SUPREME COURT OF THE UNITED STATES
EVANGELISTO RAMOS, PETITIONER v.
on writ of certiorari to the court of appeal of louisiana, fourth circuit
[April 20, 2020]
Justice Alito, with whom The Chief Justice joins, and with whom Justice Kagan joins as to all but Part III–D, dissenting.
The doctrine of stare decisis
gets rough treatment in today’s decision. Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn.
Nearly a half century ago in Apodaca
406 U.S. 404
(1972), the Court held that the
Sixth Amendment permits non-unanimous verdicts in state criminal trials, and in all the years since then, no Justice has even hinted that Apodaca
should be reconsidered. Understandably thinking that Apodaca
was good law, the state courts in Louisiana and Oregon have tried thousands of cases under rules that permit such verdicts. But today, the Court does away with Apodaca
and, in so doing, imposes a potentially crushing burden on the courts and criminal justice systems of those States. The Court, however, brushes aside these consequences and even suggests that the States should have known better than to count on our decision.
To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting non- unanimous verdicts—even though this Court found such verdicts to be constitutional and even though there are entirely legitimate arguments for allowing them.
I would not overrule Apodaca
. Whatever one may think about the correctness of the decision, it has elicited enormous and entirely reasonable reliance. And before this Court decided to intervene, the decision appeared to have little practical importance going forward. Louisiana has now abolished non-unanimous verdicts, and Oregon seemed on the verge of doing the same until the Court intervened.[1
In Part II of this opinion, I will address the surprising argument, advanced by three Justices in the majority, that Apodaca
was never a precedent at all, and in Part III, I will explain why stare decisis
supports retention of that precedent. But before reaching those issues, I must say something about the rhetoric with which the majority has seen fit to begin its opinion.
Too much public discourse today is sullied by ad hominem
rhetoric, that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents. The majority regrettably succumbs to this trend. At the start of its opinion, the majority asks this rhetorical question: “Why do Louisiana and Oregon allow nonunanimous convictions?” Ante
, at 1. And the answer it suggests? Racism, white supremacy, the Ku Klux Klan. Ante
, at 1–2. Non-unanimous verdicts, the Court implies, are of a piece with Jim Crow laws, the poll tax, and other devices once used to disfranchise African-Americans. Ibid
If Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for these reasons,[2
] that is deplorable, but what does that have to do with the broad constitutional question before us? The answer is: nothing.
For one thing, whatever the reasons why Louisiana and Oregon originally adopted their rules many years ago, both States readopted their rules under different circumstances in later years. Louisiana’s constitutional convention of 1974 adopted a new, narrower rule, and its stated purpose was “judicial efficiency.” State
, 2012–0375, p. 19 (La. App. 4 Cir. 8/2/13), 122 So. 3d 1028, 1038. “In that debate no mention was made of race.” Ibid.
; 7 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 1184–1189 (La. Constitutional Convention Records Comm’n 1977). The people of Louisiana ratified the new Constitution. The majority makes no effort to show either that the delegates to the constitutional convention retained the rule for discriminatory purposes or that proponents of the new Constitution made racial appeals when approval was submitted to the people. The same is true for Oregon’s revisions and reenactments. Ore. Const., Art. I, §11 (amended May 18, 1934); Ore. Rev. Stat. §136.450 (1997); §136.610 (1971).
The more important point, however, is that today’s decision is not limited to anything particular about Louisiana or Oregon. The Court holds that the
Sixth Amendment requires jury unanimity in all
state criminal trials. If at some future time another State wanted to allow non-unanimous verdicts, today’s decision would rule that out—even if all that State’s lawmakers were angels.
