Ramos v. Louisiana and the Jim Crow Roots of Split-Jury Convictions

Ten to two. That was the vote of the Louisiana jury that convicted Evangelisto Ramos of a serious crime. In nearly every other state in the Union, and in every federal court, two jurors saying "not guilty" would have meant no conviction. In Louisiana it meant a sentence of life in prison without the possibility of parole.

The Supreme Court took the case, and in 2020 it held that the Sixth Amendment requires a unanimous jury for a serious crime in state court as well as in federal court. The decision ended a practice that Louisiana had adopted, by the plain testimony of its own constitutional convention, to dilute the power of Black jurors. It is a case where the text, the history and the justice of the matter all point the same way, and it is a good one for conservatives to know, because it shows originalism doing something its critics say it cannot do.

The text and the tradition

Start with the Sixth Amendment. It says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." Notice the phrase "an impartial jury." The text does not say "twelve" and does not say "unanimous." So the question is what the words meant when they were written: what was a "jury" to the generation that adopted the Bill of Rights?

The answer is in the common law the Founders inherited. By the time of the American Revolution, the English jury had twelve members, and a verdict had to be unanimous. William Blackstone, whose Commentaries on the Laws of England were the standard legal text for the founding generation, wrote that the truth of every accusation must be confirmed by "the unanimous suffrage of twelve of his equals and neighbors." Unanimity was not a rule of convenience. It was part of what made the jury a check on the government: the state had to persuade every one of twelve ordinary people, and any one of them could refuse.

That is the constitutional point, and I will press it. The jury is not merely a way to decide cases. It is one of the Constitution's structural protections. Article III, Section 2 says that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." The Declaration of Independence lists among its grievances against the King that he had deprived the colonists "in many cases, of the benefits of Trial by Jury." The founders took the jury as a bulwark of liberty and they meant the common-law jury, the one they knew.

How Louisiana got its rule

The Sixth Amendment did not bind the states until the Supreme Court applied the jury right to them through the Fourteenth Amendment in Duncan v. Louisiana (1968). Before that, a state could decide its own rules. Many states followed the common-law rule of unanimity. A few departed from it.

Louisiana's departure came in 1898. The state held a constitutional convention, and one of the things the delegates did was to allow convictions by the vote of nine of twelve jurors. The delegates were open about the purpose. The Reconstruction era had put Black citizens on juries in the South, and the Fifteenth Amendment had given Black men the vote. The convention was called to find ways to undo the effect, and, according to one committee chairman, the convention's avowed purpose was to "establish the supremacy of the white race." Justice Gorsuch, writing for the Court in Ramos, quoted that language.

The route to the purpose was practical. If a Black juror sat on a panel and a conviction needed only nine of twelve votes, the Black juror's vote could simply be ignored. Unanimity gave every juror a veto. A majority rule took it away. Together with poll taxes, literacy tests and the other devices of the era, the non-unanimous jury was a tool for keeping Black Louisianans out of the real power of the courts.

Oregon adopted a similar rule in the 1930s. The Court's opinion traced the Oregon rule to the rise of the Ku Klux Klan and to efforts to dilute the influence of racial, ethnic and religious minorities on Oregon juries.

Louisiana revised the rule in later years, and by the time of the Ramos trial it was a ten-of-twelve requirement. The state argued that the modern version was not tainted by the history. The Court did not think the history could be so easily set aside. But the Court's holding did not rest on the history of racism alone. It rested on the meaning of the Sixth Amendment.

Apodaca and its fractured vote

The Court had, in fact, looked at the question before, and the earlier decision is the one that made Ramos necessary. In Apodaca v. Oregon (1972), the Court upheld Oregon's non-unanimous jury rule, in a decision that is nearly impossible to describe cleanly. Four justices, in an opinion by Justice White, said that the Sixth Amendment's jury guarantee did not require unanimity, because the purpose of the jury, in their view, was to provide a commonsense judgment, and a nine-to-three or ten-to-two vote served that function. Four justices dissented and said that unanimity was required. That left Justice Lewis Powell, who agreed with the dissenters that the Sixth Amendment required unanimity in federal trials, but concluded that the Fourteenth Amendment did not apply the full requirement to the states. His view, called "dual-track incorporation," held that the same amendment would mean different things in state and federal courts.

