The Sixth Amendment says that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." This week, the Supreme Court heard oral arguments in a case that asks whether that constitutional provision should be allowed to mean one thing in federal court and something else in state court.

At issue in Ramos v. Louisiana is an aspect of criminal procedure known as the unanimous jury rule. According to a long line of Supreme Court cases, the Sixth Amendment requires a unanimous jury verdict before an individual may be convicted of a crime in federal court. At the same time, however, in Apodaca v. Oregon (1972), the Supreme Court held that state criminal convictions do not require a unanimous jury. Ramos v. Louisiana centers on whether this two-track approach is constitutional when it comes to criminal juries.

Evangelisto Ramos was convicted of second-degree murder in 2015 by the 10-2 vote of a Louisiana jury. Had a federal jury failed to reach a unanimous verdict in his case, Ramos never would have been convicted. At the Supreme Court this week, Ramos' lawyer, Jeffrey Fisher, told the justices that "what we're asking you today to do are to reaffirm two things the Court has said many, many times over the years. One is the Sixth Amendment requires unanimous verdict. And, second, when an incorporated provision applies to the states, it applies the same way as it does to the federal government."

Fisher's reference to incorporation was a reference to the 14th Amendment, which, among other things, forbids the states from violating fundamental individual rights. For over a century, the Supreme Court has invoked the 14th Amendment as a means of incorporating, or applying, the various provisions contained in the Bill of Rights against the states. In fact, the Court did so just last term. In Timbs v. Indiana (2019), the justices held that the Eighth Amendment's ban on the imposition of "excessive fines" applies equally against the federal government and the states. "If a Bill of Rights protection is incorporated," the Court said in Timbs, "there is no daylight between the federal and state conduct it prohibits or requires."

That's the approach that Ramos and his legal team want to see adopted when it comes to the Sixth Amendment's unanimous jury rule.

Judging by the oral arguments, at least some members of the Court seem potentially inclined to decide the case that way.

"We have 32,000 people that are currently serving time for serious crimes," Louisiana's Solicitor General Elizabeth Murrill told the justices. "Each of these convictions would be subject to challenge if Apodaca is reversed" and the non-unanimous criminal jury system for the states is declared unconstitutional.

"Counsel, on your reliance interests," Justice Neil Gorsuch observed a few minutes later, "you say we should worry about the 32,000 people imprisoned. One might wonder whether we should worry about their interests under the Sixth Amendment as well." How much weight, Gorsuch asked, should the Court give to "a single state's claim of reliance with respect to a subset of criminal convictions, when we're talking about a Constitution that's supposed to endure?"

Justice Brett Kavanaugh struck a similar note a few minutes after that. "Assume the Sixth Amendment requires unanimity. I know you disagree," he told Murrill. "It seems to me there are two practical arguments for overruling Apodaca," Kavanaugh continued. "One is, as Justice Gorsuch says, there are defendants who have been convicted and sentenced to life, 10-2 or 11-1, who otherwise would not have been convicted. So that seems like a serious issue for us to think about in terms of overruling."

The other argument, Kavanaugh said, is that Louisiana's non-unanimous jury approach "is rooted in a—in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s." Don't those two arguments, Kavanaugh asked the state's solicitor general, seem to cut against your case?

Other members of the Court, however, seemed potentially less inclined to overturn the precedent allowing for non-unanimous criminal juries in the states. "It is certainly true that we, in recent years, have rejected the two-track idea about incorporation, but the opposite isn't a crazy idea," Justice Samuel Alito told Murrill. "It's a respectable argument…. It hasn't won the day completely, but that's what Apodaca rests on."

"Well, Justice Alito," Murrill replied, "if you're telling me that there is a little bit of daylight, then I'll take it."

A decision in Ramos v. Louisiana is expected by June 2020.