Courthouse Steps Decision Teleforum: Ramos v. Louisiana

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's Courthouse Steps Decision Teleforum. This afternoon's topic is titled, "Ramos v. Louisiana." My name is Greg Walsh, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us John Richter, who is a Trial and Investigations Partner in the Special Matters and Investigations Practice Group and represents, in defense, companies' boards of directors, committees, and individuals facing a variety of white collar criminal and regulatory enforcement matters, parallel civil litigation, and internal corporate investigations.

 

John previously served as the Acting Assistant Attorney General in charge of the criminal division at the U.S. Department of Justice and is the U.S. Attorney for the Western District of Oklahoma, having been nominated by President George W. Bush and confirmed by the unanimous consent of the U.S. Senate.

 

After our speaker gives his opening remarks, we will go to audience Q&A.

 

      Thank you all for sharing with us today. Mr. Richter, the floor is yours.

 

John C. Richter:  Great. Thank you, Greg. And welcome, everyone. I hope everybody is healthy and as are your friends and family.

 

      So I have a chance today to talk about the Ramos v. Louisiana decision handed down by the Supreme Court yesterday. As many of you have probably read, the Supreme Court held that the Sixth Amendment guarantees criminal defendants the right to a unanimous jury verdict in both federal and states court now.

 

      The Court's 6-3 decision regarding the Sixth Amendment and juror unanimity and the fact that the Sixth Amendment is incorporated fully against the states was probably the least controversial and least debated aspect of the opinion.

 

      The Court fractured very badly over the precedential weight that should be accorded and its prior Sixth Amendment decision in Apodaca v. Oregon from 1972. And in reading the opinion, you can see there are significant doctrinal differences between the justices regarding the approach in this particular case and the role of stare decisis in constitutional cases and obviously here, in a criminal constitutional case.

 

      Given the fractured nature of the opinions and the complicated nature of the Apodaca case that was aggregated, it remains to be seen exactly when the consequences or what the consequences will be for stare decisis and whether the rhetoric amongst the justices, most of which of course really is dicta here, how that plays out in subsequent decisions and which decisions they harness it for.  

 

It's clear, however, that Justice Gorsuch, who wrote the majority, certainly pushed strongly a school of thought suggesting that the power of stare decisis should be weak in scenarios where constitutionally protected interests are at stake and where the prior decision is hard to justify in order to prevent wrongly decided cases or incorrectly decided cases from permanently limiting or foreclosing rights guaranteed by the Constitution.

 

I'll give a little bit of background about the Ramos case. Evangelisto Ramos was charged in 2014 with sexual assault and second-degree murder. And in his trial, only -- it was a 10-2 verdict, voting to convict, and he was sentenced to life without parole.

 

Obviously, in most states, in 48 states and frankly in Louisiana today, if the crime had been committed in 2020, a 10-2 verdict would be a mistrial. And Louisiana had passed a constitutional amendment requiring unanimous jury verdicts for crimes committed after December 31, 2018. And so the Court was considering a rule that was going to rapidly fall into the past.

 

To some degree, that may play -- has played a bit into the reasoning of some on the Court as this rule certainly to a majority of the members of the Court, did not seem like it was too big to fail.

 

Ramos obviously challenged his conviction, arguing that the Sixth Amendment guarantees defendants the right to a unanimous jury verdict. And the state appeals court rejected that argument, so Louisiana Supreme Court denied cert in 2018. And the U.S. Supreme Court granted cert in 2019.

 

Oral argument was held in October of 2019, and the Court released its opinion yesterday. During the litigation that led up to the decision, there was certainly, in addition to the parties, numerous amicus curiae briefs that were filed. Majority overwhelmingly were filed on behalf of Ramos and argued for incorporation of the unanimous jury trial right against the states.

 

However, there were a group of states that included Utah, Alabama, Alaska, Arkansas, Florida, Georgia, Kansas, Nebraska, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, and Puerto Rico which filed briefs in support of Louisiana's position in the case.

 

Notably, you'll see in the opinion, some were referenced to that amicus and the suggestion that some of those states at least indicated in their briefs that they would be interested in exploring potentially whether they had the right to non-unanimous juries in the future.

 

Obviously, this case was only dealing with Louisiana and also Oregon, although Oregon obviously was an amicus in the case. The Court, in the decision, grappled with some of the historical reasons for the requirements of non-unanimous and unanimous juries, both at the time prior to the Founding, at the time of the Founding, back in English history that predated the Founding.

