The Supreme Court’s opinion in Ramos v. Louisiana is a virtual treasure trove for Court watchers. It involves interesting divisions among the Justices on interesting issues as well as fun clues for what individual Justices and the Court might do in future cases (including potential cases that the Court might year). 

SO, with that intro, here are my top ten tea leaves, fwiw, from the Court’s opinion in Ramos (I’m sheltering in place, and so this is what I had to work with):

1. Justice Kagan made a strong pitch for herself as the Court’s biggest institutionalist.  She joined Justice Alito and the Chief Justice in dissent, and would have held that states can continue to use non-unanimous juries. The reason that was perhaps an institutionalist move is because Justice Alito’s dissent relies pretty heavily on stare decisis – the Court’s prior decision in Apodaca had upheld states’ use of non-unanimous juries (even though Apodaca was a fractured opinion that did not generate a majority). And Justice Kagan, at oral argument and in many opinions, has been a strong defender of stare decisis. (A small caveat that her vote didn’t ultimately matter to the outcome in this case since there were six votes for holding Louisiana’s non-unanimous jury unconstitutional. And this was a very important criminal procedure case....)

2. Justice Alito (and The Chief Justice) troll us all a little on stare decisis. The author of Janus v. AFSCME writes: “The doctrine of stare decisis gets rough treatment in today’s decision. Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case the decision marks an important turn.” LOL. OK, Sam. Remember Franchise Tax Board v. Hyatt? In any case, Justice Alito continues to be a strong believer in stare decisis when it operates against criminal defendants. (I’m having flashbacks to the double jeopardy case from last term – Gamble v. United States.) 

3. Justice Thomas continue to think that stare decisis is for suckers. He writes that ““the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law.” And he would continue to cast aside all of the Court’s incorporation and privileges and immunities case law by holding the Sixth Amendment unanimous jury trial right is incorporated under the privileges and immunities clause.  Fun times!

4. Justice Gorsuch probably thinks that stare decisis is for suckers. In addition to churning through the usual stare decisis factors (is the decision unworkable; is it a doctrinal aberration; have the facts changed; is there reliance on it; etc.), Justice Gorsuch says some additional points for why the Court’s prior decision in Apodaca is entitled to less respect.

First, he says the decision did not command a majority. This portion of his opinion also did not command a majority – he wrote only for himself and Justices Ginsburg and Breyer. In this section of his opinion, Gorsuch focuses on how the decision was effectively a 4-1-4 split with Justice Powell writing for himself. As we’ve talked about on Strict Scrutiny, this (4-1-4 split, with Justice Powell writing for himself) was also the line up for the Court’s major decision on race conscious remedies and affirmative action – Bakke v. University of California, Davis. So Justice Gorsuch’s reasoning previews some of what I assume will be his reasoning when he votes to overturn Bakke and subsequent cases relying on it (like Grutter and Fisher). I find it a little curious that Justice Ginsburg and Justice Breyer joined this portion of the opinion; it is limited in this way: “And to accept that reasoning as precedential, we would have to embrace a new and dubious proposition: that a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected.” But that’s not much…

Second,Justice Gorsuch’s opinion (this time for the majority) underscores that racist decisions and racist laws are entitled to less respect under stare decisis (i.e., if a decision upheld a racist law, the decision is entitled to less respect). Justice Gorsuch has previously explained this idea in a separate writing in Gamble. And applied faithfully, the idea has something to it. The problem, however, is that it’s far from clear that the Justices will apply this rule faithfully.  Remember that in Box v. Planned Parenthood, Justice Thomas wrote about how all of the Court’s abortion *and contraception* cases are suspect because the pro-choice and pro-contraception movements were based in eugenics.  (The historian whose work he relied on—Adam Cohen-- has debunked this claim.)

5.  Justice Kavanaugh shares with us some thoughts about stare decisis – which suggests he also thinks that stare decisis is for suckers (but less so than Justice Gorsuch does). Justice Kavanaugh wrote a concurrence explaining his views on stare decisis. Not a lot there, but a lot of signals that “well stare decisis is weaker in constitutional cases” and “the Court overrules precedent all the time” so get over it. (He also, in a footnote, endorses the dissenting Justices view of Planned Parenthood v. Casey -- that Casey is actually not an application of/faithful to stare decisis at all, since the Court modified the legal test governing abortion restrictions. I expect to see that again if (when) he votes to overturn Casey or another abortion-related precedent.)

