This was an intentional move to deny the rights of racial minorities. Louisiana’s Supreme Court recently admitted that “the nonunanimous jury verdict system in Louisiana was created for the invidious discriminatory purpose of minimizing or canceling out the voting power of black jurors and to deny African-Americans meaningful participation in the institution of jury service.”
Last week, the U.S. Supreme Court (SCOTUS) overturned Ramos’ nonunanimous conviction. Justice Gorsuch wrote for the majority. He began by examining British common law reaching back to the 14th century. He showed that through all of America’s history, in almost every jurisdiction, this standard has been consistent. “Trial by jury” includes a unanimous conviction, or it is not a jury trial at all.
Justice is not subject to majority opinion. It is known in the soul of every human being. So, the jury is not a democracy, but twelve independent people—each of whom has the solemn duty to convict only upon evidence “beyond a reasonable doubt.”
All nine justices agreed on this. So, why has it taken 122 years for Louisiana’s law to be overturned? The answer to that question is found in a strange Supreme Court decision that’s 48 years old.
In Apodaca v. Oregon (1972) the same activist court that handed down Roe v. Wade, the most divisive and poorly argued opinion since Dred Scott, also produced a tangled decision concerning a man convicted by mere majority.
Four justices on the 1972 Court wanted to overturn the nonunanimous jury laws as violations of the right to “trial by jury.” Four other justices argued that a jury trial “no longer” requires a unanimous verdict.
The tie breaker was Justice Powell. He agreed that a unanimous verdict is required at the federal level, but that the Fourteenth Amendment does not apply this provision of the Bill of Rights to every state. His strange opinion has stymied legal scholars for five decades.
Even though every justice condemned the Apodaca opinion, only six of the nine were willing to overturn it. The doctrine of stare decisis (“let the decision stand”) was the central issue.
Justices Roberts, Alito and Kagan were simply unable to bring themselves to overturn Apodaca’s precedent—no matter how obviously wrong it was. Gorsuch, however, wrote, “stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.” How can the Court ever correct any mistake if stare decisis makes every past opinion untouchable?
Gorsuch concludes, “Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”
Justice Clarence Thomas concurred with the majority’s judgment but dissented from its reasoning. For him, stare decisis, should not be applied to Apodaca’s tortured opinion, but to the Court’s unanimous and repeated definition of “trial by jury.” He reasons that since SCOTUS has ruled repeatedly for 233 years that a unanimous verdict is required for conviction, there is no reason to waste time by parsing the phrase, “trial by jury.”
His point is to correct a misunderstanding of stare decisis that, “does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law.”
The second point of Thomas’ opinion is to explain that the real power of the Fourteenth Amendment is not the “Due Process Clause,” but the “Privileges or Immunities Clause.” He argues, “a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property,” does not adequately protect the rights of citizens.
The Privileges and Immunities Clause is much stronger than the right of due process. It guarantees, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities [i.e. rights] of citizens of the United States.” He argues that the Court has played a shell game of finding rights under “Due Process,” which are properly grounded in every citizen’s “Privileges and Immunities.”
When “Privileges and Immunities” are ignored and replaced by “Due Process” citizen are robbed of constitutional rights. This erroneous theory, argues Thomas, lies behind “many incorrect decisions,” including, “Obergefell v. Hodges, (2015); Roe v. Wade, (1973); Dred Scott v. Sandford, (1857).”
Justice Thomas deserves high praise for pressing his fellow justices to give attention to the full rights of American citizens.
Also published in the Wyoming Tribune Eagle on May 1, 2020.
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