The Supreme Court Just Struck Down the Last State Law Allowing Split Jury Verdicts

This commentary is part of The Appeal’s collection of opinion and analysis.

On Monday, the U.S. Supreme Court ruled that the Constitution requires a unanimous jury verdict in order to convict defendants of serious offenses in state court. Before today, Oregon was the only state to allow convictions based on split verdicts—a distinction it earned after Louisiana voters largely abolished the practice in 2018. 

The decision in Ramos v. Louisiana could affect thousands of ongoing criminal proceedings, and provide hope for relief—and perhaps even for release—to many more who were convicted under this now-unconstitutional standard. It’s significant for an untold number of future defendants, too: Evidence shows that jury unanimity is likely to encourage more thorough deliberations, reduce error, and increase public confidence in verdicts. There is also research indicating that unanimous juries could cut down on racial inequities in the legal system. One study, for example, found that nonunanimous verdicts in Louisiana are more likely in convictions of Black defendants than of white defendants—and that Black jurors are more than twice as likely than white jurors to vote to acquit, only to be overruled by majorities voting to convict.

This case may prove significant for reasons that go beyond the constitutional right to a unanimous jury verdict, too. The justices spend most of their opinions jousting about when it is appropriate for the Court to overturn its prior decisions, foreshadowing debate over the future of reproductive rights, gun control legislation, affirmative action, and other polarizing issues the Republican-controlled Supreme Court is likely to take up in the years ahead.

In 2016, Evangelisto Ramos was found guilty of second-degree murder in New Orleans after ten of twelve jurors voted to convict him. Writing for a badly-fractured Court—the 6-3 majority opinion elicited three separate concurring opinions, in addition to the dissent—Justice Neil Gorsuch found that this outcome violated Ramos’s Sixth and Fourteenth Amendment rights to a trial by an impartial jury, overturning a case, Apodaca v. Oregon, that tentatively reached the opposite conclusion some five decades earlier. 

The justices repeatedly noted the racism underlying the historical use of nonunanimous juries: Gorsuch’s majority opinion and Justices Sonia Sotomayor and Brett Kavanaugh’s concurring opinions note that the laws are the products of overt bigotry. In Louisiana, its passage was a direct response to the constitutional prohibition against discrimination against Black jurors; allowing just 10 of 12 of them to convict allowed majority-white juries to convict Black defendants without having to convince Black jurors to do the same, effectively rendering the presence of Black jurors meaningless. 

Oregon’s law, meanwhile, coincided with the rise of the Ku Klux Klan, and was the result of Great Depression-era efforts in the state to dilute the influence of racial and religious minority groups. “Today, Louisiana’s and Oregon’s laws are fully—and rightly—relegated to the dustbin of history,” Sotomayor wrote. “While overruling precedent must be rare, this Court should not shy away from correcting its errors where the right to avoid imprisonment pursuant to unconstitutional procedures hangs in the balance.”

The Court’s decision comes two years after Louisiana voters passed a ballot measure to do away with its archaic rule and require unanimous verdicts for felony convictions. That shift, however, did not apply retroactively, which means that some defendants in state prisons are serving time based on a margin that would no longer be sufficient to convict them. In its brief, Louisiana suggested that as many as 1 in 4 verdicts could be imperiled if the Court were to consider retroactively applying a rule against nonunanimous convictions. In an amicus brief, Oregon Attorney General Ellen Rosenblum protested that overturning Apodaca could require automatic retrial in thousands of criminal cases pending on direct appeal, and potentially jeopardize the verdicts in thousands of already-decided cases. The Court, however, noted that new rules of criminal procedure usually impose costs on states, and that that is not a compelling reason for it to rule otherwise.

As Gorsuch notes, the substance of this case was not especially controversial. He framed the outcome as a simple, overdue correction to the erroneously-decided Apodaca case, criticizing it as incorrectly reasoned at the time and wildly out of step with both subsequent cases and modern approaches to constitutional interpretation. Ramos, he concludes, allows the Court to fix this mistake once and for all. “Not a single Member of this Court is prepared to say Louisiana secured [Ramos’s] conviction constitutionally under the Sixth Amendment,” he wrote.

Instead, he and the other justices used the case to prepare for some of the pitched ideological battles looming on the horizon. Gorsuch asserts that Apodaca improperly substituted its own reading of the Sixth Amendment for what he calls the Constitution’s “ancient guarantee” of the right to a unanimous jury verdict. Americans did not create constitutional rights to serve as “fruitful topics for future cost-benefit analysis,” he wrote, but instead to “ensure that their children’s children would not enjoy the same hard-won liberty they enjoyed.” It is not difficult to imagine conservatives deploying this line of reasoning and sweeping language to roll back, for example, gun safety laws that they decide cannot evade the Second Amendment’s unambiguous promise.

Similarly, Kavanaugh concurred with the result but wrote separately to outline his own framework for overturning precedent. In it, he emphasized his view that the Court is more empowered to overrule itself in constitutional matters, especially when its earlier decisions are “unmasked as egregiously wrong based on later legal or factual understandings or developments.” Again, it is easy to see him using this premise to, for example, argue that policies correcting for historical racial discrimination are no longer necessary, or that the fragile framework of Planned Parenthood v. Casey, which upheld the constitutional right to abortion, is too convoluted to pass constitutional muster.

The clearest shot across the bow in Ramos, however, came in Justice Samuel Alito’s dissent. In that opinion, joined in full by Chief Justice John Roberts and in part by Justice Elena Kagan, he predicted that overturning Apodaca would impose a “crushing burden” on state courts, and argued for upholding it based on Oregon’s “reliance” on the result. This choice of words is not a coincidence: While affirming the right to abortion access in Casey, the majority noted that over the two decades that had elapsed since Roe, Americans had developed an important reliance on that access, with which the Court was reluctant to interfere. 

“By striking down a precedent upon which there has been massive and entirely reasonable reliance, the majority sets an important precedent about stare decisis,” Alito wrote in Ramos. “I assume that those in the majority will apply the same standard in future cases.” In losing one argument, Alito may be positioning himself and his fellow conservatives to try and win another.

Jay Willis is a senior contributor at The Appeal.