Sam Berten, Associate Member, University of Cincinnati Law Review
Justices on the Supreme Court are protectors of precedent, and experts in the law. However, Justices are also strategic in their decisions and opinions because they are aware of the effect one decision can have on other decisions, and the importance of integrity.
In Ramos v. Louisiana, the Supreme Court held that the Sixth Amendment requires that a jury find a criminal defendant guilty by a unanimous verdict. Justice Kagan dissented in Ramos, which at first could be confusing because Kagan’s liberal colleagues largely agreed with the majority opinion written by Justice Gorsuch. However, a more detailed analysis of Justice Kagan’s history on the Supreme Court shows that Ramos is the next in a line of key cases wherein Justice Kagan has solidified her position as a protector of precedent on the Court. Justice Kagan is likely keenly focused on reiterating the importance of precedent to protect Roe v. Wade, affirmative action, and other key decisions, which may explain Kagan’s dissent in Ramos.
In 1972, the Court in a plurality decision found in Apodaca v. Oregon that the “Sixth Amendment does not require unanimous jury verdicts in state criminal convictions.” Four Justices dissented in Apodaca – Stewart, Brennan, Marshall, and Douglas – believing that the Sixth Amendment guaranteed unanimity as one of the core rights of a jury trial. On the other hand, in the plurality opinion, Justices White, Burger, Blackmun, and Rehnquist held that the Sixth Amendment did not guarantee unanimity. Justice Powell concurred with the plurality but separately found that “the Sixth Amendment does require a unanimous verdict in criminal cases, but only in federal court.”
Despite the confusion on the guarantees of the Sixth Amendment, Apodaca remained good law for almost fifty years. Only two states, Louisiana and Oregon, allowed convictions by non-unanimous verdicts, but both states have expressed a change of tactic. Louisiana has since abolished non-unanimous verdicts and “Oregon . . . was considering doing the same until the Supreme Court took up the case.”
On April 20, 2020, the Supreme Court decided Ramos v. Louisiana, and resolved the remaining issue after Apodaca of whether the Sixth Amendment requires a unanimous jury verdict for a criminal conviction for a serious crime. The Court held, in a fractured opinion, that the Sixth Amendment requires a unanimous jury verdict to convict a defendant of a serious offense.
Justice Gorsuch wrote the principal opinion, which Justices Breyer and Ginsburg joined with respect to Parts II-B, IV-A, IV-B-2, and V. Justices Sotomayor and Kavanaugh “joined most of Gorsuch’s opinion but rejected some key aspects of it.” Meanwhile, Justice Thomas concurred but declined to join any of Gorsuch’s opinion. Finally, Justice Alito wrote a dissenting opinion which Chief Justice Roberts joined and Justice Kagan joined except for Part III-D. All in all, the Court issued five opinions on Ramos, but the principal opinion and the dissent will be the focus of this article.
Justice Gorsuch wrote that trial by an impartial jury, no matter where you look to determine the phrase’s meaning – “whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward,” – the answer was the same: “[a] jury must reach a unanimous verdict in order to convict.” When the Sixth Amendment was ratified, the common law required jury unanimity in criminal cases, continuing that practice for close to 400 years with only a few exceptions. Gorsuch explained the absence of explicit unanimity in the Sixth Amendment by stating that the right of unanimity was “so plainly included in the promise of a ‘trial by an impartial jury’ that the [Framers] considered the language surplusage.”
Justice Gorsuch then in Part IV-A argued that Apodaca was never binding precedent because Justice Powell agreed that the Sixth Amendment required unanimity but only in federal court, which a majority of the court rejected. Justice Gorsuch claimed that accepting Justice Powell’s reasoning and Apodaca as precedential would lead to the conclusion that “a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected.” Justices Ginsburg and Breyer agreed with this portion of Justice Gorsuch’s reasoning while Justices Sotomayor and Kavanaugh did not.
The Court has established several factors when analyzing precedent: “(1) the quality of the decisions’ reasoning; (2) its consistency with related decisions; (3) legal developments since the decision; and (4) reliance on the decision.” Applying these four factors to Apodaca, all five Justices in the majority opinion concluded that Apodaca was not binding precedent.
The dissent, written by Justice Alito, and joined by Chief Justice Roberts and Justice Kagan (except for part III-D), stressed the importance of reliance interests which required adherence to Apodaca. Justice Alito then discussed the myriad of issues that might arise with respect to retrying criminal defendants, habeas petitions, and the fact that the Court repeatedly denied cert for petitions brought by inmates in Louisiana and Oregon, which made Louisiana and Oregon conclude that they were not acting improperly by allowing non-unanimous verdicts.