For this reason, the origins of the Louisiana and Oregon rules have no bearing on the broad constitutional question that the Court decides. That history would be relevant if there were no legitimate reasons why anyone might think that allowing non-unanimous verdicts is good policy. But that is undeniably false.[3
Some years ago the British Parliament enacted a law allowing non-unanimous verdicts.[4
] Was Parliament under the sway of the Klan? The Constitution of Puerto Rico permits non-unanimous verdicts.[5
] Were the framers of that Constitution racists? Non-unanimous verdicts were once advocated by the American Law Institute and the American Bar Association.[6
] Was their aim to promote white supremacy? And how about the prominent scholars who have taken the same position?[7
] Racists all? Of course not. So all the talk about the Klan, etc., is entirely out of place.[8
] We should set an example of rational and civil discourse instead of contributing to the worst current trends.
Now to what matters.
I begin with the question whether Apodaca
was a precedent at all. It is remarkable that it is even necessary to address this question, but in Part IV–A of the principal opinion, three Justices take the position that Apodaca
was never a precedent. The only truly fitting response to this argument is: “Really?”
Consider what it would mean if Apodaca
was never a precedent. It would mean that the entire legal profession was fooled for the past 48 years. Believing that Apodaca
was a precedent, the courts of Louisiana and Oregon tried thousands of cases under rules allowing conviction by a vote of 11 to 1 or 10 to 2, and appellate courts in those States upheld these convictions based on Apodaca
] But according to three Justices in the majority, these courts were deluded.
This Court, for its part, apparently helped to perpetuate the illusion, since it reiterated time and again what Apodaca
had established. See Timbs
, 586 U. S. ___, ___, n. 1 (2019) (slip op., at 3, n. 1) (Apodaca
held “that the
Sixth Amendment requires jury unanimity in federal, but not state, criminal proceedings”); McDonald
561 U.S. 742
, 766, n. 14 (2010) (
Sixth Amendment “does not require a unanimous jury verdict in state criminal trials”); United States
515 U.S. 506
, 511, n. 2 (1995) (Apodaca
“conclude[d] that jury unanimity is not constitutionally required”); Schad
501 U.S. 624
, 634, n. 5 (1991) (plurality opinion) (“[A] state criminal defendant, at least in noncapital cases, has no federal right to a unanimous jury verdict”); Brown
447 U.S. 323
, 330–331 (1980) (plurality opinion) (“[T]he constitutional guarantee of trial by jury” does not prescribe “the exact proportion of the jury that must concur in the verdict”); Burch
441 U.S. 130
, 136 (1979) (Apodaca
“conclude[d] that a jury’s verdict need not be unanimous to satisfy constitutional requirements”); Ludwig
427 U.S. 618
, 625 (1976) (“holding” in Apodaca
was that “the jury’s verdict need not be unanimous”); see also Holland
493 U.S. 474
, 511 (1990) (Stevens, J., dissenting) (“we have permitted nonunanimous verdicts,” citing Apodaca
v. North Carolina
494 U.S. 433
, 468 (1990) (Scalia, J., dissenting) (the Court has “approved verdicts by less than a unanimous jury,” citing Apodaca
Consistent with these statements of the governing law, whenever defendants convicted by non-unanimous verdicts sought review in this Court and asked that Apodaca
be overruled, the Court denied those requests—without a single registered dissent.[10
] Even the legal academy, never shy about puncturing misconceptions, was taken in.[11
] Everybody thought Apodaca
was a precedent. But, according to three of the Justices in the majority, everybody was fooled. Apodaca
, the precedent, was a mirage. Can this be true?
No, it cannot. The idea that Apodaca
was a phantom precedent defies belief. And it certainly disserves important objectives that stare decisis
exists to promote, including evenhandedness, predictability, and the protection of legitimate reliance. See, e
v. United States
, 587 U. S. ___, ___ (2019); Kimble
v. Marvel Entertainment, LLC
576 U.S. 446, 455–456 (2015); Payne
501 U.S. 808
, 827 (1991).
Under any reasonable understanding of the concept, Apodaca
was a precedent, that is, “a decided case that furnishes a basis for determining later cases involving similar facts or issues.” Black’s Law Dictionary 1366 (10th ed. 2014); see also J. Salmond, Jurisprudence 191 (10th ed. 1947); M. Gerhardt, The Power of Precedent 3 (2008); Landes & Posner, Legal Precedent: A Theoretical and Empirical Analysis, 19 J. Law & Econ. 249, 250 (1976).