 

And Justice Gorsuch certainly relied on that history in part to justify his reasoning in overturning the Louisiana and Oregon rules and ensuring that unanimous jury is part of the Sixth Amendment right that is incorporated to the States.

 

In particular, Justice Gorsuch noted that there's strong evidence that Louisiana originally adopted its rule in 1898 during a constitutional convention and that the speakers expressed views that directly showed that they intended to diminish black American influence on juries in Louisiana and that this was part of a so-called Jim Crow racial segregation efforts in the state at the time.

 

Justice Gorsuch also pointed in his opinion to the time of Oregon's adoption of its requirements of non-unanimous juries. Oregon had an 11-1 requirement for jury verdicts in criminal cases. And he pointed to, and what he claimed in his opinion, to have been a time in 1930s of growing clan, Ku Klux Klan, influence in the State of Oregon and that the efforts in the state legislature to allow for non-unanimous juries were a reflection of an attempt to dilute the influence of minorities on juries.

 

Obviously, the Sixth Amendment simply states that the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state wherein the crime shall have been committed. In the Apodaca v. Oregon decision in 1972, the Supreme Court held that a non-unanimous jury in a state criminal court did not violate the Sixth Amendment right to an impartial jury.

 

But the decision was even more fractured than the present opinion in that it involved seven opinions, none of which commanded a majority of the Court. The lead opinion was drafted by Justice White and joined by the Chief Justice Burger, Justice Blackmun, and Justice Rehnquist. There were then four dissenters, Stewart, Brennan, Douglas, and Marshall. And then Justice Powell joined the opinion drafted by Justice White but did so based on his own reasoning.

 

So what got teed up then ultimately in the Ramos decision is what the impact was of Justice Powell's opinion since presumably it was the most narrow or could be construed as the most narrow basis for the outcome in the Apodaca decision in 1972.

 

Funny enough, the Court in the Ramos decision, none of the justices actually squarely answered that decision as to what is the most narrow ground for the Apodaca decision and whether in fact it's truly correct that Justice Powell's solo opinion is in fact the most narrow ground because it certainly the most narrow in the sense that it had one justice on it.

 

But is it most narrow in terms of its breadth given that Justice Lewis Powell was asserting what he referred to as dual-track incorporation theory, which held that when certain Bill of Rights amendments that have applied a rule at the federal level don't necessarily have to apply exactly in the same way at the state level. There's no doubt about it, however, that Justice Powell's solo opinion became the basis for his controlling vote.

 

In the decision yesterday, there were five -- although it's a 6-3 vote abrogating Apodaca and holding the Sixth Amendment establishes a right to unanimous jury in both federal and state courts, but there are five opinions. What's, I think, probably most interesting for court watchers is that these five opinions did not break in what are often characterized as sort of the traditional ideological fault lines that tend to be emphasized in media coverage.

 

There is an opinion by the Court written by Justice Gorsuch, joined in full by Breyer and Ginsburg, joined in part by Kavanaugh and Sotomayor. There's a concurrence by Sotomayor, a concurrence by Kavanaugh, a concurrence by Thomas, and then a dissent by Justice Alito joined by the Chief Justice and in part by Justice Kagan.

 

So you can come up with a scorecard and break it down as to who joins what. But notably, Justice Gorsuch's opinion is only joined in all respects by he, Justice Ginsburg, and Justice Breyer. So that's interesting company.

 

And of course -- but as for the ruling on juror unanimity, there's six votes. The Gorsuch writing for the Court looks at the plain language of the Sixth Amendment's right to a trial by an impartial jury, concludes that an impartial jury must have some substantive content and requirements, looks at English history and unanimity of trial juries at the time of the Founding, and concludes that one of those substantive requirements, it must've existed and in fact is unanimity.

 

What's, of course, interesting is that, again, obviously, is a leap of logic. We know that in the history, and this is dealt within the opinion, we know in the history of the adoption of the Sixth Amendment, which was ratified ultimately in 1791, that the original version adopted in the House made express reference to the jury having to be unanimous.

 

That was taken out in the version that the Senate approved and that ultimately then was approved by both Houses and then ratified by the States. There is therefore the back and forth debate as to whether it was taken out because it was unnecessary, or it was taken out because substantively there was an intent to allow the question of whether a unanimous jury was required to be decided by the several states. That decision presumably remains to be argued by scholars and historians but obviously is done as a matter of the Supreme Court, at least for now.

