Who were the real conservatives?
WASHINGTON — Indignation fueled Justice Elena Kagan’s crackling Monday dissent. Its power will not, however, lighten the remainder of Thedrick Edwards’ days, which he will spend in a Louisiana prison.
The case concerned whether the court would make retroactive a “momentous” — an adjective used repeatedly in the Supreme Court’s majority opinion — rule it affirmed 13 months ago. In April 2020, the court overturned the 2016 murder conviction of Evangelisto Ramos because the jury votes (10 to 2 and 11 to 1 on particular counts) that sentenced him to life imprisonment were not unanimous. On Monday, the court held, 6 to 3, that the rule it affirmed in overturning Ramos’s conviction is not a “watershed” rule, and hence shall not be applied retroactively to Edwards’ benefit. This, even though his 2007 conviction was, by the court’s holding regarding Ramos, unfair because unreliable.
Writing for the majority, Justice Brett Kavanaugh said that the Ramos rule was “new,” and the court has refused to retroactively apply other momentous new rules. Kavanaugh emphasized that in 1989 the court said it was “unlikely” that new watershed “components of basic due process” would emerge. In 32 years, “the Court has never found” any such new rule. It is “candid,” Kavanaugh wrote, to say that it is an “empty promise” to continue the “fiction” that the watershed distinction is not “moribund.” Furthermore, Kavanaugh said, retroactive application of the Ramos rule would involve many retrials costly to states, and to the important principle of finality in criminal justice.
Kagan responded: “If you were scanning a thesaurus for a single word to describe the [Ramos] decision, you would stop when you came to ‘watershed.’” But the majority would not scan: Those justices say that because no new watershed rules have been identified since 1989, they are presumptively nonexistent.
In the 2020 Ramos decision, the court correctly ruled that jury unanimity is implicit in the original meaning of the Sixth Amendment’s guarantee of a jury trial. Furthermore, unanimity is “vital,” “essential,” “indispensable” and “fundamental,” meaning essential to fair trials. With this momentous (if not watershed) ruling, the court acceded to the request that it overturn a 1972 precedent. It did so partly because the states that had allowed non-unanimous jury verdicts had done so in order to dilute or nullify the votes of minority, especially Black, jurors.
Kagan’s dissent said: “The majority argues in reply that the jury unanimity rule is not so fundamental because… . Well, no, scratch that. Actually, the majority doesn’t contest anything I’ve said about the foundations and functions of the unanimity requirement. Nor could the majority reasonably do so. For everything I’ve said about the unanimity rule comes straight out of Ramos’ majority and concurring opinions.”
Kagan wrote of the Ramos rule, “If a rule so understood isn’t a watershed one, then nothing is.” With this, the majority agreed.
On Monday, the court effectively nullified a 1989 precedent, although neither party had asked for it, and the issue had not been argued in briefs. The 1989 case introduced the category of a “watershed” rule, defining this as a rule that addresses “‘the bedrock procedural elements’ of the criminal process.” The case held that watershed rules would be few but momentous, and hence would be applied retroactively.
But the majority concluded that because no watershed rules have been enunciated since 1989, the number of such rules can be considered complete. Stare decisis — respect for precedent — is not an unbreakable commandment, but is, Kagan said, “a foundation stone of the rule of law.” She also said, “The majority crawls under, rather than leaps over, the stare decisis bar”:
“If there can never be any watershed rules — as the majority here asserts out of the blue — then, yes, jury unanimity cannot be one. The result follows trippingly from the premise. But adopting the premise requires departing from judicial practice and principle.” According to the Ramos rule, Kagan said, Edwards was unfairly convicted. And the court’s decision means that “those convicted under rules found not to produce fair and reliable verdicts will be left without recourse in federal courts.”
Kavanaugh’s opinion was joined by Chief Justice John Roberts Jr. and Justices Samuel Alito Jr., Amy Coney Barrett, Neil Gorsuch and Clarence Thomas. Joining Kagan in dissent were Justices Stephen Breyer and Sonia Sotomayor. Although ferociously contested Supreme Court nomination fights supposedly involve stark contrasts between conservative and progressive jurisprudence, ask yourself: In this case — which turned on respect (or not) for settled (or not) judicial procedure, and which strengthened the state at the expense of individual rights — who were the conservatives?