The SCOTUS ruling on unanimous jury verdicts was far from unanimous

In the case of Ramos v. Louisiana, the question at hand seemed fairly straightforward. Only one state in the nation still allows convictions in criminal cases without the unanimous consent of the jury. (Washington state allows convictions with two dissenting jurors. Louisiana did until just recently.) Is it constitutional to do that? Now the Supreme Court has issued the final decision in the matter, though they did it without a unanimous verdict of their own. It’s not. You need a unanimous jury to convict. But the way they split and the arguments that were made on each side paints a puzzling picture, which I’ll get to below. (The Hill)

The Supreme Court on Monday ruled that defendants in criminal trials can only be convicted by a unanimous jury, striking down a scheme that has been rejected by every state except one.

The court said in a divided opinion that the Constitution requires agreement among all members of a jury in order to impose a guilty verdict.

“Wherever we might look to determine what the term ‘trial by an impartial jury trial’ meant at the time of the Sixth Amendment’s adoption—whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable,” Justice Neil Gorsuch wrote in an opinion. “A jury must reach a unanimous verdict in order to convict.”

I want to be careful in parsing this question because whatever my personal opinions on the need for a unanimous verdict in criminal trials may be, the real question is the intent of the Founders when they wrote the Sixth Amendment. Unfortunately, they neglected to specify that detail. The amendment simply says you’re entitled to “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” But most of the states have since decided that verdicts needed to be unanimous anyway.

The split in this 6-3 decision was interesting. The majority decision, penned by Brett Kavanaugh, was joined (in various parts) by Ginsburg, Breyer, Sotomayor, Thomas and Gorsuch. Dissenting were Chief Justice Roberts, joined by Alito and Kagen. So this was far from your usual 5-4 conservatives versus liberals type of split.

The dissent, while bringing up additional factors, was primarily focused on precedent. Or at least that’s how Alito sounded in writing the dissent. He wrote, “Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn.”

The majority’s argument, on the other hand, invoked the perception of racism in allowing split decisions. Kavanaugh claimed that the original decisions of Oregon and Louisiana to allow split decisions were, in part, intended to make it “easier to convict black people and other ethnic minorities and to dilute their influence on juries.”

Neither of these opposing explanations makes a great deal of sense to me. While I understand that the court has long reflexively defended the concept of stare decisis, it’s not as if the court hasn’t reversed itself and charted a new course on multiple occasions. If a persuasive enough argument had been put forward, they could have gone the other way and allowed states to legalize split decisions in criminal trials if they wished. The previous SCOTUS decision allowing split decisions was rendered almost half a century ago.

As to the majority’s racism argument, surely they understand that it works both ways. The way it’s phrased by Kavanaugh, you can see how ten white people on a jury could convict an innocent black man over the objections of two black jurors. But it’s equally possible that two white jurors might, for example, try to block the conviction of a white cop charged with unlawfully killing a black suspect when the rest of the jurors are African-American. It can go either way.

This argument also assumes bad-faith jurors looking to game the system whether they believe the evidence presented made a compelling case or not. I’m not saying that jury nullification doesn’t happen. It clearly does at times, or at least that’s the public perception. But I don’t think we’re supposed to interpret the Constitution based on such an assumption.

Still, as flawed as our system may be at times, it’s the best we have to work with. It’s always struck me as odd that a majority can decide so many things in our system of government, but when deciding the fate of a person accused of a serious criminal offense, you need unanimous consent. Still, if we’re going to err on either the side of letting the guilty go free or seeing the innocent put behind bars, I suppose the former is the only moral path.

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John Stossel 1:00 PM | June 15, 2024