Unanimous Juries (and So Much More): Ramos v. Louisiana

In Ramos v. Louisiana, the Supreme Court held that the Sixth Amendment requires a jury that convicts a defendant to do so unanimously—and that this requirement applies to the states. In the process, the Court struck down non-unanimous jury statutes in Louisiana and Oregon, and overruled Apodaca v. Oregon (1972). But Ramos was not your typical incorporation-doctrine case. References to Jim Crow and racial segregation were sprinkled throughout the case’s opinions; Justice Clarence Thomas wrote extensively on his incorporation philosophy; and, most interestingly, Justice Brett Kavanaugh penned a long, solo concurrence in which he laid out his opinion on stare decisis and when to overrule precedent. Here’s my analysis of Ramos v. Louisiana.


If you’ve ever wanted to peer into the judicial philosophies of current Supreme Court Justices, look no further than Ramos v. Louisiana. Normally, Supreme Court decisions have a set structure: a short introduction, a restatement of the facts, an outline of the procedural history, then the holding and reasoning, and, at last, responses to objections. But the majority opinion in Ramos doesn’t do that. Neither do the concurrences or dissent. Justice Neil Gorsuch’s majority opinion and Justice Samuel Alito’s dissent read like dueling essays on an historical topic. And two concurrences—from Justices Clarence Thomas and Brett Kavanaugh—are like microscopes into the Justices’ juridical thoughts. The whole decision reads as if you sat the nine Justices down in a room for an open-ended symposium on the Sixth Amendment’s jury clauses, Jim Crow and the KKK, the incorporation doctrine, and stare decisis—along with coffee and donuts (or cupcakes for Justice Sotomayor).

The case stemmed from Petitioner Evangelisto Ramos’ second-degree murder conviction after a jury voted 10:2 to find him guilty. In 48 states (and in federal court), such a “hung” jury results in a mistrial. But in Louisiana (where Ramos was tried) and Oregon, a 10:2 jury vote allows a guilty verdict. So, Ramos was sentenced to life imprisonment without the possibility of parole, when, in a neighboring state, Ramos would have the luxury of being retried with a new jury.

Ramos appealed his conviction, arguing it violated his Sixth Amendment rights. Specifically, Ramos said that the Sixth Amendment’s guarantee of a “unanimous jury” should be incorporated against the states, and he asked the Supreme Court to decide whether he’s right. So it might seem like Ramos had teed up your run-of-the-mill incorporation case, much like Timbs v. Indiana from last term. But the Court’s decision—which ultimately agreed with Ramos and overturned precedent in the process—is anything but routine. It has so much more to unpack and discuss.

This article will first analyze the Court’s answer to Ramos’ basic incorporation question, which will include familiarizing the reader with a related (and now-overturned) case from 1972. It then will canvass Justice Kavanaugh’s concurrence, in which he elucidates his views of stare decisis.

A Unanimous Jury

Question(s): Does the Sixth Amendment require a jury to give a unanimous guilty verdict, and if so, does this requirement apply to the states?

The majority’s answer: Yes and yes. Justice Gorsuch writes the majority opinion, and he’s joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh.

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” Now, nothing here says anything about a unanimous verdict. So how do we know the Sixth Amendment guarantees one? Gorsuch pulls out his originalist pen, with three more-liberal Justices and freshman Justice Kavanaugh in tow. Whether one looks to early British common law, to legal treatises written around the time of America’s Founding, or to the laws of the early American states, Gorsuch says the answer is “unmistakable”: the phrase “trial by an impartial jury” always assumed the jury would have to unanimously render a guilty verdict.

Juror unanimity surfaced in 1300s England and soon became the standard rule for common law criminal trials, Gorsuch says (citing his sources). The influential jurist William Blackstone wrote in 1769 that a defendant could not be convicted unless “the truth of every accusation . . . should . . . be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion” (emphasis added). Put differently, a “verdict, taken from eleven, was no verdict” at all. Six early American state constitutions followed suit, containing explicit language that jury unanimity was a prerequisite to conviction. And even in states whose constitutions didn’t overtly say so, the actual operation of jury trials demonstrated that those states ascribed to the unanimity requirement too.

