SCOTUS Agrees to Hear Unanimous Jury Incorporation Challenge

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court granted the petition for certiorari in Ramos v. Louisiana posing the question whether the right to a unanimous jury verdict is incorporated as against the states through the Fourteenth Amendment.

Recall that in McDonald v. City of Chicago (2010), in which a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause), Justice Alito writing for the plurality discussed the state of incorporation doctrine in some detail.  In footnote 12, Alito's opinion discussed the provisions of the amendments in the Bill of Rights that had been incorporated, providing citations, and in footnote 13, the opinion discussed the provisions that had not yet been incorporated, other than the Second Amendment then under consideration:

• the Third Amendment’s protection against quartering of soldiers;
• the Fifth Amendment’s grand jury indictment requirement;
• the Seventh Amendment right to a jury trial in civil cases; and
• the Eighth Amendment’s prohibition on excessive fines.

Just this term in February, the Court whittled this small list down to three, deciding unanimously in Timbs v. Indiana that the Eighth Amendment's prohibition on excessive fines is incorporated through the Fourteenth Amendment, following an oral argument in which some Justices expressed wonderment that the issue of incorporation was even arguable in 2018.

But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address.  That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict.  Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both theFederal Government and the States. See Johnson, supra, at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissenting); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trialguarantee, however it is to be construed, has identical application against both State and Federal governments.")

Thus, in Ramos v. Louisiana, the Court is set to address this "exception to the general rule" and decide whether jury unanimity is required in a criminal case in state court to the same extent as in federal court pursuant to the Fourteenth Amendment.

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