The Supreme Court’s Decision Striking Down Split Jury Verdicts Is Weirder Than It Looks

The justices are shadowboxing over abortion, racism, and the battles to come.

An overhead view of a courtroom in session is seen, with the jury members' faces cut out. Two people sit on a table while a woman talks to the jury. A person stands behind her and near another woman at a desk.
Photo illustration by Slate. Photo by Comstock/iStock/Getty Images Plus.

The Supreme Court’s Monday decision in Ramos v. Louisiana is unalloyed good news: A majority held that the Constitution requires conviction by a unanimous jury in both state and federal court. From here on out, every juror must find a defendant guilty to convict him, meaning a single vote for acquittal will thwart a conviction. In Oregon and Louisiana, the last two states to allow split verdicts, nonunanimous juries were rooted in white supremacy and designed to discriminate against marginalized groups. Ramos will void thousands of unconstitutional convictions, and it corrects a grievous injustice too long tolerated by the court. So far, so good.

But scratch beneath this shiny surface and you will find that Ramos is a mess of epic proportions. Technically, on the big question, the court divided 6–3, seemingly in a rare cross-ideological consensus of liberal and conservative justices in the majority. On a slew of important side questions, however, the court splintered hopelessly: It split 3–1–1–1–3 on thorny disputes over precedent, constitutional interpretation, the Bill of Rights’ protections for noncitizens, and the contemporary relevance of a law’s racist roots. The justices used Ramos to shadowbox over long-running debates, including abortion, giving every court watcher some tea leaves to obsess over. In doing so, they proved once again that the Supreme Court has never been more divided—and that these simmering debates will soon rupture into full public view.

The first-order question in Ramos is an easy one: Must a jury vote unanimously to convict a defendant, whether he’s being tried in state or federal court? SCOTUS has long held that, in federal court, the Sixth Amendment compels unanimity. But what about in state court? Although most states follow the federal rule, Oregon allows convictions by a 10–2 vote, meaning a defendant will be found guilty even if one juror votes to acquit. Louisiana allowed 10–2 splits until voters approved an amendment to the state constitution abolishing the Jim Crow–era practice starting in January 2019. But nonunanimous convictions were still allowed for crimes committed before 2019.

The Supreme Court’s decision revolved around 1972’s Apodaca v. Oregon, a messy precedent that approved nonunanimous juries in state courts. The Apodaca court split 4–1–4: Four justices said unanimous verdicts are required in state and federal court, four said they’re required in neither, and one justice, Lewis Powell, said unanimity is required in federal court but not state court. Because it rested on the “narrowest grounds,” Powell’s opinion became the law of the land. Powell’s position was based on an idiosyncratic theory that liberties protected in the Bill of Rights may be weaker when applied to the states as opposed to the federal government. The 14th Amendment, he acknowledged, applies most of these liberties to the states—but gives states more flexibility to violate them. The court has since fully abandoned this theory, so it is pretty odd that Powell’s eccentric concurrence remained the law until Monday morning.

In Ramos, SCOTUS finally buried Apodaca for good. Justice Neil Gorsuch, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Brett Kavanaugh, held that a felony conviction requires unanimity in state court, formally abolishing Oregon’s scheme, voiding hundreds or perhaps thousands of convictions there as well as at least 44 convictions in Louisiana. Justice Clarence Thomas reached the same result through very different reasoning. Then the most ambitious crossover event in history got even weirder when Justice Samuel Alito dissented, joined by Chief Justice John Roberts and Justice Elena Kagan. Wait—Alito, Roberts, and Kagan?

It turns out that the justices could not resist transforming Ramos into yet another quarrel over stare decisis, or respect for precedent. Gorsuch, Ginsburg, and Breyer say Powell’s concurrence has no precedential force because it’s just one man’s opinion, based on a theory that’s no longer good law. Sotomayor and Kavanaugh seem to think it is real precedent but should still be overruled. Thomas never cared about precedent and still doesn’t. Meanwhile, Alito, Roberts, and Kagan accused the majority of cavalierly overturning an entrenched precedent with no plausible justification, subjecting Oregon and Louisiana to “a potential tsunami of litigation.”

