The Decision To Require Unanimous Juries Was Not Unanimous

From the Washington Post


April 20, 2020 at 1:27 p.m. CDT
The Supreme Court on Monday ruled 6 to 3 that state court juries must be unanimous to convict a defendant of a serious crime, a decision that scrambled the court’s usual ideological lineups and prompted soul-searching among some justices about when to overturn precedent.Louisiana and Oregon are the only two states that do not require unanimity for major crimes, and Justice Neil M. Gorsuch said each state’s decision was rooted in discrimination. Although unanimity is not mentioned in the Constitution’s guarantee of an unbiased trial, he wrote, it is clear what is required.

“Wherever we might look to determine what the term ‘trial by an impartial jury trial’ meant at the time of the Sixth Amendment’s adoption — whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward — the answer is unmistakable,” Gorsuch wrote. “A jury must reach a unanimous verdict in order to convictBut it was not so obvious to a previous court. In a 1972 opinion, the Supreme Court ruled 5 to 4 that the Sixth Amendment requires unanimous verdicts in federal trials. But one of the five, Justice Lewis F. Powell Jr., said unanimous verdicts were not required in state trials.

Whether to overrule the decision in Apodaca v. Oregon and a companion case, Johnson v. Louisiana — and whether Powell’s view was a precedent at all — deeply divided the court.


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