . . . routinely summarized
the evidence for jurors and often told jurors which witnesses they found
most credible, and why.” Sklansky, Evidentiary Instructions and the
Jury as Other, 65 Stan. L. Rev. 407, 454 (2013). Any attempt to identify
the aspects of late 18th-century practice that were incorporated into the
Sixth Amendment should take the full picture into account and provide
a principle for the distinction.
Cite as: 590 U. S. ____ (2020) 17
ALITO, J., dissenting
What about Justice Powell’s concurrence? The majority
treats Justice Powell’s view as idiosyncratic, but it does not
merit that derision. Justice Powell’s belief that the Consti-
tution allows the States a degree of flexibility in the inter-
pretation of certain constitutional rights, although not our
dominant approach in recent years, McDonald, 561 U.S.,
at 759–766, has old and respectable roots. For a long time,
that was the Court’s approach. See id., at 759–761. Only
gradually did the Court abandon this “two-tier” system, see
id., at 762–767, and it was not until Duncan, supra, at 154–
158, decided just four years before Apodaca, that the Sixth
Amendment jury-trial right was held to apply to the States
at all. Justice Powell’s approach is also not without recent
proponents, including, at least with respect to the Second
Amendment, Justices now in the majority.27
Even now, our cases do not hold that every provision of
the Bill of Rights applies in the same way to the Federal
Government and the States. A notable exception is the
Grand Jury Clause of the Fifth Amendment, a provision
that, like the Sixth Amendment jury-trial right, reflects the
importance that the founding generation attached to juries
——————
27 As recently as 2010, prominent advocates urged us to hold that a
provision of the Bill of Rights applies differently to the Federal Govern-
ment and the States. In McDonald, 561 U.S. 742, the city of Chicago
and some of its amici argued that, despite our decision in District of
Columbia v. Heller, 554 U.S. 570 (2008), States and cities should be
given leeway to regulate the possession of a firearm in the home for self-
defense in accordance with the particular needs and desires of their citi-
zens. 561 U.S., at 753. Although this argument did not prevail, four
Justices, some now in the majority, appeared to take that view. See id.,
at 927 (BREYER, J., joined by GINSBURG and SOTOMAYOR, JJ., dissenting)
(observing that “gun violence . . . varies as between rural communities
and cities” and arguing that States and cities should be free to adopt
rules that meet local needs and preferences); id., at 866 (Stevens, J., dis-
senting) (“The rights protected against state infringement by the Four-
teenth Amendment’s Due Process Clause need not be identical in shape
or scope to the rights protected against Federal Government infringe-
ment by the various provisions of the Bill of Rights”).
18 RAMOS v. LOUISIANA
ALITO, J., dissenting
as safeguards against oppression. 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 rea-
soning 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.
The majority’s only other reason for overruling Apodaca
is that it is inconsistent with related decisions and recent
legal developments. Ante, at 21; ante, at 2 (SOTOMAYOR, J.,
concurring in part). I agree that Justice Powell’s view on
incorporation is not in harmony with the bulk of our case
law, but the majority’s point about “recent legal develop-
ments” is an exaggeration. No subsequent Sixth Amend-
ment decision has undercut the plurality. And while
Justice Powell’s view on incorporation has been further
——————
28 See Ariz. Const., Art. 2, §30; Ark. Const., Amdt. 21, §1; Cal. Const.,
Art. I, §14; Colo. Rev. Stat. §16–5–205 (2019); Conn. Gen. Stat. §54–46
(2017); Haw. Const., Art. I, §10; Idaho Const., Art. I, §8; Ill. Comp. Stat.,
ch. 725, §5/111–2(a) (West 2018); Ind. Code §35–34–1–1(a) (2019); Iowa
Ct. Rule 2.5 (2020); Kan. Stat. Ann. §22–3201 (2007); Md. Crim. Proc.
Code Ann. §§4–102, 4–103 (2018); Mich. Comp. Laws §767.1 (1979); Mo.
Const., Art. I, §17; Mont. Const., Art. II, §20(1); Neb. Rev. Stat. §29–1601
(2016); Nev. Const., Art. I, §8; N. M. Const., Art II, §14; N. D. Rule Crim.