Justice Elena Kagan was nominated by President Obama in May, 2010, and was confirmed by the Senate in August, 2010. Because of Justice Kagan’s liberal leanings, Kagan’s choice to dissent from a majority opinion focusing on justice within the criminal justice system may seem strange at first. In fact, many were “disappointed, baffled, angry, skeptical, and saddened.” However, Kagan has likely positioned herself as a protector of precedent as part of a strategic, long-term approach to protect Roe v. Wade. And precedent is what Ramos is truly about, “when to honor it, when to discard it and how to shape public perceptions of doing the latter.”
On June 22, 2015, Kagan wrote the majority opinion in Kimble v. Marvel Entertainment, LLC, which was a patent dispute. Kagan wrote that “[w]hat we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly.” Kagan then quoted Spider-Man, stating, “(‘[i]n this world, with great power there must also come – great responsibility’). Finding many reasons for staying the stare decisis course and no ‘special justification’ for departing from it, we decline Kimble’s invitation to overrule Brulotte.”
On June 21, 2019, Kagan wrote in her dissent to Knick v. Township of Scott, Pennsylvania, et al., that Knick “smashe[d] a hundred-plus years of legal rulings to smithereens.” Knick was a case about a property owner fighting the government in a constitutional “takings” claim. However, Kagan was likely not focusing just on the issues at hand in Knick. Kagan indicated worry that the “conservative majority may be similarly dismissive of precedent in other areas. Those areas could include access to abortion, affirmative action and LGBT[sic] rights – all issues making their way up to the high court.”
Thus, Justice Kagan’s dissent in Ramos is likely a reiteration of Kagan’s position as “the Court’s leading proponent of respect for precedent.” Since “Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Elena Kagan — dissented [in Ramos], not necessarily because they thought the Constitution permits non-unanimous juries but because they thought the 1972 case should not be so lightly overruled.” Justice Kagan is likely preparing for the day when a case reaches the Court that challenges Roe v. Wade. Indeed, “[f]or Kagan, who clearly sees the writing on the wall not just for Roe but for other rulings as well, the importance of adhering to precedent has been a continuing theme. The more she can get conservative colleagues on the record resisting overturning cases, and the more she demonstrates her own willingness to stick with cases she dislikes, the stronger her hand down the road.”
Therefore, Kagan’s choice to consistently be the resounding voice of respect for precedent may allow Kagan, down the line, to insist her fellow justices respect the precedent established in Roe. “She is playing the long game in two related ways: establishing herself as the court’s fiercest defender of precedent and sacrificing ideological purity in favor of compromise with her conservative colleagues. But that is no guarantee that she will prevail, or that any of her compromises will actually pay off.”
Thus, Justice Kagan is likely trying to build a record to encourage her conservative colleagues to respect precedent down the road when it is time to decide on an abortion issue. And sooner rather than later, we will know if Kagan’s strategy succeeded. On March 4, 2020, the Court heard oral arguments for June Medical Services LLC v. Russo, which asks whether Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with Whole Woman’s Health v. Hellerstedt, which is binding precedent.
If Justice Kagan’s approach wins the day, her protection of precedent during her tenure on the Court will encourage her conservative colleagues to adhere to the binding precedent established in Roe and Whole Woman’s Health. Thus, Ramos was likely yet another example of Justice Kagan reiterating the importance of precedent, while keenly aware of the threat to Roe and other key decisions if the Court turns away from stare decisis.
It is surprising to see a liberal justice dissenting from a case protecting the rights of criminals and dissenting away from her fellow liberal justices. Thus, Justice Kagan’s dissent in Ramos may be initially confusing. However, understanding Justice Kagan’s perspective and position on the Court allows a deeper analysis of Kagan’s alliance with Justice Alito in Ramos. For Justice Kagan, Ramos is likely another opportunity to highlight to the Court the importance of precedent, and to signal to her conservative colleagues that she is able to join an opinion that diverts from that of the liberal Justices in order to protect precedent.
Justice Kagan is approaching this case, and likely all the cases that appear before the Court, with a keen eye for stare decisis and precedent in order to later use those cases to demonstrate to the conservative justices on the Court that cases such as Roe cannot be overturned lightly. June Medical Services LLC v. Russo will presumably be a key case that will likely show whether Justice Kagan’s approach over her tenure has paid off, and whether her stead as protector of precedent can convince other justices to be similarly concerned.