Even though there was no opinion of the Court, the decision satisfies even the narrowest understanding of a precedent as this Court has understood the concept: The decision prescribes a particular outcome when all the conditions in a clearly defined set are met. See Seminole Tribe of Fla.
517 U.S. 44
, 67 (1996) (explaining that, at the very least, we are bound by the “result” in a prior case). In Apodaca,
this means that when (1) a defendant is convicted in state court, (2) at least 10 of the 12 jurors vote to convict, and (3) the defendant argues that the conviction violates the Constitution because the vote was not unanimous, the challenge fails. A majority of the Justices in Apodaca
expressly agreed on that result, and that result is a precedent that had to be followed in subsequent cases until Apodaca
That this result constituted a precedent follows a fortiori
from our cases holding that even our summary affirmances of lower court decisions are precedents for “the precise issues presented and necessarily decided” by the judgment below. Mandel
432 U.S. 173
, 176 (1977) (per curiam
). If the Apodaca
Court had summarily affirmed a state-court decision holding that a jury vote of 10 to 2 did not violate the
Sixth Amendment, that summary disposition would be a precedent. Accordingly, it is impossible to see how a full-blown decision of this Court reaching the same result can be regarded as a non-precedent.[12
What do our three colleagues say in response? They begin by suggesting that Louisiana conceded that Apodaca
is not a precedent. See ante,
at 16–17. This interpretation of the State’s position is questionable,[13
] but even if Louisiana made that concession, how could that settle the matter? What about Oregon, the only State that still permits non-unanimous verdicts? Oregon certainly did not make such a concession. On the contrary, it submitted an amicus
brief arguing strenuously that Apodaca
is a precedent and that it should be retained. Brief for State of Oregon as Amicus Curiae
6–32. And what about any other State that might want to allow such verdicts in the future? So the majority’s reliance on Louisiana’s purported concession simply will not do.
Our three colleagues’ next try is to argue that Apodaca
is not binding because a case has no ratio decidendi
when a majority does not agree on the reason for the result. Ante
, at 19, and n. 54. This argument, made in passing, constitutes an attack on the rule that the Court adopted in Marks
v. United States,
430 U.S. 188
(1977), for determining the holding of a decision when there is no majority opinion. Under the Marks
rule, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Id.
at 193 (internal quotation marks omitted). This rule ascribes precedential status to decisions made without majority agreement on the underlying rationale, and it is therefore squarely contrary to the argument of the three Justices who regard Apodaca
rule is controversial, and two Terms ago, we granted review in a case that implicated its meaning. See Hughes
v. United States,
584 U. S. ___ (2018). But we ultimately decided the case on another ground and left the Marks
rule intact. As long as that rule stands, it refutes the argument that Apodaca
is not binding because a majority did not agree on a common rationale.
Finally, our three colleagues contend that treating Apodaca
as a precedent would require the Court “to embrace a new and dubious proposition: that a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected.” Ante
, at 16. This argument appears to weave together three separate questions relating to the precedential effect of decisions in which there is no majority opinion. I will therefore attempt to untangle these questions and address each in turn.
An initial question is whether, in a case where there is no opinion of the Court, the position taken by a single Justice in the majority can constitute the binding rule for which the decision stands. Under Marks
, the clear answer to this question is yes. The logic of Marks
applies equally no matter what the division of the Justices in the majority, and I am aware of no case holding that the Marks
rule is inapplicable when the narrowest ground is supported by only one Justice. Certainly the lower courts have understood Marks
to apply in that situation.[14
The next question is whether the Marks
rule applies any differently when the precedent that would be established by a fractured decision would overrule a prior precedent. Again, the logic of Marks
dictates an affirmative answer, and I am aware of no case holding that the Marks
rule applies any differently in this situation. But as far as the present case is concerned, this question is academic because Apodaca
did not overrule any prior decision of this Court. At most, what the Court had “recognized,” ante,
at 6, in prior cases is that the
Sixth Amendment guaranteed the right to a unanimous jury verdict in trials in federal and territorial courts
] Whether the same rule applied in state prosecutions had not been decided, and indeed, until Duncan
391 U.S. 145
, 154–158 (1968), was handed down just four years before Apodaca
Sixth Amendment had not been held to apply to the States.
