Editorial: Intrigue at the US Supreme Court

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The U.S. Supreme Court ruled last week that jury verdicts in cases of serious crime must be unanimous in every state. It’s superficially amusing that the justices’ decision was not so. But what’s fascinating to court-watchers, and relevant to all Americans, is how the 6-3 decision came down.

The case took longer than usual to reach denouement. There were unexpected alliances, although three of the justices in the majority concurred only in part and offered their own thoughts. Finally, there was much discussion about how precedents are set and under what conditions they should be overturned.

All of which shows that what a case is about is not all it’s about.

The immediate issue was straightforward enough. The court has long held that the Sixth Amendment prohibits non-unanimous verdicts in federal trials and that federal protections under the Bill of Rights generally apply to the states as well. But it also had ruled in 1972 that federal and state criminal cases could be treated differently.

In only two states is that directly pertinent: Oregon, which allows non-unanimous verdicts, and Louisiana, which did until recently. (It was a Louisiana case that came before the court.) That those states’ practices had undisputed racial origins provided heft for the majority opinion by Justice Neil Gorsuch, a conservative who was joined by liberal Justices Ruth Bader Ginsburg and Stephen Breyer. But Gorsuch also focused on the significance of the 1972 ruling, in which Justice Lewis Powell tipped a 4-4 balance with reasoning the court has since held at arm’s length. Though Powell’s solo concurring opinion was considered the controlling one, Gorsuch doubted that a “single justice writing only for himself has the authority to bind” the court — that such a thing could be considered precedent.

Justice Sonia Sotomayor joined most of Gorsuch’s opinion but did not appear to agree that the 1972 case was not a precedent to be overruled. She sought to drive home the point that it should be.

Justice Clarence Thomas also joined the majority conclusion but was primarily concerned about which clause of the 14th Amendment was best applied (Privileges or Immunities, he wrote, not Due Process — a mistake he feels the court is making repeatedly).

Justice Samuel Alito wrote the dissent and was joined by Chief Justice John Roberts and Justice Elena Kagan. The key worry of the minority opinion was the impact the ruling would have on verdicts already reached.

But most interesting was the concurring opinion by the newest justice, Brett Kavanaugh. Arguing that the court regularly overturns precedent but through a “muddle” of rationale, he sought to establish a “neutral and consistent” manner of reconsideration: Is the prior decision not just wrong, but grievously or egregiously wrong? Has it caused significant negative jurisprudential or real-world consequences? Would overruling it unduly upset interests in the existing legal order?

Happen to know of any other precedents to which Kavanaugh might apply this new framework?

It’s a fact, though perhaps not well-known, that the Supreme Court produces many more unanimous or near-unanimous rulings than sorely divided ones. Not all cases involve schismatic social issues. Nonetheless, conventional wisdom has it that the court will soon entertain challenges to Roe v. Wade, which set a precedent for abortion rights. Kavanaugh didn’t necessarily reveal his vector. He seemed to be charting a course on a contour map toward an off-page destination.

The justices are smart people who tackle big questions. There’s no reason to believe they distort the business before them in pursuit of larger agendas. But they’re certainly aware of their institution’s impact and their roles within it, and it would be wrong to assume that they aren’t strategic. We may have just seen a teaser to a coming main attraction.


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