April 20, 2020

SOME FUN AX-GRINDING GOING ON HERE:

Unusual Supreme Court Lineup Holds that Jury Verdicts in (Most) Criminal Cases Must Be Unanimous (JONATHAN H. ADLER, 4/20/20, THE VOLOKH CONSPIRACY)

Here's how that breaks down: Six justices (Gorsuch, Thomas, Ginsburg, Breyer, Sotomayor, Kavanaugh, agreed with the Court's bottom line conclusion, but Justice Gorsuch's opinion is only joined in its entirety by three justices (Gorsuch, Ginsburg). Justice Alito's dissent was joined by Chief Justice Roberts and Justice Kagan, in part.

Justice Thomas wrote separately because he wanted to "make clear that this right applies against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause." Historically, the Court has incorporated rights against the states through the Due Process Clause. Many academics think this is an error, and Justice Thomas has long indicated he does as well.

One issue dividing justices in Ramos is the treatment of precedent, as the decision overturned Apodaca v. Oregon, a 1972 decision upholding the constitutionality of nonunanimous criminal convictions in state court. Both Justices Sotomayor and Kavanaugh wrote separately to discuss the reasons for overturning Apodaca. (Sotomayor also wanted to note the "racially biased origins" of laws allowing nonunanimous juries to convict people of criminal offenses.)

Justice Alito's dissent stressed the importance of stare decisis. This issue also likely explains the Court's lineup here, as Chief Justice Roberts and Justice Kagan are the Court's most vocal defenders of upholding precedent (though not always in the same cases). Justice Kagan has become particularly vocal in her defense of stare decisis, so it's also no surprise that she does not join the portion of Alito's dissent that explains why, in his view, the argument for overturning Apodaca was not as strong as the argument to overturn precedents in other recent cases.

Posted by at April 20, 2020 11:41 AM

  

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