The U.S. Supreme Court today over-ruled, 6-3, its really bad 1972 holding that rights, like the 6th amendment fair trial requirements, were not necessarily incorporated into the states by the 14th. Oregon and Louisiana, astoundingly, did not require unanimous jury verdicts of guilty in criminal cases, allowing 10-2 convictions. In Louisiana, the anomaly was an 1898 relic of the Jim Crow era; I have no idea what Oregon’s excuse was.
Louisianans voted in 2018 to do away with the practice, passing an amendment to the state constitution requiring unanimous verdicts going forward. But up to a hundred prisoners, like Evangelisto Ramos who was serving a life prison sentence after being convicted of murder in a 10-2 jury vote, will get new trials because their convictions came under the old, unconstitutional law and their appeals aren’t exhausted. The case is Louisiana v. Ramos.
Two aspects of the decision are especially noteworthy, other than the fact that its seems obviously correct.
First, it overturned a precedent. The doctrine of stare decisis does not mean that the Court should never overrule erroneous precedents, but that there should be an automatic reluctance to do so without overwhelming reasons. As the majority opinion pointed out, every justice now on the current court has voted in the past to overrule multiple constitutional precedents. That issue may explain the second noteworthy aspect of the case: the unusual philosophical split.
Justice Gorsuch, who wrote the majority opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh and Clarence Thomas Justice Samuel Alito dissented and was joined by Chief Justice John Roberts and Justice Elena Kagan. So much for the insulting rhetoric from both parties (and many journalists) that reduced the court to partisan voting blocks.The decision would have to be termed a liberal one, as it is conservatives who generally support federalism as well as adherence to stare decisus. So how did Clarence Thomas, among others, end up in the majority while Elena Kagan voted conservatives Roberts and Alito?
Theories abound. One can concoct motives with sinister portent: maybe Gorsuch, Thomas and Kavanaugh voted to reverse precedent in order to weaken the stare decisus doctrine in preparation for an attack on Roe v. Wade. maybe Justice Kagan was willing to let a hundred unjustly convicted Louisiana prisoners rot in prison in order to protect Roe. But abortion advocates should take solace in the fact that Justice Alito’s dissent includes a ringing defense of stare decisus. His vote would be necessary, presumably, to create any 5-4 decision overturning Roe.
The undeniable fact, however, is that this was the right call, and one that reverses a wrong of long-standing.
You should read the opinions though, and they are here.
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Sources: NOLA, Res Ipsa Loquitur
Ethics Alarms 
The thing that bothers me about this decision is that it gives lawyers too much leeway in disqualifying jurors who might vote to convict along with picking jurors who will ignore relevant evidence because of their own personal histories. I think of the first OJ case where many jurors who viewed the matter as payback.
Too many black women, wrong venue, terrible prosecution.
But lawyers in 48 states and the district have unanimous jury requirements, and there are convictions frequently.
Jack: The U.S. Supreme Court today over-ruled, 6-3, its really bad 1972 holding that all First Amendment rights were not necessarily incorporated into the states by the 14th.
I think you meant Sixth Amendment.
-Jut
Not only that, I thought that’s what I had typed. Sometimes its as if I type these things in a trance. I go back and there are words I don’t even remember thinking. I’ve been writing so much about the First lately that I guess it was a default.
My take regarding Thomas is that while he is careful to not quickly jump to race, he’s not totally blind to racial inequality. Louisiana created this law because the wrong black person was aquitted. (Oregon did the same because the wrong jews were aquitted.) Many of the victims of Louisiana to this day are black.
I’m liking the trend of the court regarding the 6th. I’m all for the republican justices regarding the reduction in judicial activism. After all, tossing Roe v. Wade just puts it back where it belongs, in the legislative branch. My fear of republican justices is they may roll back the 4th, 5th and 6th, but this court does not appear to be inclined that way.
Who would have ever thought that a strong interpretation of the 1st, 4th, 5th and 6th is for individual liberty over government power would ever become a right wing position?
I think you’re right about Justice Thomas.
I read Justice Thomas’s concurring opinion explaining why Apodaca was demonstrably wrong.
In Gamble v. United States, he explained that her would only overrule precedent if it were demonstrably wrong. In his concurring opinion in this case, he cited many authorities dating back from both colonial times and the Reconstruction era.
I have a general unease with the idea of a justice voting one way on an unrelated opinion in order to prepare an environment for a future opinion on another controversial case to come.
I guess it’s just an additional variable or lever in the machine of government–like the filibuster.
Personally, I don’t see something a significant as overturning Roe possible. It seems to be only a lever used that mobilizes a base. The root of the Kavanaugh train wreck seemed more motivated by fears that it was necessary to protect Roe than anything else, but the threat of the “religious right” against this decision isn’t nearly as strong as it was during the televangelist era of the 80’s.