The final question is whether Justice Powell’s reasoning in Apodaca
—namely, his view that the
Fourteenth Amendment did not incorporate every aspect of the
Sixth Amendment jury-trial right—is a binding precedent, and the answer to that question is no. When, in the years after Apodaca
, new questions arose about the scope of the jury-trial right in state court—as they did in cases like Apprendi
v. New Jersey
530 U.S. 466
(2000), and Blakely
542 U.S. 296
(2004)—nobody thought for a second that Apodaca
committed the Court to Justice Powell’s view that the right has different dimensions in state and federal cases. And no one on this Court or on a lower court had any trouble locating the narrow common ground between Justice Powell and the plurality in Apodaca
: The States need not require unanimity to comply with the Constitution.
For all these reasons, Apodaca
clearly was a precedent, and if the Court wishes to be done with it, it must explain why overruling Apodaca
is consistent with the doctrine of stare decisis
has been a fundamental part of our jurisprudence since the founding, and it is an important doctrine. But, as we have said many times, it is not an “inexorable command.” Payne
, 501 U. S., at 828; Gamble
, 587 U. S., at ___–___ (slip op., at 11–12). There are circumstances when past decisions must be overturned, but we begin with the presumption that we will follow precedent, and therefore when the Court decides to overrule, it has an obligation to provide an explanation for its decision.
This is imperative because the Court should have a body of neutral
principles on the question of overruling precedent. The doctrine should not be transformed into a tool that favors particular outcomes.[16
What is the majority’s justification for overruling Apodaca
With no apparent appreciation of the irony, today’s majority, which is divided into four separate camps,[17
] criticizes the Apodaca
majority as “badly fractured.” Ante
, at 8. But many important decisions currently regarded as precedents were decided without an opinion of the Court.[18
] Does the majority mean to suggest that all such precedents are fair game?
The majority’s primary reason for overruling Apodaca
is the supposedly poor “quality” of Justice White’s plurality opinion and Justice Powell’s separate opinion. Ante
, at 19–21. The majority indicts Justice White’s opinion on five grounds: (1) it “spent almost no time grappling with the historical meaning of the
Sixth Amendment’s jury trial right,”[19
] (2) it did not give due weight to the “Court’s long-repeated statements that [the right] demands unanimity,”[20
] (3) it did not take into account “the racist origins of [the] Louisian[a] and Orego[n] laws,”[21
] (4) it looked to the function of the jury-trial right,[22
] and (5) it engaged in “a breezy cost-benefit analysis” that, in any event, did not properly weigh the costs and benefits.[23
] All these charges are overblown.
First, it is quite unfair to criticize Justice White for not engaging in a detailed discussion of the original meaning of the
Sixth Amendment jury-trial right since he had already done that just two years before in his opinion for the Court in Williams
399 U.S. 78
, 92–100 (1970). In Williams
, after examining that history, he concluded that the
Sixth Amendment did not incorporate every feature of the common-law right (a conclusion that the majority, by the way, does not dispute). And in Apodaca
, he built on the analysis in Williams.
Accordingly, there was no need to repeat what had been said before.
Second, it is similarly unfair to criticize Justice White for not discussing the prior decisions that commented on jury unanimity. None of those decisions went beyond saying that this was a feature of the common-law right or cursorily stating that unanimity was required.[24
] And as noted, Williams
had already held that the
Sixth Amendment did not preserve all aspects of the common-law right.