 

As to the incorporation of the States, Justice Gorsuch wrote that there can be no question that the Sixth Amendment unanimity requirement applies to state and federal criminal trials equally. There certainly was what one would've thought that from the Supreme Court's decision in 1968 in Duncan v. Louisiana that had incorporated the Sixth Amendment for other purposes unrelated to this unanimity requirement, that the breadth of the language in the Duncan v. Louisiana case would have led to that being the rule across the board for the Sixth Amendment.

 

But obviously, the Apodaca decision in 1972 certainly changed that conclusion. All I can say is the one thing I can -- one thing that constitutional scholars seem to all agree upon is that you don't really know what the Supreme Court means in any particular Supreme Court decision until there's a decision later that tells you what the Supreme Court says it meant in its prior decision.

 

In terms of stare decisis, which is the far more interesting decision, the aspects of this decision, Justice Gorsuch basically is quite dismissive of the Apodaca decision and asserts that those practices always stood on shaky ground, notwithstanding the Court's 1972 decision upholding it.

 

He reasons that because the decision had been a 4-1-4 decision and because Justice Powell's control and concurrence was based on this theory of dual-tracked incorporation that even Justice Powell can see if it was foreclosed by a relatively recent prior precedent, Justice Gorsuch writes that it's difficult to see what the Apodaca decision holding was and what rationale would've permitted the same result in future cases.

 

But obviously, the Court had decided and had upheld the Louisiana rule, or the Oregon rule, and Louisiana and Oregon then continued to rely upon that rule after that decision was handed down. I think one of the challenges for the State of Louisiana in arguing this case was that the Supreme Court had not definitively ruled on the propriety of non-unanimous juries, even in the Apodaca decision.

 

And therefore, it was hard to argue that the rule of unanimity was not at any level constitutionally based such that the States could head down the road of having a 9-3 or a 7-5 rule. And so there was, I think, you had this slippery slope arguments that then Louisiana had to deal with in its position, as well as the fact that 48 states had a contrary rule.

 

Gorsuch loads up his opinion on various prior decisions in which the Court had stated over 120 years -- as he puts it 13 times in over 120 years that the Sixth Amendment required unanimity in jury trials. There's obviously probably a little bit of over-characterization there given that the Apodaca decision seemingly would not have held, but it held if those other cases had truly required unanimity in jury trials. That said, there was certainly a large number of cases in which it appeared that the Sixth Amendment was incorporated.

 

Justice Gorsuch gets into, then, stare decisis in Part IV-A of the decision, which interestingly enough is joined by Justices Ginsburg and Breyer. And I'm not sure why because he does some things -- Justice Gorsuch says some things in that that one would think those justices might not have joined on, but they did.

 

First, he states that the Court doesn't need to overrule Apodaca because it was not established precedent. Justice Alito in dissent really goes after Justice Gorsuch's opinion on this point and makes the point well, if it's not precedent, what is it? It's a decision by the Court. It upheld a rule at the time. The parties could rely upon it. But how does that not then make it precedent? You may disagree with it. You may think it's poorly reasoned, but it has to be precedent. And that obviously remains an open question as to if it's not precedent, what is it?

 

And Justice Gorsuch replies that to accept it as precedential, the Court would be determining that a single justice writing only for himself had the authority to bind this Court to propositions it had already rejected.

 

I suppose, however, there's another way to look at it which is that Apodaca is precedential. It's just that the reasoning within it, it can't be accorded much weight because there's no majority opinion and that that doesn't mean that it's not precedent. It just means that presumably its value is lessened since there wasn't a sufficient consensus to gain a majority on any one view in the case.

 

In Part IV-B of Justice Gorsuch's opinion for the Court, in addition to Ginsburg and Breyer, Sotomayor and Kavanaugh join, at least Kavanaugh in part joins. And in that portion of the opinion, Justice Gorsuch writes that even if Apodaca was controlling precedent, no one in the Court is prepared to say it's rightly decided and stare decisis isn't supposed to be the art, as she puts it, "the art of methodically ignoring what everyone knows to be true."

 

So obviously, he's very dismissive of the reasoning in the Apodaca decision. And relies on the other precedent. And then finally, just takes care of and dismisses the reliance argument that were raised by the State of Louisiana and accorded much greater weight by Justice Alito in his dissent.