Proc. 7(a) (2018–2019); Okla. Const., Art II, §17; Ore. Const. (amended),
Art. VII, §§5(3)–(5); Pa. Const., Art. I, §10 (providing that “[e]ach of the
several courts of common pleas may, with the approval of the Supreme
Court, provide for the initiation of criminal proceedings therein by
information”—a condition that has now been met in all counties); see also
42 Pa. Cons. Stat. §8931 (2015); S. D. Const., Art. VI, §10; Utah Const.,
Art. I, §13; Vt. Rule Crim. Proc. 7(a) (2018); Wash. Rev. Code §10.37.015
(2019); Wis. Stat. §967.05 (2015–2016); Wyo. Stat. Ann. §7–1–106(a) (2019).
Cite as: 590 U. S. ____ (2020) 19
ALITO, J., dissenting
isolated by later cases holding that two additional provi-
sions of the Bill of Rights apply with full force to the States,
see Timbs, 586 U. S., at ___ (slip op., at 2) (Eighth Amend-
ment’s Excessive Fines Clause); McDonald, supra, at 791
(plurality opinion) (Second Amendment), the project of com-
plete incorporation was nearly done when Apodaca was
handed down. See McDonald, supra, at 765, n. 13.
While the majority worries that Apodaca is inconsistent
with our cases on incorporation, the majority ignores some-
thing far more important: the way in which Apodaca is in-
tertwined with the body of our Sixth Amendment case law.
As I have explained, see supra, at 15, the Apodaca plural-
ity’s reasoning was based on the same fundamental mode
of analysis as that in Williams, 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.
C
Up to this point, I have discussed the majority’s reasons
for overruling Apodaca, but that is only half the picture.
What convinces me that Apodaca should be retained are the
enormous reliance interests of Louisiana and Oregon. For
48 years, Louisiana and Oregon, trusting that Apodaca is
good law, have conducted thousands and thousands of trials
under rules allowing non-unanimous verdicts. Now, those
States face a potential tsunami of litigation on the jury-
unanimity issue.
At a minimum, all defendants whose cases are still on
direct appeal will presumably be entitled to a new trial if
——————
29 See Ariz. Rev. Stat. Ann. §21–102 (2013); Conn. Gen. Stat. §54–82;
Fla. Rule Crim. Proc. §3.270 (2019); Ind. Code §35–37–1–1(b)(2); Utah
Code §78B–1–104 (2019).
20 RAMOS v. LOUISIANA
ALITO, J., dissenting
they were convicted by a less-than-unanimous verdict and
preserved the issue in the trial court. And at least in Ore-
gon, even if no objection was voiced at trial, defendants may
be able to challenge their convictions based on plain error.
See Ore. Rule App. Proc. 5.45(1), and n. 1 (2019); State v.
Serrano, 355 Or. 172, 179, 324 P.3d 1274, 1280 (2014).
Oregon asserts that more than a thousand defendants
whose cases are still on direct appeal may be able to chal-
lenge their convictions if Apodaca is overruled. Brief for
State of Oregon as Amicus Curiae 12–13.30 The State also
reports that “[d]efendants are arguing that an instruction
allowing for non-unanimous verdicts is a structural error
that requires reversal for all convictions, even for those for
which the jury was not polled or those for which the jury
was unanimous.” Id., at 14.
Unimpressed by these potential consequences, the major-
ity notes that we “vacated and remanded nearly 800 deci-
sions” for resentencing after United States v. Booker, 543
U.S. 220 (2005), held that the Federal Sentencing Guide-
lines are not mandatory. Ante, at 23. But the burden of
resentencing cannot be compared with the burden of retry-
ing cases. And while resentencing was possible in all the
cases affected by Booker, there is no guarantee that all the
cases affected by today’s ruling can be retried. In some
cases, key witnesses may not be available, and it remains
to be seen whether the criminal justice systems of Oregon
and Louisiana have the resources to handle the volume of
cases in which convictions will be reversed.
These cases on direct review are only the beginning.
Prisoners whose direct appeals have ended will argue that
today’s decision allows them to challenge their convictions
on collateral review, and if those claims succeed, the courts
——————
30 The majority arrives at a different figure based on the number of
felony jury trials in Oregon in 2018, see ante, at 22–23, and n. 68, but it
does not take 2019 into account. And since we do not know how many
cases remain on direct appeal, such calculations are unreliable.