Third, the failure of Justice White (and Justice Powell) to take into account the supposedly racist origins of the Louisiana and Oregon laws should not be counted as a defect for the reasons already discussed. See supra,
Fourth, it is hard to know what to make of the functionalist charge. One Member of the majority explicitly disavows this criticism, see ante
, at 2 (Sotomayor, J., concurring in part), and it is most unlikely that all the Justices in the majority are ready to label all functionalist decisions as poorly reasoned. Most of the landmark criminal procedure decisions from roughly Apodaca
’s time fall into that category. See Mapp
367 U.S. 643
, 654 (1961) (
Fourth Amendment); Miranda
384 U.S. 436
, 444 (1966) (
Fifth Amendment); Gideon
372 U.S. 335
, 344–345 (1963) (
Sixth Amendment); Furman
408 U.S. 238
, 239 (1972) (per curiam
] Are they all now up for grabs?
The functionalist criticism dodges the knotty problem that led Justice White to look to the underlying purpose of the jury-trial right. Here is the problem. No one questions that the
Sixth Amendment incorporated the core
of the common-law jury-trial right, but did it incorporate every feature
of the right? Did it constitutionalize the requirement that there be 12 jurors even though nobody can say why 12 is the magic number? And did it incorporate features that we now find highly objectionable, such as the exclusion of women from jury service? At the time of the adoption of the
Sixth Amendment (and for many years thereafter), women were not regarded as fit to serve as a defendant’s peers. Unless one is willing to freeze in place late 18th-century practice, it is necessary to find a principle to distinguish between the features that were incorporated and those that were not. To do this, Justice White’s opinion for the Court in Williams
looked to the underlying purpose of the jury-trial right, which it identified as interposing a jury of the defendant’s peers to protect against oppression by a “ ‘corrupt or overzealous prosecutor’ ” or a “ ‘compliant, biased, or eccentric judge.’ ” 399 U. S., at 100 (quoting Duncan
, 391 U. S., at 156).
The majority decries this “functionalist” approach but provides no alternative. It does not claim that the
Sixth Amendment incorporated every feature of common-law practice, but it fails to identify any principle for identifying the features that were absorbed. On the question of jury service by women, the majority’s only answer, buried in a footnote, is that the exclusion of women was outlawed by “further constitutional amendments,” ante
, at 15, n. 47, presumably the
Fourteenth Amendment. Does that mean that the majority disagrees with the holding in Taylor
419 U.S. 522
(1975)—another opinion by Justice White—that the exclusion of women from jury service violates the
, at 531, 533–536.[26
Fifth, it is not accurate to say that Justice White based his conclusion on a cost-benefit analysis of requiring jury unanimity. His point, rather, was that what the Court had already identified as the fundamental purpose of the jury-trial right was not undermined by allowing a verdict of 11 to 1 or 10 to 2.
I cannot say that I would have agreed either with Justice White’s analysis or his bottom line in Apodaca
if I had sat on the Court at that time, but the majority’s harsh criticism of his opinion is unwarranted.
What about Justice Powell’s concurrence? The majority treats Justice Powell’s view as idiosyncratic, but it does not merit that derision. Justice Powell’s belief that the Constitution allows the States a degree of flexibility in the interpretation of certain constitutional rights, although not our dominant approach in recent years, McDonald
, 561 U. S., at 759–766, has old and respectable roots. For a long time, that was the Court’s approach. See id
., at 759–761. Only gradually did the Court abandon this “two-tier” system, see id.
, at 762–767, and it was not until Duncan
at 154–158, decided just four years before Apodaca
, that the
Sixth Amendment jury-trial right was held to apply to the States at all. Justice Powell’s approach is also not without recent proponents, including, at least with respect to the
Second Amendment, Justices now in the majority.[27
Even now, our cases do not hold that every
provision of the Bill of Rights applies in the same way to the Federal Government and the States. A notable exception is the Grand Jury Clause of the
Fifth Amendment, a provision that, like the
Sixth Amendment jury-trial right, reflects the importance that the founding generation attached to juries as safeguards against oppression. In Hurtado
110 U.S. 516
, 538 (1884), the Court held that the Grand Jury Clause does not bind the States and that they may substitute preliminary hearings at which the decision to allow a prosecution to go forward is made by a judge rather than a defendant’s peers. That decision was based on reasoning that is not easy to distinguish from Justice Powell’s in Apodaca. Hurtado
remains good law and is critically important to the 28 States that allow a defendant to be prosecuted for a felony without a grand jury indictment.[28
] If we took the same approach to the Hurtado
question that the majority takes in this case, the holding in that case could be called into question.