 

Justice Gorsuch looks at the fact that obviously Oregon and Louisiana will have to start over on all -- at least on all cases that are on direct appeal or at the trial level that involve conduct that predates the passage that would be presumably from 2018 or earlier committed offenses. And he acknowledges that that would truly impose a cost but notes that one, it's only in two states. Secondly, that the numbers involved are likely to be potentially fewer than some of the other criminal constitutional decisions that had been made in recent memory. And he cites to United States v. Booker, which overturned, obviously, the binding nature of the U.S. sentencing guidelines and led to a lot of cases in which defendants had to be resentenced.

 

He then notes as dicta but presumably trying to argue the case in advance that this would be a new rule of criminal procedure and therefore under the Court's retroactivity jurisprudence, would not normally apply in collateral view. But obviously, he acknowledges that the specific issue is not before the Court.

 

He concludes and dismisses this reliance argument by basically saying that even if the States needed to "retry a slice of the prior criminal cases, it cannot outweigh the interests we all share in the preservation of our constitutionally promised liberties." So he wraps himself in the flag and marches off.

 

Justice Sotomayor writes a concurrence. She certainly joins in overruling the Apodaca decision. And she reasons that it's fundamentally in conflict with two major lines of precedent: the Sixth Amendment's unanimity principle and the Court's incorporation doctrine. She also makes the point in her concurrence that stare decisis should be weakest in cases where fundamental constitutional rights bump up against criminal procedures and notes that this was uniquely true when the historical evidence indicated that Oregon and Louisiana's non-unanimous jury rules were rooted in racial animus and bias.

 

Justice Kavanaugh also writes a concurrence. It's very lengthy. He lays out his views on prudential systematic principles that should govern when deciding whether to overrule constitutional precedents. He comes up with his own list of some considerations. And he notes that really, it's like we always seem to have -- it's basically a three-part test.

 

The Court should only overrule constitutional precedent it determines if it's not just wrong but grievously -- or egregiously wrong. Number two, the Court should consider whether the incorrectly decided precedent "caused significant jurisprudential or real-world consequences." And three, the Court should consider the extent of reliance on the prior constitutional decision.

 

Justice Kavanaugh joins Justice Gorsuch in his opinion because he concludes that the Apodaca decision was egregiously wrong and led to cases where defendants were convicted who might otherwise not have been, which obviously would trigger, in his view, the significant jurisprudential of the real-world consequences and that the states would find it easy to apply the unanimity requirement and thus support overruling Ramos.

 

Justice Thomas in a short concurrence agrees that the Constitution requires unanimous jury verdict for state defendants, like Ramos. He asserts, however, that the right applies to the States not through the due process clause but rather through the Fourteenth Amendment's Privileges and Immunities Clause.

 

This has been the theory that he has been espousing for many years, and many decisions he has not yet gotten all the justices to join him on it. But he continues to make the point in decisions where he can.

 

At a quick note, at the beginning, Justice Thomas expresses his view on stare decisis principles and constitutional cases. What he says is that he had applied the Court's prior unanimity precedents because they fell within the realm of possible interpretation.

 

But what he is critical of is what he characterizes as the Court's typical formulation of stare decisis because it does not comport with what he sees as the judicial duty under Article III of the Constitution to simply interpret the Constitution based on the text and other duly enacted federal law rather than relying on stare decisis to the contrary.

 

Justice Alito in the dissent is joined by Chief Justice Roberts and Justice Kagan, Justice Kagan in all but one part. Alito goes at the majority opinion pretty strongly. He writes that whether or not the Apodaca decision was correctly decided, its decision was in fact good law. It was precedential, that Oregon and Louisiana had tried thousands of cases in reliance on that.

 

It was clearly precedent whether there was clear reasoning to which the majority of the Court agreed or not. The result that state courts were not required to have unanimous juries was a controlling result. And the reliance by Oregon and Louisiana was massive and concrete, and therefore since thousands and thousands of trials had been conducted in the 48 years since Apodaca and there would be a potential, as he put it, tsunami of litigation on jury unanimity issue.

 

What's interesting about Justice Alito's opinion, I think, also is the way in which he and Justice Gorsuch go back and forth on the issue of precedent. Justice Alito basically uses a little bit -- is a little snarky. He writes that, "I begin with a question of whether Apodaca was a precedent at all. It is remarkable that it is even necessary to address this question." But in Part IV-A of the principal opinion, three justices take the position that Apodaca was never precedent. The only truly fitting response to this argument is, "Really?"