So the result in Apodaca was a one-justice outcome that no other justice supported. Four said unanimity was not required at all. Four said it was required everywhere. One said it was required in federal court but not in state court. The case came out in favor of Oregon, and for almost half a century, state courts in Louisiana and Oregon convicted people by split verdicts under its authority. A companion case, Johnson v. Louisiana, upheld Louisiana's rule under the Due Process Clause.

Why it mattered: a holding that no majority of justices endorsed was applied for decades as binding law. The mistake lay in the arithmetic of the fractured vote. In Ramos, the Court treated a precedent resting on one justice's solo theory as entitled to little weight.

The holding in Ramos

Ramos v. Louisiana was decided on April 20, 2020. The Court held that the Sixth Amendment's guarantee of a unanimous verdict for serious offenses applies to the states through the Fourteenth Amendment. The vote was six to three on the judgment, and the opinions were many.

Justice Gorsuch wrote the opinion of the Court. His reasoning had a few parts.

1. The text and the history. The Sixth Amendment's "impartial jury" meant the common-law jury, and the common-law jury required unanimity. This was the settled understanding in the founding era and for generations afterward. The Court cited Blackstone, early American state constitutions and decisions, and the writings of the founding generation.
2. The incorporation point. Having decided that the Sixth Amendment required unanimity, the Court noted that the rights in the Bill of Rights that apply to the states do so with the same content, not in a "watered-down" version. A right incorporated through the Fourteenth Amendment is the same right. That ended Powell's dual-track theory.
3. The precedent point. Apodaca was not a precedent in the usual sense, because no opinion in it had the support of a majority. The Court was not overruling a settled holding so much as correcting a one-vote anomaly.
4. The history of the rule. The Court described the racist origins of the Louisiana and Oregon rules, and said that the rules had been adopted for that purpose. It did not rest the decision on that history, but it declined to treat the history as irrelevant when assessing whether to leave a rule in place.

Justice Kavanaugh joined most of the opinion and wrote a concurrence that has become important in its own right. It lays out a way to decide whether to overrule a precedent, in three questions. Is the prior decision not just wrong but "grievously or egregiously wrong"? Has it caused significant negative jurisprudential or real-world consequences? Would overruling it unduly upset legitimate reliance interests? Applying them, he concluded that Apodaca failed on all three. His concurrence is a useful guide for anyone who wants to evaluate overrulings in other cases, and it connects to the discussion at Stare Decisis Explained, and the Factors Justices Weigh Before Overruling.

Justice Thomas concurred in the judgment only. He would have rooted the result in the Privileges or Immunities Clause of the Fourteenth Amendment rather than the Due Process Clause, an originalist argument that the Court's incorporation doctrine had been built on the wrong provision.

Justice Alito dissented, joined by Chief Justice Roberts and, in most of it, by Justice Kagan. His dissent made three points. First, he said that the Court was too quick to treat a long-standing decision as illegitimate, and that the factors for overruling a precedent favored keeping Apodaca. Second, he stressed the reliance interest: many convictions had been obtained under the non-unanimous rule, and the decision would create enormous burdens for the courts. Third, he argued that the racist origin of the original rule was not the right way to assess the modern version, which Louisiana had reenacted in a later revision. He did not defend the history. He questioned whether it should drive the result.

What followed

Louisiana's voters, in a 2018 ballot measure, had already amended the state constitution to bar non-unanimous verdicts, but only going forward, so the old rule still governed crimes committed before 2019. Oregon was the only other state with such a rule. After Ramos, both states had to apply unanimity.

The next question was whether the new rule applied to people already convicted. In Edwards v. Vannoy (2021), the Court held, six to three, that Ramos did not apply retroactively to cases that had already become final. A person convicted by a split jury whose conviction had already been upheld on appeal could not use Ramos in a later collateral challenge. That left a number of prisoners in both states convicted by votes that would no longer be permitted. The legislature of each state has the power to address that, and it is a question for the democratic process, not a failure of the principle.

The originalist case, stated as an argument

Let me state the originalist case for Ramos as a sequence of numbered points, because it is a clean one.