So, against this nearly 500-year “backdrop,” along came James Madison and the Bill of Rights in 1791. Gorsuch says that if the phrase “trial by an impartial jury” meant “anything at all” when Madison put pen to paper, “it surely included a requirement as long and widely accepted as unanimity.” And American legal treatises immediately after the Bill of Rights’ adoption agreed. Nathan Dane’s 1824 Digest of American Law reported as fact that the U.S. Constitution required unanimity in criminal jury trials for serious offenses,” Gorsuch notes (again, citing his sources). So did the preeminent Justice William Story in his seminal Commentaries on the Constitution, and so did early tomes of criminal procedure.

More importantly, this sentiment didn’t cease during the nineteenth century or thereafter. In Thompson v. Utah (1898), the Supreme Court plainly wrote that a criminal defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons” (emphasis added). In 1930, the Court in Patton v. United States underscored the unanimity requirement’s common law history: the Sixth Amendment confers a right to “a trial by jury as understood and applied at common law . . . includ[ing] all the essential elements as they were recognized in this country and England when the Constitution was adopted”; and this right requires “that the verdict should be unanimous.” You’d be hard-pressed to find a clearer statement. Andres v. United States (1943) reaffirmed these points, noting that a unanimous jury is required whenever the Sixth or Seventh Amendments are in play.

Based on this overwhelming body of evidence, Gorsuch concludes that the Sixth Amendment’s phrase, “trial by an impartial jury” implicitly includes the unanimous jury requirement. And since the Jury Trial Clause has been incorporated against—is applicable to—the states under the Due Process Clause of the Fourteenth Amendment (see Duncan v. Louisiana (1968)), the unanimity requirement applies to the states too.

Here is where the typical incorporation-doctrine case would end. After all, Gorsuch’s opinion has now hit each of the usual points found in a Supreme Court decision and has answered the legal questions presented. But this marks only page 7 of Gorsuch’s 26-page opinion. Instead of concluding, Gorsuch asks the question many of you may be wondering: How have Louisiana and Oregon’s nonunanimous laws “managed to hang on for so long?”

His answer: There was a “strange” development in 1972. In Apodaca v. Oregon, the Court confronted Oregon’s nonunanimous-jury statute—and upheld it. Yes, that’s right, upheld it. In a “badly fractured set of opinions,” Gorsuch says, a plurality of the Court wriggled out of this long legal history, letting Oregon and Louisiana’s laws stand. How? Well, Gorsuch is glad you ask.

Four Justices in Apodaca “would not have hesitated” to incorporate the unanimous-jury requirement against the states and wipe Oregon and Louisiana’s statutes off the books, Gorsuch writes. But four other Justices held differently. Instead of framing the case’s question as a straightforward, “is-this-clause-incorporated” inquiry, they reframed the question as whether juror unanimity serves an important “function” in “contemporary society,” says Gorsuch. Using a cost-benefit analysis, they thought not, and upheld the non-unanimity laws in as many words. Now, this accounts for eight Justices. So where’s the tie-breaking ninth?

Enter Justice Lewis F. Powell, Jr. Justice Powell tried to compromise and split the ends, but this ended up just making things worse. “On the one hand,” Gorsuch explains, “Justice Powell agreed that, as a matter of ‘history and precedent . . . the Sixth Amendment requires a unanimous jury verdict to convict.'” But on the other hand, “he argued that the Fourteenth Amendment does not render this guarantee against the federal government fully applicable against the States.” This is Justice Powell’s “dual-track” incorporation philosophy: a Constitutional right can mean different things depending on whether it’s invoked against the federal government or the states. Justice Powell applied that philosophy in Apodaca even though the Court eight years earlier had dismissed the idea that the Fourteenth Amendment casts to the states only a “watered-down, subjective version of the individual guarantees of the Bill of Rights.” (Or, in Gorsuch’s words, a “mutated and diminished” version.) But, “unwillin[g]” to follow that precedent, Powell cast the tie-breaking fifth vote to uphold the non-unanimity statutes, Gorsuch writes in a disappointed tone.