 6. For Justices Sotomayor, Ginsburg, and Breyer, the rights of criminal defendants are more important than stare decisis. I was not particularly surprised to see this pan out this way for Justice Sotomayor and Justice Ginsburg. I was not sure what Justice Breyer would do in the case (he’s notoriously not great on criminal justice relative to his other progressive colleagues). But if this portends a more criminal-defendant-friendly Justice Breyer, I am extremely here for it.

 7. The Justices join issue on how and whether to talk about race and racist histories. (I’m going to have a separate piece on this but wanted to flag it now.) The majority and separate writings by Justice Sotomayor and Justice Kavanaugh emphasize the racist origins of Louisiana’s non-unanimous jury rule.  The dissent was not happy about this. Specifically, Justice Alito wrote (and the Chief Justice and … Justice Kagan ?!?!? joined): “[A]ll the talk about the Klan, etc., is entirely out of place” and “contribut[es] to the worst current trends” rather than “set[ting] an example of rational and civil discourse.” Look, if you really want to see an opinion that truly discusses “out of place” history and references, I can think of one….

8. The Justices’ conclusions about recognizing discrimination could have important consequences for Espinoza v. Montana Department of Revenue. That case involves a challenge to a state supreme court ruling that had relied on a provision of the Montana constitution forbidding public funding for “sectarian” schools. Sometimes, these provisions are referred to as the “Blaine amendments.” And the case involves the claim that Blaine amendments were passed based on anti-Catholic animus. (They are called Blaine amendments because they were modeled after the failed federal Blaine Amendment that was introduced in 1876.)

So one cross-case dynamic is whether some Justices will conclude that the Blaine amendment is rooted in religious discrimination but the Louisiana non-unanimous jury rule is not rooted in racial discrimination. Both cases rely in part on general histories of discrimination happening at the time the provisions were enacted. (There is also a ton of specific history about the racist origins of the non-unanimous jury rule—Thomas Frampton has an article on this.)  On this particular point, it’s also potentially relevant that the states re-ratified the provisions after they were initially enacted for purportedly discriminatory reasons. Justice Alito’s dissent in Ramos, for example, writes that “[W]hatever the reasons why Louisiana and Oregon originally adopted their rules many years ago, both States readopted their rules under different circumstances.” I’m sure that Justice Alito is about to say the same thing about Montana too! Although the Montana constitutional provision at issue in Espinoza was initially passed in 1889, Montana rewrote their constitution in 1974.  (Note: I am not at all sure he will say the same thing.)

 9. Habeas arcana (this might just be of interest to me!). One big issue after Ramos will be what happens to all of the Louisiana and Oregon convictions that were obtained by non-unanimous juries?  Will they be vacated because of the Court’s ruling?  One major obstacle will be the Court’s doctrine of retroactivity—which says that new rules of criminal procedure generally do not apply to cases that have become final. But there’s an exception for new watershed rules of criminal procedure that affect the likelihood that an innocent person may have been convicted. In a prior decision, the Court expressed doubts about whether there were any such watershed rules of criminal procedure that had yet to be discovered. But Ramos might be as good a candidate as any for such a decision – the origins of the non-unanimous jury rule suggest that unanimity is in fact relevant to the likelihood of convicting an innocent defendant. And equally importantly, the fallout from holding that rule retroactive would be less than in many other cases, given that only Louisiana and Oregon had such a rule. So perhaps we will see a watershed rule of criminal procedure be recognized. (There are other obstacles to vacating convictions as well – including whether the person convicted is still in custody and whether the person previously raised this particular claim. On the latter, there are a few ways for a defendant to argue they should be excused for having failed to previously raise the claim before. One would be that their lawyer was constitutionally ineffective for failing to raise the argument. Another would be that the claim was so novel they can be excused for failing to raise it. It’s not clear if either argument would succeed – I’ve written about this several times before – but definitely worth watching.)

10. The only outstanding opinions from October are the Puerto Rico bankruptcy cases and the Title VII cases (about whether employers can fire individuals because of their sexual orientation or gender identity). The only Justices who have not written opinions from that sitting are the Chief, Justice Ginsburg, Justice Breyer, and Justice Kavanaugh… (The Court DIG-ed the juvenile resentencing case from that sitting.)

@LeahLitman

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