A Precedent Overturned Reveals a Supreme Court in Crisis. by Linda Greenhouse
Separate opinions in a case show nine justices pursuing agendas far removed from the dispute at hand.
'The country wasn’t exactly holding its breath for the Supreme Court’s decision this week that the Constitution requires juror unanimity for a felony conviction in state court. The case promised little change. Unanimity has long been understood as constitutionally required in federal court as a matter of the Sixth Amendment right to trial by jury.
The only outlier among the states was Oregon. Louisiana, where the case originated in an appeal brought by a man convicted of murder in 2016 by a 10-to-2 vote, changed its rule two years later to require unanimity going forward. Six Supreme Court justices agreed this week that contrary to the outcome of a 1972 case, there is not one rule for the federal courts and another for the states: Conviction only by a unanimous jury verdict is now the rule for both.
That sounds almost too straightforward to be very interesting. Even people with more than a passing interest in the Supreme Court may well have thought, “Well, then that’s that,” before moving on to other cases, other concerns.
That would have been a mistake. This decision, Ramos v. Louisiana, is in fact one of the most fascinating Supreme Court products I’ve seen in a long time, and one of the most revealing. Below the surface of its 6-to-3 outcome lies a maelstrom of clashing agendas having little to do with the question ostensibly at hand and a great deal to do with the court’s future. Peek under the hood and see a Supreme Court in crisis.
Consider that it took nearly seven months from the argument last October for the justices to come up with something they were willing to send out into the world: five separate opinions, a total of 83 pages, to answer the straightforward question presented by Evangelisto Ramos’s petition: “Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.” (“Incorporates” refers to the ongoing process of applying the guarantees of the Bill of Rights — which by their terms apply only to Congress — to the states.)
Simple as that question appeared to be, this case meant trouble at the court from the start. . .
That there was a struggle was hardly surprising, because the grant of review marked a sharp and unexplained break with the recent past. . .
So something changed between June 2018 and March 2019, when the court granted the Ramos case. I think the change is obvious: Justice Anthony Kennedy retired and Justice Brett Kavanaugh took his place. . .
Was it Justice Kavanaugh’s vote to hear the Ramos case that broke the logjam and enabled the court to grant review? We may never know. But from the multiple opinions, including his, it’s clear that what this case was really about was precedent: when to honor it, when to discard it and how to shape public perceptions of doing the latter. . .
At the beginning of this column, I referred to the Supreme Court “in crisis.” What stands revealed in this puzzling bundle of opinions is not so much a court as nine individuals in pursuit of agendas far removed from the controversy they undertook to resolve. Remarkably, all nine agreed that the Apodaca decision, the continued validity of which they had recklessly put in play, had been a failure. But the real failure lies not in what the Supreme Court did in 1972 but in what it did this week, in its inability to provide a coherent answer to the question it chose to ask.
An obituary appeared in The Times last week for a 95-year-old former college professor named Darius Swann. As a young African-American father whose 6-year-old son was barred by race from attending a nearby public elementary school in Charlotte, N.C., Mr. Swann was the lead plaintiff in a case that led to a 1971 Supreme Court decision that authorized busing as a permissible remedy for courts to use to desegregate local school systems.
I mention this because the decision, Swann v. Charlotte-Mecklenburg Board of Education, one of the most important rulings during the era of resistance that followed Brown v. Board of Education, was unanimous. . .
The decision wasn’t perfect, and neither was the court that produced it; Swann was a compromise that proved to contain the seeds of its subsequent erosion. But the point is that the justices of the Burger Court at least offered some clarity as they spoke to a moment when the eyes of the country were on the federal courts and on the schools that remained segregated half a generation after Brown.
I hadn’t thought of the Swann case for years until I read Mr. Swann’s obituary. It lingered in my mind as I picked up the Ramos decision. What was I expecting? Just some clarity, I suppose. And what are we left with? The same question swirling around our everyday lives now: What happens next?'
https://www.nytimes.com/2020/04/23/opinion/supreme-court-precedent.html?
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