The majority’s only other reason for overruling Apodaca
is that it is inconsistent with related decisions and recent legal developments. Ante
, at 21; ante
, at 2 (Sotomayor, J., concurring in part). I agree that Justice Powell’s view on incorporation is not in harmony with the bulk of our case law, but the majority’s point about “recent legal developments” is an exaggeration. No subsequent
Sixth Amendment decision has undercut the plurality. And while Justice Powell’s view on incorporation has been further isolated by later cases holding that two additional provisions of the Bill of Rights apply with full force to the States, see Timbs
, 586 U. S., at ___ (slip op., at 2) (
Eighth Amendment’s Excessive Fines Clause); McDonald
at 791 (plurality opinion) (
Second Amendment), the project of complete incorporation was nearly done when Apodaca
was handed down. See McDonald
, at 765, n. 13.
While the majority worries that Apodaca
is inconsistent with our cases on incorporation, the majority ignores something far more important: the way in which Apodaca
is intertwined with the body of our
Sixth Amendment case law. As I have explained, see supra
, at 15, the Apodaca
plurality’s reasoning was based on the same fundamental mode of analysis as that in Williams
399 U.S. 78
, which had held just two years earlier that the
Sixth Amendment did not constitutionalize the common law’s requirement that a jury have 12 members. Although only one State, Oregon, now permits non-unanimous verdicts, many more allow six- person juries.[29
] Repudiating the reasoning of Apodaca
will almost certainly prompt calls to overrule Williams.
Up to this point, I have discussed the majority’s reasons for overruling Apodaca,
but that is only half the picture. What convinces me that Apodaca
should be retained are the enormous reliance interests of Louisiana and Oregon. For 48 years, Louisiana and Oregon, trusting that Apodaca
is good law, have conducted thousands and thousands of trials under rules allowing non-unanimous verdicts. Now, those States face a potential tsunami of litigation on the jury- unanimity issue.
At a minimum, all defendants whose cases are still on direct appeal will presumably be entitled to a new trial if they were convicted by a less-than-unanimous verdict and preserved the issue in the trial court. And at least in Oregon, even if no objection was voiced at trial, defendants may be able to challenge their convictions based on plain error. See Ore. Rule App. Proc. 5.45(1), and n. 1 (2019); State
, 355 Ore. 172, 179, 324 P.3d 1274, 1280 (2014). Oregon asserts that more than a thousand defendants whose cases are still on direct appeal may be able to challenge their convictions if Apodaca
is overruled. Brief for State of Oregon as Amicus Curiae
] The State also reports that “[d]efendants are arguing that an instruction allowing for non-unanimous verdicts is a structural error that requires reversal for all
convictions, even for those for which the jury was not polled or those for which the jury was unanimous.” Id
., at 14.
Unimpressed by these potential consequences, the majority notes that we “vacated and remanded nearly 800 decisions” for resentencing after United States
543 U.S. 220
(2005), held that the Federal Sentencing Guidelines are not mandatory. Ante
, at 23.
But the burden of resentencing cannot be compared with the burden of retrying cases. And while resentencing was possible in all the cases affected by Booker
, there is no guarantee that all the cases affected by today’s ruling can be retried. In some cases, key witnesses may not be available, and it remains to be seen whether the criminal justice systems of Oregon and Louisiana have the resources to handle the volume of cases in which convictions will be reversed.