 

Consider what it would mean if Apodaca was never precedent. It would mean that the entire legal profession was fooled for the past 48 years. Believing that Apodaca was a precedent, the courts of Louisiana and Oregon tried thousands of cases under rules allowing convictions of vote of 11-1 or 10-2. And appellate courts in those states upheld these convictions based on Apodaca.

 

But according to three justices in the majority, these courts were deluded. Obviously, he didn't hold back. And of course, Justice Sotomayor certainly treats Apodaca as precedent, as does Justice Kavanaugh. So arguably, there are five justices in this opinion who stand for the proposition that Apodaca is precedent of some sort.

 

So I think a couple of other areas that I think are interesting and intentioned is certainly Justice Gorsuch is very, very derisive of the functionalist reasoning in the Apodaca decision. Justice Alito, in responding to that, points out and is highly critical of that opinion by Justice Gorsuch and characterizes it as unfair to Justice White because Justice White had expressed his constitutional views about the incorporation of the Sixth Amendment in prior decisions and prior -- that were recent to the Apodaca decision.

 

And Justice Alito, therefore, suggests that he didn't need to get into all that in this opinion and his failure to do so should be therefore taken on the way Justice Gorsuch did. Of course, Justice Gorsuch, being fellow Coloradans, this is probably a little -- to have taken on Justice White on that is, I think, for those people who watch the Court, an interesting development that he would've been so critical.

 

But again, one would have to figure that most of the players on the Court are playing some game of three-dimensional chess here and all this stuff about stare decisis is all trying to setup views and argue about things that are going to end up being teed up in other ways, in other contexts, in other cases.

 

So that's a good, I think, one other thing to point out about some of the interesting aspects of the way things come down in the case is that Justice Kagan, of course, is probably the strongest, again, in terms of reliance on stare decisis. Certainly, in other decisions, she has extoled the value of precedent, and she joined the Chief Justice and Alito here.

 

There's certainly commentators [that] have theories about why. What's interesting, of course, is that the Justice Kagan's own -- she writes her own short opinion in -- has her own view about stare decisis that Justice Alito and Roberts do not agree with.

 

And so it seems pretty clear that Justice Kagan is making sure that she has staked out this ground of stare decisis, and there's maybe many reasons why she's going that way. But she certainly, in her writing in this opinion -- in her opinion, there seems to be chiding a number of her other colleagues that would be traditionally joining her in many decisions.

 

And so it'll be interesting to see how her opinion and these other justices' opinions with regard to stare decisis now get applied in cases that are outside the context of criminal law and outside the context of a relatively narrow and frankly relatively uncontroversial principle of applying unanimity to juries. And I'd say it's not controversial in the sense that 48 out of 50 states, this isn't a problem for.

 

So I'll stop there. There's many questions, I think, that remain unanswered in this case. The fundamental principle means that the State of Louisiana and the State of Oregon are going to have to go back and redo some cases. There's no doubt about that. That will be a hardship on those systems.

 

What that implication of that will be given the pandemic and their ability of their courts to bring cases remains to be seen. And but there will certainly be defendants who will benefit from this and get a windfall out of it. But as I noted, both states have changed their rules, so for the future [audio cut out 36:35], unanimous will apply in those states and there's no disagreements then across the 50 states with regard to unanimity of jury verdicts.

 

So, Greg, you want to open up for questions?

 

Greg Walsh:  Yeah. We'll now go to the first question.

 

John Vecchione:  Hi, this is John Vecchione. So is Bakke precedent?

 

John C. Richter:  Well, it would appear that at least five justices would say that it is, if you really take everybody at face value in their opinions here in the Ramos case.

 

John Vecchione:  Thank you.

 

Kent McGuire (sp):  Hi, this is Kent McGuire. I have a question, I guess, just about comments you might have on Justice Gorsuch's use of the originalist common law approach and how powerful or serious you think that will be in the future because there are many other trial rights -- or that were trial rights that were established in the common law that have been altered in the years since the Founding and that were definitely accepted at the time of the Founding.

 

      One of the ones I'm thinking about off the top of my head is the holding in Boyd v. United States on the Fifth Amendment privilege applying papers. I wonder if you have any comments on that.