Cite as: 590 U. S. ____ (2020) 21
ALITO, J., dissenting
of Louisiana and Oregon are almost sure to be over-
whelmed.
The majority’s response to this possibility is evasive. It
begins by hinting that today’s decision will not apply on col-
lateral review under the framework adopted in Teague v.
Lane, 489 U.S. 288, 315 (1989) (plurality opinion). Under
Teague, “an old rule applies both on direct and collateral
review,” but if today’s decision constitutes a new procedural
rule, prisoners will be able to rely on it in a collateral pro-
ceeding only if it is what we have termed a “watershed rule”
that implicates “the fundamental fairness and accuracy of
the criminal proceeding.” Whorton v. Bockting, 549 U.S.
406, 416 (2007). Noting that we have never found a new
rule of criminal procedure to qualify as “watershed,” the
Court hints that the decision in this case is likely to meet
the 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 retro-
active application on collateral review remains a real possi-
bility, 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. Take the prop-
osition, adopted by three Members of the majority, that
Apodaca was never a precedent. Those Justices, along with
the rest of the majority, take the position that our cases es-
tablished well before Apodaca both that the Sixth Amend-
ment requires unanimity, ante, at 6–7, and that it applies
22 RAMOS v. LOUISIANA
ALITO, J., dissenting
in the same way in state and federal court, ante, at 9. Thus,
if Apodaca was never a precedent and did not disturb what
had previously been established, it may be argued that to-
day’s decision does not impose a new rule but instead
merely recognizes what the correct rule has been for many
years.
Two other Justices in the majority acknowledge that Apo-
daca 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 ineffec-
tive assistance of counsel for failing to challenge Apodaca.
See ante, at 15–17 (opinion concurring in part).
The remaining Justices in the majority, and those of us
in dissent, express no view on this question, but the major-
ity’s depiction of the unanimity requirement as a hallowed
right that Louisiana and Oregon flouted for ignominious
reasons certainly provides fuel for the argument that the
rule announced today meets the test. And in Oregon, the
State most severely impacted by today’s decision, water-
shed status may not matter since the State Supreme Court
has reserved decision on whether state law gives prisoners
a greater opportunity to invoke new precedents in state col-
lateral proceedings. See Verduzco v. State, 357 Or. 553,
574, 355 P.3d 902, 914 (2015).31
Whatever the ultimate resolution of the retroactivity
question, the reliance here is not only massive; it is con-
crete. Cf. Dickerson v. United States, 530 U.S. 428, 443
——————
31 Under our case law, a State must give retroactive effect to any con-
stitutional decision that is retroactive under the standard in Teague v.
Lane, 489 U.S. 288 (1989), but it may adopt a broader retroactivity rule.
Montgomery v. Louisiana, 577 U. S. ___, ___ (2016); Danforth v. Minne-
sota, 552 U.S. 264, 275 (2008).
Cite as: 590 U. S. ____ (2020) 23
ALITO, J., dissenting
(2000) (reliance weighed heavily in favor of precedent
simply because the warnings in Miranda v. Arizona, 384
U.S. 436, had become “part of our national culture”). In my
view, it weighs decisively against overruling Apodaca.
In reaching this conclusion, I do not disregard the interests
of petitioner and others who were convicted by a less-than-
unanimous vote. It is not accurate to imply that these de-
fendants would have been spared conviction if unanimity
had been required. In many cases, if a unanimous vote had
been needed, the jury would have continued to deliberate
and the one or two holdouts might well have ultimately
voted to convict.32 This is almost certainly the situation in
Oregon, where it is estimated that as many as two-thirds of
all criminal trials have ended with a non-unanimous ver-
dict. See Brief for State of Oregon as Amicus Curiae 12. It
is impossible to believe that all these cases would have
resulted in mistrials if unanimity had been demanded. In-
stead, after a vote of 11 to 1 or 10 to 2, it is likely that de-
liberations would have continued and unanimity would
have been achieved.
Nevertheless, the plight of defendants convicted by non-
unanimous votes is important and cannot be overlooked,
but that alone cannot be dispositive of the stare decisis
question. Otherwise, stare decisis would never apply in a
case in which a criminal defendant challenges a precedent
that led to conviction.
D
The reliance in this case far outstrips that asserted in re-
cent cases in which past precedents were overruled. Last
Term, when we overturned two past decisions, there were
——————
32 Studies show that when a supermajority votes for a verdict near
the beginning of deliberations, a unanimous verdict is usually reached.
