Supreme Court holds non-unanimous verdicts in criminal cases unconstitutional – but that’s not the interesting part.

We’ve never blogged about a U.S. Supreme Court decision, though I did mention Feres v. United States in a post about recent legislation that created a long-overdue exception to the Feres doctrine – namely, allowing members of the armed forces to seek redress under the Federal Tort Claims Act (FTCA) for negligent medical treatment at a military facility.  There are two reasons for this.  First, there have been no Supreme Court cases of any relevance to our business since we started blogging about a year and a half ago – indeed, there hasn’t been such a case since Daubert came down in 1993, and it’s unlikely the Court will ever again take up a case in which expert testimony plays an important role.  Second, and perhaps more to the point, every Supreme Court case of general interest is analyzed and commented upon in a wide variety of publications, and unless a case involves our particular field of expertise (namely, experts and expert testimony), we’re not going to have anything original to say about it. 

That said, I’m breaking our precedent this week because of the extraordinarily interesting way in which the Court overruled a 48-year-old precedent in Ramos v. Louisiana, (4/20/2020).  My purpose, however, is not to present our thoughts on the case (“we’re not going to have anything original to say”), but to draw our readers’ attention to three useful discussions (and there are no doubt several more) of what makes it so interesting.  Here are the excellent case summaries with which two very different publications began their analyses: 

The Supreme Court’s decision in Ramos v. Louisiana ruled that the Constitution requires a unanimous jury verdict to convict anyone accused of a serious crime.  Most Americans probably thought this was already the law. It was generally accepted as the law when the Bill of Rights was written, and for a century thereafter.  But two states, Louisiana and Oregon, have laws allowing convictions on a 10–2 vote, which survived a challenge in 1972 (Louisiana repealed its law in 2018 for new prosecutions).  The Court’s 6–3 decision was written by Justice Gorsuch, over a dissent by Justice Alito that was joined by Chief Justice Roberts and Justice Kagan.  Justices Thomas, Sotomayor, and Kavanaugh all wrote separate opinions offering different reasons for joining the Court’s ruling.  The very non-unanimous Court reveals some fascinating divides and may give us a preview of the Court’s thinking about bigger questions looming down the road.  The various Ramos opinions covered three heated battlegrounds in constitutional law: (1) whether to read the Constitution to mean what it meant when it was written; (2) when and how to overturn existing precedents; and (3) whether neutral, non-discriminatory laws should be invalidated if they were written for a discriminatory purpose….Looming behind those debates about judicial methods are differing views of how to resolve big-ticket questions that will come before the Court in the future, some of them quite soon.

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…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….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.

Both pieces are well worth reading in full, as is  For straight analysis of the case (no commentary), with clear summaries of each of the five separate opinions, SCOTUSblog is, as always, unmatched – see



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