 

John C. Richter:  Well, look, I think when it comes to originalist approach to decision making, one would think that you would have a majority on the Court that are going to approach any decision in a criminal case or of constitutional magnitude based on an originalist interpretive approach of the Constitution.

 

      What I think's interesting about it, however, is—and is evidenced here—is that notwithstanding that you now have a majority of justices that I think would all say that they're not going to start with a presumption that the text of the Constitution should control and that they're going to apply an originalist interpretation to reaching a conclusion. If they don't, notwithstanding their agreement on a broad principle, they don't always end up in the same place when they apply that principle.

 

      And certainly, critics of originalism will argue that that shows that originalism in and of itself can't get the job done. I think proponents of originalism will counter and say well, wait. It may not be a perfect methodology, but surely, what else can you start with other than the plain text of the document and the meaning of those words in the document to interpret a constitution? And so that originalism has to be, if imperfect, the best approach.

 

      That's a running debate that is unlikely to be ever completely finished. And even the most harsh proponents of originalism, how it plays out in any particular case is difficult, I think, for scholars and court-watchers to know for certain.

 

      And sometimes, it leads to decisions that are surprising and that lead to some strange bedfellows in constitutional cases. Sometimes, it doesn't. Sometimes -- and so it really is going to very much depend on the particular case and how the case is teed up.

 

      I think in terms of -- I haven't given a lot of thought to Boyd recently to be able to address your question specifically on that front. I would say more broadly, when it comes to search and seizure, that there continues, I think, to be a lot of interest in how the originalism applies when it comes to search and seizure doctrine issues.

 

And I think while it's hubris to predict how any justice is going to rule in a future case without knowing the facts and really being close to the justice's thinking at the particular time, I think it is fair to say, and isn't hubris, to at least note that given the many new circumstances in which documents, papers of an electronic variety, can find their way into the hands of third parties, that I think the Court has been working and has been on a path to change some of the fundamental underpinnings that arose in the Warren Court that were designed, actually, to be helpful to criminal defendants but which had its underpinnings, frankly, bases that were not based on the Constitution.

 

And that I think allowed potentially for -- that don't provide good support if you wish to protect and expand the protection of documents that a person may reasonably expect to be protected and to be their own and yet are now able to be accessed or held remotely by a third party that presumably then are available.

 

      And so we're seeing that in a number of cases. But the question of what constitutes personal papers and reasonable expectation as to those personal papers, I think, is very much an area of interest in the Court. I think it's an area of interest in the defense bar.

 

And the question of this norm of reasonable expectation of privacy is one that is undercut and therefore the Court is grappling with the plain text of the Constitution and the history to try to decide how do you apply that context to this brave new world of electronic documents and virtual documents.

 

And, obviously, everybody is living in a pretty virtual world right now. And I think we, at some level, wherever you are on the ideological spectrum, you want protection for your personal papers. And I believe that the state shouldn't have an easy way to automatically get at those or there has to be at least some reasonable threshold to get those.

 

      So I think those issues remain very much of interest and I think that they'll continue to be teed up in the lower courts and eventually be making their way, each term, to one degree or another at the Supreme Court level.

 

Greg Walsh:  Okay. We'll now go to the next question.

 

Caller 3:  Yeah. I just wanted to know, first of all, how significant it was that Louisiana has already abandoned this non-unanimous procedure because it seems an unusual time to be reviewing it even after Louisiana has already abandoned it itself. 

 

      And my other question just concerns the Espinoza case, which is about the Blaine Amendments and whether you think the Court's concerned with the racial origins of the non-unanimous jury might also be considered by the Court when it reviews the Blaine Amendments prohibiting funding of religious schools.

 

John C. Richter:  Well, both interesting questions. I'll take them in turn.

 

      With regard to the change in the Louisiana rule, obviously, for Mr. Ramos, that rule wasn't going to help him. He had been convicted -- and notwithstanding that there were two jurors who would've acquitted him. And so for he and other defendants who had been convicted under this regime and whose cases had been working their way to the courts and had -- he had started pursuing this before Louisiana changed its law. Remember, he was convicted in 2014. And so his case had wended its way.

 

      In terms of why the Court took the case when it did in 2018, again, I think it took -- at the time the Court took the case, Louisiana had not yet changed its rule. And of course, when Louisiana changed its rule, they did so prospectively. So it did not moot the case. And so the Court had already taken it, and therefore, they decided it.

