Later On

A blog written for those whose interests more or less match mine.

A Precedent Overturned Reveals a Supreme Court in Crisis

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Linda Greenhouse writes in the NY Times:

The country wasn’t exactly holding its breath for the Supreme Court’s decision this week that the Constitution requires juror unanimity for a felony conviction in state court. The case promised little change. Unanimity has long been understood as constitutionally required in federal court as a matter of the Sixth Amendment right to trial by jury.

The only outlier among the states was Oregon. Louisiana, where the case originated in an appeal brought by a man convicted of murder in 2016 by a 10-to-2 vote, changed its rule two years later to require unanimity going forward. Six Supreme Court justices agreed this week that contrary to the outcome of a 1972 case, there is not one rule for the federal courts and another for the states: Conviction only by a unanimous jury verdict is now the rule for both.

That sounds almost too straightforward to be very interesting. Even people with more than a passing interest in the Supreme Court may well have thought, “Well, then that’s that,” before moving on to other cases, other concerns.

That would have been a mistake. This decision, Ramos v. Louisiana, is in fact one of the most fascinating Supreme Court products I’ve seen in a long time, and one of the most revealing. Below the surface of its 6-to-3 outcome lies a maelstrom of clashing agendas having little to do with the question ostensibly at hand and a great deal to do with the court’s future. Peek under the hood and see a Supreme Court in crisis.

Consider that it took nearly seven months from the argument last October for the justices to come up with something they were willing to send out into the world: five separate opinions, a total of 83 pages, to answer the straightforward question presented by Evangelisto Ramos’s petition: “Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.” (“Incorporates” refers to the ongoing process of applying the guarantees of the Bill of Rights — which by their terms apply only to Congress — to the states.)

Simple as that question appeared to be, this case meant trouble at the court from the start. The decision to grant review in the first place was a disputed one, or so we can infer from the fact that the justices considered Mr. Ramos’s petition at eight of their closed-door conferences, beginning in October 2018, before finally granting it in March of last year. Petitions are usually granted after one or two conferences, so such prolonged consideration indicates some kind of internal struggle as proponents search for the necessary four votes.

That there was a struggle was hardly surprising, because the grant of review marked a sharp and unexplained break with the recent past. On 10 previous occasions, including three times in the past three years, the court denied petitions from Louisiana and Oregon inmates appealing jury verdicts that were not unanimous. After Louisiana changed its law in 2018, leaving only Oregon, there would have seemed less reason to take up the issue of whether Apodaca v. Oregon, the 1972 ruling that let states keep their majority juries, should be overturned. In the most recent denial, in June 2018, the court turned down a petition filed by the same lawyer who represented Mr. Ramos. That petition, Magee v. Louisiana, presented precisely the same question, word for word. The court denied review after only one conference, with no noted dissent and without even requesting a response from the state.

So something changed between June 2018 and March 2019, when the court granted the Ramos case. I think the change is obvious: Justice Anthony Kennedy retired and Justice Brett Kavanaugh took his place.

I have no reason to think Justice Kavanaugh is particularly interested in jury unanimity. But I do remember his carefully chosen words to Senator Susan Collins of Maine, a Republican who supports abortion rights, words she found sufficiently reassuring to earn her vote for his bitterly contested confirmation. Roe v. Wade was “settled law,” he said, a statement of the obvious but sufficiently nuanced to take the relieved senator off the hook. Recalling that masterful locution, it comes as no surprise to find Justice Kavanaugh passionately interested in the nature and meaning of Supreme Court precedent. And on this court, in this case, he was not alone.

Was it Justice Kavanaugh’s vote to hear the Ramos case that broke the logjam and enabled the court to grant review? We may never know. But from the multiple opinions, including his, it’s clear that what this case was really about was precedent: when to honor it, when to discard it and how to shape public perceptions of doing the latter. Justice Kavanaugh’s 18-page concurring opinion, which no other justice joined, included a list of 30 of “the court’s most notable and consequential decisions” that overturned earlier rulings — a kind of “30 ways to leave your lover” inventory of decisions that occupied the ideological spectrum from Brown v. Board of Education to Citizens United.

“Indeed,” he observed, “in just the last few terms, every current member of this court has voted to overrule multiple constitutional precedents.” Hey, overturning precedent is so commonplace these days as to be virtually painless. Look, everyone does it. I can, too.

It was a noteworthy performance by the court’s junior justice, but not the most notable feature of the decision. The case left the court’s usual ideological alignment in shambles. The six justices who voted to require unanimous juries were, in addition to Justice Kavanaugh, . . .

Continue reading.

Things are breaking down…

Written by Leisureguy

23 April 2020 at 2:12 pm

Posted in Law

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