See generally Devine, Clayton, Dunford, Seying, & Price, Jury Decision
Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psy-
chology Pub. Pol’y & L. 622, 690–707 (2001).
24 RAMOS v. LOUISIANA
ALITO, J., dissenting
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 air-
iest sort of reliance, the public’s expectation that past
decisions 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). The same was true
the year before in South Dakota v. Wayfair, Inc., 585 U. S.
___ (2018), where the dissent did not contend that any
legitimate reliance interests weighed in favor of preserving
the decision that the Court overruled. Id., at ___–___
(opinion of ROBERTS, C. J.) (slip op., at 1–2). And our unan-
imous decision in Pearson v. Callahan, 555 U.S. 223, 233
(2009), found that no reliance interests were involved.
In other cases overruling prior decisions, the dissents
claimed that reliance interests were at stake, but whatever
one may think about the weight of those interests, no one
can argue that they are comparable to those in this case.
In Montejo v. Louisiana, 556 U.S. 778, 793–797 (2009),
the Court abrogated a prophylactic rule that had been
adopted in Michigan v. Jackson, 475 U.S. 625 (1986),
to protect a defendant’s right to counsel during post-
arraignment interrogation. The dissent did not claim that
any defendants had relied on this rule, arguing instead that
the public at large had an interest “in knowing that counsel,
once secured, may be reasonably relied upon as a medium
between the accused and the power of the State.” Montejo,
supra, at 809 (opinion of Stevens, J.). This abstract inter-
est, if it can be called reliance in any proper sense of the
term, is a far cry from what is at stake here.
In Citizens United v. Federal Election Comm’n, 558 U. S.
Cite as: 590 U. S. ____ (2020) 25
ALITO, J., dissenting
310 (2010), where we overruled precedent allowing laws
that prohibited corporations’ election-related speech, we
found that “[n]o serious reliance interests” were implicated,
id., at 365, since the only reliance asserted by the dissent
was the time and effort put in by federal and state lawmak-
ers in adopting the provisions at issue, id., at 411–412
(Stevens, J., concurring in part and dissenting in part). In
this case, by contrast, what is at stake is not the time and
effort of Louisiana and Oregon lawmakers but a monumen-
tal litigation burden and the potential inability to retry
cases that might well have ended with a unanimous verdict
if that had been required.
Finally, in Janus v. State, County, and Municipal Em-
ployees, 585 U. S. ___ (2018), where we overruled Abood v.
Detroit Bd. of Ed., 431 U.S. 209 (1977), we carefully consid-
ered and addressed the question of reliance, and whatever
one may think about the extent of the legitimate reliance in
that case, it is not in the same league as that present here.
Abood had held that a public sector employer may require
non-union members to pay a portion of the dues collected
from union members. 431 U.S., at 235–236. In overruling
that decision, we acknowledged that existing labor con-
tracts might have been negotiated in reliance on Abood, but
we noted that most labor contracts are of short duration,
that unions had been on notice for some time that the Court
had serious misgivings about Abood, and that unions could
have insisted on contractual provisions to protect their in-
terests if Abood later fell. Janus, supra, at ___–___ (slip op.,
at 44–47).33
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33 The reliance in this case also far exceeds that in Arizona v. Gant, 556
U.S. 332 (2009), where the Court effectively overruled a decision, New
York v. Belton, 453 U.S. 454 (1981), that allowed a police officer to search
the entire passenger compartment of a car if the officer had probable
cause to arrest the driver or a passenger. 556 U.S., at 335. Police de-
partments had trained officers in reliance on the Belton rule, see Gant,
supra, at 358–360 (ALITO, J., dissenting), but the burden of retraining
26 RAMOS v. LOUISIANA
ALITO, J., dissenting
By striking down a precedent upon which there has been
massive and entirely reasonable reliance, the majority sets
an important precedent about stare decisis. I assume that
those in the majority will apply the same standard in future
cases.
* * *
Under the approach to stare decisis that we have taken
in recent years, Apodaca should not be overruled. I would
therefore affirm the judgment below, and I respectfully
dissent.
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cannot compare with conducting a large number of retrials and poten-
tially releasing defendants who cannot be retried due to post-trial events.