 

      What's interesting, of course, now, why they took it in terms of the three -- at least three justices voting to take it is obviously not known. But presumably, the broader issue of the incorporation of the Sixth Amendment in the face of the Apodaca decision, which no one on the Court really defended as one of the Court's greatest moments, presumably drove that to some degree.

 

      And there really was no one in this decision, even though it's a 6-3 ruling, who truly has had an argument as to why it's a bad thing to have unanimous verdicts. As a practical level, the best arguments were that states -- that they shouldn't disturb this precedent because of alliance and prudential considerations.

 

      But no one was arguing on the Court that the other 48 states were -- should basically -- or that their rule was appropriate or that the majority of states at the time -- or that all the states at the time of the Founding and through much of the 19th century understood that juries meant a unanimous jury.

 

      So I think on that point, that explains why the Court took the case and given that it wasn't mooted, the Court had to go ahead and decide it.

 

      With regard to your second question about the Blaine Amendments, I haven't followed the briefing on those issues close enough to speak with authority. I would observe that the motivations, the question of motivations in the passage of a law, it has not always been what I call the "conservative" view on the Court.

 

      Certainly, in many criminal cases, for example, the Court has ruled that the motivations of a prosecutor, for example, are irrelevant or the motivations of a police officer are irrelevant in the context of Fourth Amendment jurisprudence, that really the only question is the objective circumstances that there ought to be considered.

 

      It's interesting, obviously, in this case that Justice Gorsuch writing for the Court spent a bunch of time on the motivations of Louisiana and Oregon's legislatures when they first passed the law. Justice Alito, who I would name writing for the dissent, who I think would probably be one of those justices that would generally favor objective rules in the Fourth Amendment context, is highly critical of Justice Gorsuch's use of those historical facts in the opinion.

 

      How that may apply, then, when something like the Blaine Amendment and in terms of motivation, I guess remains to be seen. I suspect there's more to the arguments on that issue than just the motivation of the underlying proponents of the Blaine Amendment.

 

But you raise an interesting analogy as to whether in fact Justice Gorsuch may very well in that decision -- in any decision related to the Blaine Amendment seek to look at the motivations as part of his reasoning if in fact he ends up writing on the decision.

 

Greg Walsh:  Okay. Here's our next caller.

 

Caller 4:  Hi. Thank you for the presentation. it's been excellent. Quick question is this. What can you read from all these decisions about how the Court is approaching interpreting the original Bill of Rights that was enacted in the 18th century versus history that might be relevant after the Fourteenth Amendment? There seems to be a lot of discussion both of 18th Century precedent, English precedent on the one hand but on the other hand, it sounds like from your description there was quite a bit of history discussed after the enactment of the Fourteenth Amendment.

 

Is there anything you can read into the Court's use of history and what happens if there's tension between 18th Century precedent that didn't consist in with, let's say, the late 19th Century. How do you think all that stuff gets squared up by the Court from what you saw in all these opinions?

 

John C. Richter:  I think the short answer is I don't know. That's the honest answer.

 

      I will say that Justice Gorsuch in his decision seems to go out of his way to blow through true analysis about incorporation, and to the snakes, he spends very little time on it. He cites to the many precedents that exist already that take you there.

 

      So he, in his reasoning, he essentially walks through it like this. He says trial by an impartial jury meant at the time of the Founding unanimous juries because everybody just had unanimous juries. And it also meant that at the time of the English -- in prior English jurisprudence.

 

He, therefore, really doesn't take on the question of whether at the time of the passage of the Fourteenth Amendment there was an intent to incorporate this part of the Sixth Amendment through to the States. He doesn’t -- that part of the logic chain, he chooses to give relatively little attention to and simply relies on the many cases, including Duncan v. Louisiana, that speak broadly about incorporation of the Sixth Amendment.

 

      But when it comes to looking at the Civil War amendments, more broadly, and looking at the Bill of Rights, when you move the -- in this case, you're dealing with an incorporation case where a lot of that incorporation jurisprudence -- and it was a hot topic for many, many, many years.

 

      The Court has not -- although, I think no longer, there doesn't appear to be much interest on the Court in this decision on arguing about incorporation here. That's not to say there might not be another decision down the road. There are certainly aspects of the Bill of Rights that are not incorporated to the States currently. The Supreme Court in a decision called Hurtado expressly ruled that grand juries are not required in the States.

