Working from home Monday, the Supreme Court handed down an interesting decision concerning the rights of criminal defendants, a decision that split the Court in rather a unique way. The case was Ramos v. Louisiana, in which a convicted murderer challenged that state’s law that a unanimous jury verdict was not required in a criminal case. (Ramos was convicted by a 10-2 jury vote.) At issue was whether or not the Sixth Amendment’s guarantees required unanimous verdicts in criminal cases arising in state courts. In 1972, in Apodaca v. Oregon, a badly split Court had ruled that it did not. Subsequent Supreme Court decisions have treated Apodaca like a red-headed stepchild, layering on ambiguity and avoiding the subject until nobody was really sure of Apodaca's value as a precedent. As of Monday, it has none.

By a vote of 6-3, the Court ruled that the Sixth Amendment’s guarantee of a fair trial also guarantees a unanimous verdict for conviction in state courts. Justice Neil Gorsuch wrote the opinion in which he was joined by Justices Brett Kavanaugh and Clarence Thomas, as well as three of the four liberal justices. The fourth, Justice Elena Kagan, joined Justice Samuel Alito and Chief Justice John Roberts in dissent. (Kagan’s dissent leaned hard into stare decisis.) Ultimately, the debate on the court apparently centered on the application of the doctrine of stare decisis to Apodaca. It's a decision nobody ever really liked, and one that had at its heart the fundamental absurdity that unanimous jury verdicts should be required in federal criminal cases, but not in state criminal cases, where the majority of criminal cases are adjudicated.

In his majority opinion, Gorsuch was quite clear that it was time for Apodaca to go. He even cited the fact that Louisiana’s reliance on non-unanimous verdict had been born in the days of Jim Crow, coupling it with other laws adopted at the time, including the poll tax, at a “Redeemer” state constitutional convention called for the express purpose of "establish[ing] the supremacy of the white race.” (Oregon, the only other state to allow non-unanimous verdicts, adopted the policy at the instigation of the Ku Klux Klan.) You know a decision is odious when Neil Gorsuch starts sounding like Thurgood Marshall, even for only a moment. If you are nervous that Gorsuch, Kavanaugh, and Thomas joined up to hand-wave stare decisis, you have a right to be. But this was the correct call.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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