 “So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.” Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020).
 Tadhg A.J. Dooley & David Roth, Supreme Court Update: Ramos v. Louisiana (No. 18-5924), Atlantic Richfield v. Christian (No. 17-1498), Thryv, Inc. v. Click-to-Call Technologies (No. 18-916), The National Law Review (Apr. 27, 2020), https://www.natlawreview.com/article/supreme-court-update-ramos-v-louisiana-no-18-5924-atlantic-richfield-v-christian-no.
 Id.; Ramos v. Louisiana, 140 S. Ct. 1390, 1393 (2020).
 Dooley & Roth, supra note 2.
 Id.; Ramos, 140 S. Ct. at 1393.
 Id. at 1395.
 Dooley & Roth, supra note 2.; Ramos, 140 S. Ct. at 1395.
 Dooley & Roth, supra note 2: “a common-law requirement of jury unanimity in criminal cases had existed (with a few sporadic interruptions) for about 400 years.”
 Dooley & Roth, supra note 2.; Ramos, 140 S. Ct. at 1400.
 Dooley & Roth, supra note 2; Ramos, 140 S. Ct. at 1402.
 Dooley & Roth, supra note 2; Ramos, 140 S. Ct. at 1405.
 CNN, Elena Kagan Fast Facts, CNN (Apr. 22, 2020), https://www.cnn.com/2013/02/19/us/elena-kagan-fast-facts/index.html.
 Mark Joseph Stein, Everyone is Mad at Elena Kagan, The Slate (Apr. 22, 2020), https://slate.com/news-and-politics/2020/04/elena-kagan-supreme-court-conservatives-precedent.html.
 Richard Wolf, Casting aside its precedents, Supreme Court moves inexorably toward those on abortion rights, USA Today (Apr. 27, 2020), https://www.usatoday.com/story/news/politics/2020/04/24/abortion-supreme-court-precedent-roe-v-wade/3002575001/.
 Linda Greenhouse, A Precedent Overturned Reveals a Supreme Court in Crisis, The New York Times (Apr. 23, 2020), https://www.nytimes.com/2020/04/23/opinion/supreme-court-precedent.html.
 Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2415 (2015).
 Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2183 (2019).
 Ariane de Vogue, Elena Kagan becomes latest liberal justice to sound alarm on precedent, CNN (Jun. 21, 2019), https://www.cnn.com/2019/06/21/politics/kagan-supreme-court-precedent-warning/index.html.
 The Supreme Court Rules from Home, Michael Davis Barbaro & Adam Davis Liptak, The Daily, The New York Times (M.J. Davis Lin & Lisa Davis Chow eds., Apr. 21, 2020), https://www.nytimes.com/2020/04/21/podcasts/the-daily/supreme-court-coronavirus.html.
 Ruth Marcus, Why a case about jury verdicts could spell trouble for Roe v. Wade, The Washington Post (Apr. 24, 2020), https://www.washingtonpost.com/opinions/why-a-case-about-jury-verdicts-could-spell-trouble-for-roe-v-wade/2020/04/24/2a3e2072-8660-11ea-878a-86477a724bdb_story.html. [emphasis added].
 Id.; additionally, “it is impossible to read Kavanaugh’s concurrence without trying to discern what it foretells about his approach to Roe, and, if you support abortion rights, without apprehension. Kavanaugh pointedly noted that ‘in just the last few terms, every current member of this court has voted to overrule multiple constitutional precedents.’ Indeed, he added, ‘some of the court’s most notable and consequential decisions have entailed overruling precedent,’ citing 30 cases to prove the point. Kavanaugh then sketched out a three-part approach to deciding when a case should be overruled: First, ‘is the prior decision not just wrong, but grievously or egregiously wrong,’ including ‘the quality of the precedent’s reasoning.’ Second, ‘has the prior decision caused significant negative jurisprudential or real-world consequences,’ including ‘real-world effects on the citizenry.’ Third, ‘would overruling the prior decision unduly upset reliance interests’— how much people have based their arrangements on it and how long it has been in place. It is not hard to imagine that Kavanaugh, if called on to weigh the future of Roe, would find the first two criteria — egregiously wrong and causing significant negative consequences — easily satisfied. Must all three be present for a case to be overruled? On that he is not clear.”
 Stein, supra note 26; additionally, “[i]t is notable, though, that Kagan’s vote was not decisive in any of these decisions. In most cases, Kagan simply assented to precedent that, whatever its merits, is now firmly entrenched in the law.”