In my post of 16 April I suggested that ascertaining the ratio of a multi-judge case can be entertaining. Who could have guessed how great the entertainment is when a bench of nine divides over the ratio of a case decided by the same Court?
This was the amusing part of Ramos v Louisiana USSC No 18-5924, April 20, 2020. The case holds - you could call this its ratio - that the Sixth Amendment right to jury trial requires that in the States (as with the federal courts and the courts of the territories) juries must be unanimous in their verdicts.
Of more general interest is the Court’s treatment of its 1972 decision Apodaca v Oregon, 406 U.S. 404. This decided that majority verdicts in State courts are permitted by the Sixth Amendment. On this the Court split 5-4, the 4-4 stalemate being broken by the fifth judge, Powell J. His reasoning was idiosyncratic, to say the least. He said that the Sixth Amendment means one thing for the federal courts and the courts of the territories, and another for the state courts.
Suppose, as occurred here, the reasoning of the other judges was on two competing lines, each cancelling the other out. When this sort of division occurs, does the idiosyncratic reasoning bind subsequent Courts? It would if it were ratio. If the idiosyncratic reasoning, being ratio, has no basis in precedent, can subsequent courts simply say it was wrong even if it has been applied for nearly 50 years? Or does the idiosyncratic opinion of one judge bind subsequent benches of nine judges?
Although following precedent, stare decisis, is extremely important for the stability of law (see the opinion of Kavanaugh J, emphasising that in respect of constitutional precedents, a decision to overrule should consider whether they are egregiously wrong, whether they have they caused social harm, and whether overturning would cause undue social disruption), human ingenuity is such that a later court can always find a way to decline to follow a previous decision. The Court did this in Ramos. The dissenters were Alito J, joined by Roberts CJ and Kagan J. They applied Apodaca and would have held that majority verdicts are permissible in state courts. Three of the majority judges, Gorsuch J, joined by Ginsburg and Breyer JJ would have preferred to have given Apodaca no precedent value. But, joined by Sotomayor J, and by Kavanaugh J, they held that Apodaca was a precedent but that it was wrongly decided. Thomas J concurred in the result, that unanimous verdicts are required in state courts, but for different reasons: he drew upon the Privileges and Immunities Clause of the Fourteenth Amendment rather than its Due Process Clause, and on that basis he distinguished Apodaca. The dissenters, while not necessarily thinking Apodaca was correctly decided, regarded it as a precedent that should be followed, Alito J joined by Roberts CJ said that it should be followed because of the reliance that had been placed on it, while all three dissenters agreed that its ratio is that when a defendant is convicted in a state court and at least 10 of the 12 jurors vote to convict, and the defendant argues that the conviction violates the Constitution because the vote was not unanimous, the challenge fails. This narrow view of the ratio enabled these judges to disregard Powell J’s idiosyncratic reasoning while applying his conclusion.
The majority decision brought Louisiana (and Oregon) into line with the other States. In any event, Louisiana has enacted a requirement for unanimous verdicts in trials for crimes committed on or after 1 January 2019 (see Kavanaugh J), so the decision can’t have been a great surprise for anyone.
The unanimity requirement cuts both ways, although this is seldom pointed out. A defendant can’t have an acquittal unless all jurors agree on that verdict. When a jury can’t reach a verdict a retrial is usually ordered. So yes, unanimity is a safeguard against a wrongful conviction, but it is also an obstacle to an acquittal.
For those who are interested in whether the Supreme Court is going to overturn Roe v Wade, Ramos v Louisiana provides some insight into judicial attitudes to precedent.
Ramos is also worth looking at for its various references to the history of jury trials.
And here is an insight into the judicial process, by Edward Lazarus in his examination of the judicial culture of the United States Supreme Court, Closed Chambers – The Rise, Fall, and Future of the Modern Supreme Court (1998), pp248-249:
“The most we can expect and what we must demand from the Court as it expounds the law is an integrity born of consistency and sincerity. Legitimate constitutional arguments are not limitless; they may take several forms familiar to law. They may be based on history, on precedent, on the text, on inferences from the way our government is structured, on appeals to ethics, or on prudential considerations about the consequences of a decision. Often, these modes of argument are used in combination, melded into a convincing whole. And none is perfect for every circumstance. Deciding which modes of argument best suit the facts and circumstances of a given case is both an inevitable moral choice and the essence of judging.”