These cases on direct review are only the beginning. Prisoners whose direct appeals have ended will argue that today’s decision allows them to challenge their convictions on collateral review, and if those claims succeed, the courts of Louisiana and Oregon are almost sure to be overwhelmed.
The majority’s response to this possibility is evasive. It begins by hinting that today’s decision will not apply on collateral review under the framework adopted in Teague
489 U.S. 288
, 315 (1989) (plurality opinion). Under Teague
, “an old rule applies both on direct and collateral review,” but if today’s decision constitutes a new procedural rule, prisoners will be able to rely on it in a collateral proceeding only if it is what we have termed a “watershed rule” that implicates “the fundamental fairness and accuracy of the criminal proceeding.” Whorton
549 U.S. 406
, 416 (2007). Noting that we have never found a new rule of criminal procedure to qualify as “watershed,” the Court hints that the decision in this case is likely to meet the same fate.
But having feinted in this direction, the Court quickly changes course and says that the application of today’s decision to prisoners whose appeals have ended should not concern us. Ante
, at 23–24. That question, we are told, will be decided in a later case. Ibid
The majority cannot have it both ways. As long as retroactive application on collateral review remains a real possibility, the crushing burden that this would entail cannot be ignored. And while it is true that this Court has been chary in recognizing new watershed rules, it is by no means clear that Teague
will preclude the application of today’s decision on collateral review.
applies only to a “new rule,” and the positions taken by some in the majority may lead to the conclusion that the rule announced today is an old rule. Take the proposition, adopted by three Members of the majority, that Apodaca
was never a precedent. Those Justices, along with the rest of the majority, take the position that our cases established well before Apodaca
both that the
Sixth Amendment requires unanimity, ante
, at 6–7, and that it applies in the same way in state and federal court, ante
, at 9. Thus, if Apodaca
was never a precedent and did not disturb what had previously been established, it may be argued that today’s decision does not impose a new rule but instead merely recognizes what the correct rule has been for many years.
Two other Justices in the majority acknowledge that Apodaca
was a precedent and thus would presumably regard today’s decision as a “new rule,” but the question remains whether today’s decision qualifies as a “watershed rule.” Justice Kavanaugh concludes that it does not and all but decides—without briefing or argument—that the decision will not apply retroactively on federal collateral review and similarly that there will be no successful claims of ineffective assistance of counsel for failing to challenge Apodaca
. See ante,
at 15–17 (opinion concurring in part).
The remaining Justices in the majority, and those of us in dissent, express no view on this question, but the majority’s depiction of the unanimity requirement as a hallowed right that Louisiana and Oregon flouted for ignominious reasons certainly provides fuel for the argument that the rule announced today meets the test. And in Oregon, the State most severely impacted by today’s decision, watershed status may not matter since the State Supreme Court has reserved decision on whether state law gives prisoners a greater opportunity to invoke new precedents in state collateral proceedings. See Verduzco
, 357 Ore. 553, 574, 355 P.3d 902, 914 (2015).[31
Whatever the ultimate resolution of the retroactivity question, the reliance here is not only massive; it is concrete. Cf. Dickerson
v. United States
530 U.S. 428
, 443 (2000) (reliance weighed heavily in favor of precedent simply because the warnings in Miranda
384 U.S. 436
, had become “part of our national culture”). In my view, it weighs decisively against overruling Apodaca.
In reaching this conclusion, I do not disregard the interests of petitioner and others who were convicted by a less-than-unanimous vote. It is not accurate to imply that these defendants would have been spared conviction if unanimity had been required. In many cases, if a unanimous vote had been needed, the jury would have continued to deliberate and the one or two holdouts might well have ultimately voted to convict.[32
] This is almost certainly the situation in Oregon, where it is estimated that as many as two-thirds of all criminal trials have ended with a non-unanimous verdict. See Brief for State of Oregon as Amicus Curiae
12. It is impossible to believe that all these cases would have resulted in mistrials if unanimity had been demanded. Instead, after a vote of 11 to 1 or 10 to 2, it is likely that deliberations would have continued and unanimity would have been achieved.