 

      So you've got a number of states that bring criminal charges not using grand jury but rather through other means, through information and then having a plea trial hearing. But the question of incorporation is not a currently very hot topic in the Court. So it appears that any of these justices really want to go and get into the due process clause and really unpack it.

 

Obviously, Justice Thomas makes mention of his belief that the due process clause isn't the basis for incorporation. That it should be to the Privileges and Immunities Clause in the Fourteenth Amendment. But nobody else rises to that bait in this opinion. And then nobody else has risen to that bait in other opinions to date.

 

      In another context, where the Civil Rights era amendments are in play and you're comparing it then to the Bill of Rights, outside the criminal justice context, I would expect the Court and the justices to be looking at those respective histories pretty closely and the plain text of those amendments.

 

      It certainly -- because those later amendments obviously came at a different time in American history, and the intent and the text of those amendments obviously has wide-ranging effects in other contexts outside the criminal justice realm.

 

But I don't see anything in this opinion that certainly look as if the justices are foreclosing their ability to rely on history either prior to and even around the Founding. And later, in the 1860s when the post-Civil War amendments to -- anything in this opinion that would foreclose them from relying on the history as they deemed necessary to support their views about the meaning of a particular text of the amendment as it may apply.

 

Greg Walsh:  John, while we wait for another question, is there anything you want to emphasize or conclude with on this topic?

 

John C. Richter:  Yeah. I think the only other topic of issue I think is going to be the question that'll still remain to be decided, and that is the retroactivity of this decision in Ramos. The Supreme Court in -- various justices take on the question of retroactivity even though it was not before the Court and therefore is dicta. We know that the analysis is likely to turn on the Court's precedent from 1989 in Teague v. Lane.

 

The interesting thing about that decision, of course, is here, the Supreme Court struck down an unconstitutional law which for years was used in criminal cases. And then the question is should defendants whose cases were final before that decision be able to claim re-sentence -- re-trial under Ramos? That's going to be the issue that's teed up for lower courts in the wake of Ramos.

 

      Certainly, the rule on retroactivity post-Teague v. Lane is that all defendants whose cases re not final on direct appeal receive the retroactive benefit of the new Supreme Court constitutional criminal procedure decision. And that cases that are final don't receive that benefit so that what that means is that decisions that would be on habeas, collateral review, wouldn’t get the benefit of the ruling in Ramos.

 

What that means plainly then for defendants whose convictions have been upheld on appeal and are final in Louisiana and Oregon but who were convicted with non-unanimous juries, that under that theory and under that reasoning based on Teague, that they would not get the benefit of Teague.

 

      That's certainly the view expressed by Justice Gorsuch and in his opinion in Section IV-B-II. And he's joined by Sotomayor, Kavanaugh, and Breyer in that portion of the decision. It's not a majority. Justice Kavanaugh is very directive in his concurrence that Teague should apply as I just described it.

 

      But Justice Alito in dissent suggests that the possibility may be different because he points out that Teague applies only to a new rule and that the positions taken by the majority may lead to the conclusion that the rule announced today is not a new rule but rather is an old rule. If Apodaca is not precedent and everybody should've already known that unanimous juries were required, it's not really a new rule. It's an old rule. And if it's an old rule, then the Teague limitation to collateral tack wouldn't apply.

 

      Again, whether in fact lower courts are really going to buy that Justice Alito's criticism that this is really not a new rule and his criticism to Justice Gorsuch's majority opinion remains to be seen. One would bet that a lot of the lower courts are going to, notwithstanding that concern expressed by Justice Alito, are going to nonetheless see this as effectively a new rule and thereby foreclose its use in collateral appeals.

 

      But I would expect an able defense counsel to be raising it. I would also expect that they'll also be raising ineffective assistance of counter claims in habeas decisions arguing that their prior counsel was ineffective because the prior counsel failed to raise the non-unanimous jury issue at trial or on their direct appeal. And that remains to be decided.

 

      Justice Kavanaugh actually in dicta addresses that in his concurrence and suggests that the rule that this court of appeals has consistently held that an attorney's not ineffective for failing to anticipate or abdicate for the overruling of a constitutional precedent of this Court and that therefore, ineffective assistance claims on collateral attack or habeas on that basis would also fail.

 

      But again, there's going to be this litigation. It will be tested. And I think that's an interesting consequence of what'll come out the Ramos decision.

 

Greg Walsh:  Perfect. Well, on behalf of The Federalist Society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.