You might wonder whether such a fractured case like Apodaca is binding precedent.  You’d be spot on, in Gorsuch’s mind. In other words, what exactly is the “holding” of Apodaca? In short, says Gorsuch, no one really knows; “no one has found a way to make sense of it.” In the years since Apodaca, the Court has seesawed about whether it really holds precedential force (see, e.g.McDonald v. City of Chicago (2010), saying Apodaca is “unusual” and an “exception”), and yet, at the same time, has continued to underscore the historical backdrop of juror unanimity, Gorsuch points out.

But in the grand scheme of things, it’s irrelevant to Gorsuch whether Apodaca is actually binding precedent (and thus would have to be overturned) or is simply a strange outcast (and thus can be ignored). Looking back now, it’s clear to Gorsuch that whatever the status of Apodaca, it’s no longer good law (if it was even law at all); it flouts the centuries-long history of juror unanimity. Therefore, Gorsuch holds that the Sixth Amendment’s “trial by an impartial jury” clause (1) implicitly includes the unanimous-jury requirement, and (2) applies to the states. Apodaca is a wart-like relic, either tossed aside (if it isn’t precedent) or overruled (if it is).

Justice Sotomayor authored a short concurrence. She agrees with Gorsuch’s holding, but she is more explicit about what she thinks the Court should do with Apodaca. She obliquely thinks Apodaca is precedent, but plainly says it shouldn’t be any longer. “[O]verruling precedent here is not only warranted, but compelled,” she declares. Apodaca is a universe of one—an opinion uniquely irreconcilable with not just one, but two, strands of constitutional precedent well established both before and after the decision.” Moreover, stare decisis is at its “nadir” when fundamental constitutional protections are involved—especially in the context of criminal procedure. The jury trial right is among the most essential of those protections, she says. Thus, Apodaca must be overruled. And as for Oregon and Louisiana’s laws? They are “fully—and rightly—relegated to the dustbin of history.”

Justice Kavanaugh also agrees that Apodaca should be overruled. It’s “egregiously wrong,” “causes significant negative consequences,” and “overruling [it] would not unduly upset reliance interests,” he says. So he joins Gorsuch’s majority opinion in this respect. He then goes on to expound his views of stare decisis (more on that below).

Justice Thomas concurred in the judgment. He agrees that the Sixth Amendment requires unanimous guilty verdicts and that it should apply to the states. But he would incorporate the requirement via the Privileges and Immunities Clause of the Fourteenth Amendment, not the Due Process Clause as Gorsuch does.

At last, we have arrived at Justice Alito’s dissent (joined by Chief Justice Roberts and Justice Kagan). In short, Alito would hold that (1) Apodaca should not be overruled, (2) Apodaca controls the outcome of this case, and therefore (3) Oregon and Louisiana’s non-unanimous jury statutes should be upheld.

Alito first discards the idea that Apodaca may not even have precedential force (an idea which, as we know, Gorsuch toys with). Even though Apodaca didn’t have a majority opinion, it still had a holding with which five Justices agreed: “[W]hen (1) a defendant is convicted in state court, (2) at least 10 of the 12 jurors vote to convict, and (3) the defendant argues that the conviction violates the Constitution because the vote was not unanimous, the challenge fails,” Alito writes. In other words, five Justices in Apodaca agreed that the Sixth Amendment does not guarantee a right to a unanimous jury verdict as applied to the states. Even though those five disagreed on why, that doesn’t matter in Alito’s mind. That result itself is precedent, he says, and it’s “impossible to see how a full-blown decision of this Court reaching [such a] result can be regarded as a non-precedent.” 