Nevertheless, the plight of defendants convicted by non-unanimous votes is important and cannot be overlooked, but that alone cannot be dispositive of the stare decisis
question. Otherwise, stare decisis
would never apply in a case in which a criminal defendant challenges a precedent that led to conviction.
The reliance in this case far outstrips that asserted in recent cases in which past precedents were overruled. Last Term, when we overturned two past decisions, there were strenuous dissents voicing fears about the future of stare decisis
. See Franchise Tax Bd. of Cal.
, 587 U. S. ___, ___ (2019) (Breyer, J., dissenting); Knick
v. Township of Scott
588 U. S. ___, ___ (2019) (Kagan, J., dissenting). Yet in neither of those cases was there reliance like that present here.
In Franchise Tax Board
, the dissent claimed only the airiest sort of reliance, the public’s expectation that past decisions would remain on the books. 587 U. S., at ___–___ (opinion of Breyer, J.) (slip op., at 12–13). And in Knick
, the dissent disclaimed any reliance at all. 588 U. S., at ___ (opinion of Kagan, J.) (slip op., at 17). The same was true the year before in South Dakota
., 585 U. S. ___ (2018), where the dissent did not contend that any legitimate reliance interests weighed in favor of preserving the decision that the Court overruled. Id.
, at ___–___ (opinion of Roberts, C. J.) (slip op., at 1–2). And our unanimous decision in Pearson
555 U.S. 223
, 233 (2009), found that no reliance interests were involved.
In other cases overruling prior decisions, the dissents claimed that reliance interests were at stake, but whatever one may think about the weight of those interests, no one can argue that they are comparable to those in this case.
556 U.S. 778
, 793–797 (2009), the Court abrogated a prophylactic rule that had been adopted in Michigan
475 U.S. 625
(1986), to protect a defendant’s right to counsel during post- arraignment interrogation. The dissent did not claim that any defendants had relied on this rule, arguing instead that the public at large had an interest “in knowing that counsel, once secured, may be reasonably relied upon as a medium between the accused and the power of the State.” Montejo
, at 809 (opinion of Stevens, J.). This abstract interest, if it can be called reliance in any proper sense of the term, is a far cry from what is at stake here.
In Citizens United
v. Federal Election Comm’n
, 558 U.S. 310
(2010), where we overruled precedent allowing laws that prohibited corporations’ election-related speech, we found that “[n]o serious reliance interests” were implicated, id.
, at 365, since the only reliance asserted by the dissent was the time and effort put in by federal and state lawmakers in adopting the provisions at issue, id
., at 411–412 (Stevens, J., concurring in part and dissenting in part). In this case, by contrast, what is at stake is not the time and effort of Louisiana and Oregon lawmakers but a monumental litigation burden and the potential inability to retry cases that might well have ended with a unanimous verdict if that had been required.
Finally, in Janus
v. State, County, and Municipal Employees
, 585 U. S. ___ (2018),
where we overruled Abood
v. Detroit Bd. of Ed.
431 U.S. 209
(1977), we carefully considered and addressed the question of reliance, and whatever one may think about the extent of the legitimate reliance in that case, it is not in the same league as that present here. Abood
had held that a public sector employer may require non-union members to pay a portion of the dues collected from union members. 431 U. S., at 235–236. In overruling that decision, we acknowledged that existing labor contracts might have been negotiated in reliance on Abood
, but we noted that most labor contracts are of short duration, that unions had been on notice for some time that the Court had serious misgivings about Abood
, and that unions could have insisted on contractual provisions to protect their interests if Abood
later fell. Janus
, at ___–___ (slip op., at 44–47).[33
By striking down a precedent upon which there has been massive and entirely reasonable reliance, the majority sets an important precedent about stare decisis
. I assume that those in the majority will apply the same standard in future cases.
* * *
Under the approach to stare decisis
that we have taken in recent years, Apodaca
should not be overruled. I would therefore affirm the judgment below, and I