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Stare Decisis REDUX, Redux, redux ...

by: Don Samuel

Last fall, I wrote a short blog post (Sept. 2, 2020) about the two decisions from Louisiana which explored the boundaries of stare decisis: Ramos v. Louisiana, 140 S. Ct. 1390 (2020), and June Medical Services v. Russo, 140 S. Ct. 2103 (2020). As it turns out, I should have noted that the blog post was chapter 1, or perhaps I should have described the post as inmedias res: the middle of the story of the Court’s view of stare decisis.

Ramos was authored by Justice Gorsuch, with a tour de force concurrence by Justice Kavanaugh. Justice Kagan dissented. The decision held, in eloquent and forceful terms, that the constitution would not tolerate a non-unanimous verdict in a serious criminal case in state and federal criminal trials. Justice Kagan dissented because she opined that stare decisis required adherence to the oddly aligned decision in Apodaca v. Oregon, 406 U.S. 404 (1972), which held that unanimity was constitutionally required in federal criminal trials, but not state criminal trials. Justice Gorsuch’s opinion, as well as Justice Kavanaugh’s concurrence offered many explanations that, stare decisis notwithstanding, it is a vital, essential, fundamental, and indispensable component of the right to trial by jury that the verdict be unanimous in a serious criminal case.

Well, that sounds right.

And then along comes Edwards v. Vannoy, 141 S.Ct. 1547 (2021). As is the case with so many criminal cases, the term after a major change in criminal procedure, the question arises, “Is that decision retroactive to cases on collateral review (i.e., post direct appeal)?” The test generally used to answer that question is this: If the decision that the petitioner seeks to apply retroactively represents a “watershed” development in criminal procedure, then it does apply retroactively. That test was announced in Teague v. Lane.

So, is Ramos a watershed decision of criminal procedure?

Let’s pause for moment and think of sitting in a barbershop chair or salon chair. The kind of chair in which there is a mirror in front of you and one behind which allows you to look at yourself front and back, and the images repeat back and forth receding infinitely.

Now think of looking back at Apodaca and Ramos and Edwards. Justice Kavanaugh wrote the majority opinion in Edwards: bottom line: Ramos is not to be applied retroactively. Though the right to a unanimous verdict was described in the most eloquent terms in Ramos, it does not equate to a watershed development in criminal procedure. And even if it meets that hurdle, it turns out that Teague itself is a precedent that will be ignored. The “watershed” standard is abandoned. The receding images in the mirrors are dizzying. The standard for retroactivity was itself abandoned.

But it gets more complicated. Because Justice Kagan, who dissented in Ramos and wrote in that dissent that the right to a unanimous verdict was not a constitutional right at all, now dissented in Edwards and wrote that the right to a unanimous verdict is not only a constitutional right, but it is a right that meets the “watershed” standard.

Justice Kagan’s dissent is not to be missed. It is Scalian in its tone of voice, sarcasm and eloquence.

Even if you don’t care about the right to a unanimous verdict in criminal cases (Georgia has always required a unanimous verdict) and even if you don’t care about the Teague v. Lane rules of retroactivity, surely you don’t want to miss Justice Kagan’s debut, after all these years, writing a dissent that obliterates, line-by-line, the majority opinion.

And why does Justice Kagan cling to stare decisis (in Ramos she advocated for one position based on Apodaca and in Edwards she advocated for the opposite position based on Ramos)?

No secret there: remember June Medical? It hung on by a thread to the Roe v. Wade and Whole Woman’s Health protection of the right to abortion. That was the other half of my post about stare decisis in the 2019 SCOTUS term.

Justice Kagan surely knew that when Edwards v. Vannoy was decided on May 17, 2021, along with the announcement of her ode to stare decisis, the Court also granted cert in another case – Dobbs v. Jackson Women’s Health Organization – which will decide the “viability” (so to speak) of Roe v. Wade. If ever the Court’s adherence to stare decisis will be tested, May 17 will be a date to remember.