Justices Consider Retroactivity For Unanimous Jury Requirement | Supreme Court’s Total Transformation
December 3, 2020
THE TIME HAS COME
|Yesterday, SCOTUS weighed whether its Ramos v. Louisiana decision in April to ban non-unanimous jury verdicts in cases involving serious crimes should apply retroactively. At the time of that decision, the justices were apparently divided over whether the decision should apply to past cases and decided to save that question for another day. Nina Totenberg with NPR reports, “On Wednesday that day arrived, as the justices debated whether last April’s new constitutional rule should apply to, potentially, several thousand prisoners in Louisiana and Oregon, convicted in the past by non-unanimous juries. The states were the only ones that allowed such verdicts prior to the court’s decision in April.”
RELIC OF WHITE SUPREMACY
|Adam Liptak with the New York Times points out that JUSTICE NEIL GORSUCH wrote for the majority in the court’s April decision and called the provision of the Louisiana Constitution that allowed convictions if nonunanimous juries a relic of white supremacy. During yesterday’s argument, justices including CLARENCE THOMAS and BRETT KAVANAUGH similarly referred to the racist roots of that provision. But as Liptak writes, the April decision “applied only to defendants whose convictions were not yet final. Wednesday’s argument was about whether the decision should also apply to inmates who had exhausted their appeals.”
WATERSHED MOMENT
|SCOTUS generally does not allow a decision to be applied retroactively, but precedents say an exception can be made for what it calls a “watershed” rule. Robert Barnes with The Washington Post notes that although JUSTICE ELENA KAGAN dissented in the April decision, she suggested yesterday that the current case might present another watershed moment. “Ramos says that if you haven’t been convicted by a unanimous jury, you really haven’t been convicted at all. And so how could it be that a rule like that does not have retroactive effect?”
YOUR BURDEN TO BEAR
|Jess Bravin with The Wall Street Journal also covered the hearing on retroactivity for requiring unanimous juries writing, “JUSTICE STEPHEN BREYER worried about forcing authorities to retry or release hundreds of inmates; JUSTICE NEIL GORSUCH, who wrote April’s plurality opinion, suggested that concern was irrelevant.” When asked if Louisiana could handle the practical effect of retroactivity, the Louisiana solicitor general tried to underscore how heavy a burden it would be for the state. But Justice Gorsuch clapped, “What relevance does this have anyway? If this really were a significant change and an important one, wouldn’t we expect there to be some burden for the state?”
TEARS OF JOY
|In an interview released yesterday on Facebook, JUSTICE SONIA SOTOMAYOR shared that she worried PRESIDENT OBAMA wouldn’t select her to serve on the Supreme Court. She thought she was included on his shortlist just for show. But when he called to tell her she was his pick, she started crying and Obama said, “Judge, you don’t have to cry. I’m putting together the best team to get you through this confirmation process.” Marina Pitofsky with The Hill reports.
TOTAL MAKEOVER
|“Progressives led by PRESIDENT-ELECT JOE BIDEN will soon take over the White House, but at the Supreme Court, liberalism has reached a historically low ebb. A court that drove liberal social change for decades is now an engine of conservatism.” That’s Joan Biskupic with CNN reviewing the transformation of SCOTUS that has been years in the making and finally came together this year with the arrival of JUSTICE AMY CONEY BARRETT.