This contretemps over precedent is really just another skirmish in the court’s endless war over abortion rights. The five conservative justices have made clear they don’t think the Constitution protects the right to terminate a pregnancy. The real question is whether any of them will still stand by the court’s abortion precedents out of a duty to stare decisis. Kagan, the court’s most faithful observer of stare decisis, joined Alito’s dissent because she has been hammering the conservatives for trashing precedent when it suits them. She doesn’t want to be a hypocrite and abandon her principles just because she prefers a certain outcome. If the conservative justices overturn Roe v. Wade, Kagan can pillory them for flouting a principle she holds dear.

Sotomayor, too, was frustrated by Gorsuch’s dismissive approach to precedent. She penned a brief concurrence declaring that stare decisis, while generally important, is “at its nadir” in criminal procedure cases that “implicate fundamental constitutional protections.” Kavanaugh, by contrast, wrote a cryptic concurrence setting out his own test for stare decisis that seems tailored to justify overturning Roe on the grounds that it is “grievously or egregiously wrong.”

But if Gorsuch, Sotomayor, and Kavanaugh disagree about a unified theory of stare decisis, they all agree on one thing: Oregon and Louisiana’s split verdict laws are rooted in racism, and that history matters. As all three justices note, Louisiana enacted its law as a Jim Crow measure to prevent one or two black jurors from having an impact on the verdict. Oregon also enacted its law during “the rise of the Ku Klux Klan” to dilute “the influence of racial, ethnic, and religious minorities.” Each justice asserted that these racist origins undermined Apodaca’s precedential value and gave the court another good reason to outlaw Louisiana and Oregon’s schemes.

These explorations of racist history sent Alito into a tizzy. “Too much public discourse today,” he huffed, “is sullied by ad hominem rhetoric, that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents. The majority regrettably succumbs to this trend.” Alito insisted that the majority’s recitation of this sordid history is irrelevant because Louisiana and Oregon later reenacted their split verdict laws, magically cleansing them of racism. “We should set an example of rational and civil discourse,” Alito concluded, “instead of contributing to the worst current trends.” It is difficult to understand why Kagan joined this portion of his dissent, since she is willing to pierce pretext and examine bigoted motives in other contexts.

Defending racism is usually Clarence Thomas’ job. But in Ramos, the justice was too busy promoting a pet project to engage with the racial element. For years, Thomas has argued for a narrower interpretation of noncitizens’ liberties. He believes the Constitution applies the Bill of Rights to “citizens,” not “persons,” giving states greater leeway to mistreat immigrants. Thomas reiterated this argument in Ramos—but nobody joined him, indicating a cross-ideological lack of enthusiasm for restricting noncitizens’ civil rights.

None of this ideological bickering between the justices changes the fact that, as of Monday, Oregon and Louisiana may no longer let split juries convict people. But the full scope of the court’s decision will remain unclear for some time. The obvious follow-up question is whether Ramos applies retroactively—that is, whether it nullifies verdicts handed down before Monday. Here’s the good news: The decision undoubtedly applies in cases still on “direct review,” meaning the defendant hasn’t yet exhausted all appeals. But what about everyone else? There’s a whole different set of rules that apply here, and the court will have to decide if they all get new trials in a future case. But Gorsuch hinted that they won’t, and Kavanaugh said it outright, raising the strong possibility that the countless defendants convicted by split juries who’ve already used up their appeals can’t cite Ramos to get a new trial.

Retroactivity, like precedent and racism and the privileges of citizenship, badly divides the Supreme Court. It is almost miraculous that, at the end of the day, a majority was able to come together and lay down a clear rule in Ramos given the justices’ many grievances with their colleagues’ jurisprudence. Nothing in the ruling tells us much about how the court will decide cases down the road, including blockbusters involving abortion and discrimination. It only reminds us that even when the justices agree on the big stuff, they are still sharpening their swords for the battles ahead.