1. The text points to the common-law jury. The Sixth Amendment guarantees "an impartial jury," and Article III says that trials "shall be by Jury." Both phrases refer to an institution the Founders knew.
2. The common-law jury was unanimous. Blackstone says so, and the practice in England and the colonies agreed. A jury that could convict over the objection of two or three members was not what the Founders meant by the word.
3. The purpose of the unanimity rule was a check on government. The jury stands between the state and the accused. To convict, the government has to persuade everyone in the room. That is a feature, not a bug, and the Founders considered the check worth the cost of the occasional hung jury.
4. The Bill of Rights, once incorporated, means the same thing against the states. There is no half-version of a right. The Court had said so in other incorporation cases, and Ramos followed.
5. The history of the Louisiana rule confirms the reading. A rule adopted to suppress the influence of Black jurors is the opposite of a rule that preserves the jury as a check. The racist purpose is not a reason to ignore the text. It is a reason to be unsurprised that those who wanted to evade the text's protection chose to evade it here.

Notice what this case shows about the method. Critics of originalism say it is a cover for conservative results, and the most common version of the claim is that it never helps criminal defendants or racial minorities. Ramos is a counterexample. The result favored a criminal defendant and corrected a rule with a Jim Crow origin, and it was reached by textual and historical reasoning, in an opinion by a justice appointed by a Republican President and joined by justices of both ideological camps. For the broader argument about method, see Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen and Seven Myths About the Roberts Court, Tested Against Its Own Opinions, which uses Ramos to test the claim that the Court votes in blocs.

The strongest objection

The objection I find most serious is practical. Unanimity has costs. One stubborn or biased juror can cause a mistrial, and the state must try the case again, sometimes more than once. In some cases a holdout juror acts out of bad faith and not out of reasonable doubt. A rule that allowed convictions by a supermajority would speed up trials, reduce costs and prevent some obstruction, and it is in use in many countries with strong legal systems. Why should the American Constitution lock it out of the states?

The answer, in two parts. First, the Constitution is not a menu of efficient options. It records a judgment, made by people who knew the cost, that a requirement of unanimity is worth it. The framers of the Sixth Amendment knew about hung juries. They kept the rule anyway, because the risk of a wrongful conviction was the greater evil. Second, the argument about efficiency belongs in the amendment process, not the courtroom. If the people believe that the Sixth Amendment's unanimity requirement is outdated, Article V gives them the way to change it. What a state may not do is quietly substitute its own preference for the Constitution's text because the cost seems too high.

There is also a point about legitimacy. A verdict that rests on twelve minds in agreement carries a moral force that a verdict of ten does not. When the state takes a man's liberty, or his life, it ought to be able to say that every juror was convinced. That is the pull of the rule, and it is the reason the jury has endured. For why serving on one is a civic duty worth taking seriously, see Jury Duty Is the Rule of Law in Your Own Town, So Answer the Summons.

The lesson about justice and the Founding

There is a larger lesson in how long this took. The Constitution protected the right to a unanimous jury from 1791, and the Fourteenth Amendment brought the states within the Bill of Rights in the decades after 1868. Yet Louisiana's rule survived until 2018, and Oregon's until 2020. That is a long time for a constitutional wrong to persist. It persisted partly because the Court, in a muddled opinion, gave it cover, and partly because the people it affected had the least power to complain.

A conservative should take two things from it. The first is that the text is the best protection, and that a Court that reads it faithfully serves the vulnerable better than one that substitutes theories. The second is that the correction of an old wrong is not an attack on the Founders. It is the completion of what they began. Justice Harlan's lone dissent in Plessy, described in Justice Harlan's Lone Dissent in Plessy and the Colorblind Constitution, and the story of how an originalist can defend Brown, set out in Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case, belong to the same tradition: the Constitution read for what it says, against those who would read it for what they would like.

The case in brief

1. The Sixth Amendment guarantees "an impartial jury," which at the Founding meant the common-law jury of twelve, and Blackstone and the early practice show it required unanimity.
2. Louisiana adopted non-unanimous verdicts in its 1898 convention to dilute the votes of Black jurors, and Oregon adopted its rule in the 1930s in a similar climate.
3. Apodaca v. Oregon (1972) had upheld the rule on a fractured vote in which no single theory commanded five justices.
4. In Ramos (2020) the Court held that a unanimous verdict is required in state trials, with Gorsuch writing, Kavanaugh setting out a stare decisis framework, Thomas looking to the Privileges or Immunities Clause, and Alito dissenting on reliance.
5. The originalist case shows the method protecting a criminal defendant and correcting a Jim Crow rule, and if the rule needs changing, Article V is the path.

What you can do: when you receive a jury summons, answer it, and read the Sixth Amendment's text before you go.