Next comes the best arrow in Alito’s quiver, the main reason why the Court should invoke stare decisis and uphold Apodaca. For 48 years, Oregon and Louisiana have relied on Apodaca to conduct “thousands and thousands of trials under rules allowing non-unanimous verdicts,” Alito points out. But because of the Court’s decision today, “those States face a potential tsunami of litigation on the jury-unanimity issue.” Big problem. In Oregon, for example, defendants can challenge their conviction if there was “plain error” during the trial. So, the state says, it may have to retry “thousands” of convicted criminals—indeed, a tsunami with the potential to overwhelm state courts and their limited staffs and resources.

The majority tries to say this isn’t the fate worse than death Alito thinks it is. After United States v. Booker (2005), for example, up to 800 federal convicts were eligible for resentencing. But Alito doesn’t find this reassuring. The process of resentencing a convicted defendant isn’t comparable to the process of redoing an entire criminal case. First, a sentencing hearing takes place often in one day. Criminal trials, on the other hand, can last weeks. Moreover, with resentencing, a judge merely has to reconsider the length or type of sentence based on the facts that were established at trial. With a retrial, however, all the facts are gone. The state’s prosecuting attorneys and the defendant’s counsel have to put together the case anew, track down and call witnesses, complete voir dire, etc. It’s a complete do-over of a criminal case from scratch—and potentially thousands of them in Louisiana and Oregon.

What’s the majority’s response to this? Essentially, Alito says, it’s: don’t worry about it. “[T]he application of today’s decision to prisoners whose appeals have ended should not concern us,” Alito says of the majority opinion; “[t]hat question, we are told, will be decided in a later case.” How reassuring. This “massive” consequence, Alito says, strongly counsels in favor of upholding Apodaca under principles of stare decisis.

For these reasons, Alito would adhere to stare decisis, apply Apodaca, and uphold Oregon and Louisiana’s non-unanimous jury statutes.

Justice Kavanaugh on Stare Decisis

Justice Kavanaugh’s 18-page concurrence gives readers the first glimpse at his views on overruling precedent. His position can be summed up as follows: There is a “high” but “not insurmountable” bar for overruling precedent. To clear this bar, the Court must find a “special justification” for overruling a prior case. Three criteria should be used to determine whether that “special justification” is present: first, whether the prior decision was “egregiously wrong”; second, whether the prior decision “caused significant negative jurisprudential or real-world consequences”; and third, whether overruling the prior decision would “unduly upset reliance interests.” These criteria are not meant to be a bright-line test—that is, Kavanuagh’s framework is not meant to operate such that if, say, two of the criteria are met but not all three, the Court is barred from overruling the prior case. The framework is an aid, something to guide the Court when it considers whether to abide by the dictates of stare decisis.

Kavanaugh begins by detailing the long history of respect for the principle of stare decisis. The phrase is derived from the Latin, stare decisis et non quieta movere, or “stand by the thing decided and [do] not disturb the calm,” in Kavanaugh’s translation. The importance of stare decisis was recognized by William Blackstone in 1765 and Alexander Hamilton in Federalist No. 78, before it was ensconced as a fundamental tenet of the judiciary by the Supreme Court.

That said, stare decisis is not an “inexorable command,” Kavanaugh says (quoting Payne v. Tennessee (1991)). Indeed, “in just the past few Terms, every current member of this Court has voted to overrule multiple constitutional precedents” (citing his sources). Moreover, some of the Court’s most consequential (and celebrated) decisions in history overruled precedent, including West Virginia Bd. of Ed. v. Barnette (1943), Brown v. Board of Education (1954), Baker v. Carr (1962), Miranda v. Arizona (1966), Brandenburg v. Ohio (1969), Batson v. Kentucky (1986), and Obergefell v. Hodges (2015), to name just a few. So, the “difficult” question is not whether, but when to overrule precedent.

To begin his answer, Kavanaugh first distinguishes statutory cases from constitutional ones. In statutory cases, stare decisis is “strict,” he says—in other words, the Court should be very hesitant to overturn statutory precedent. This is because “Congress and the President can alter a statutory precedent by enacting new legislation,” Kavanaugh explains. So, the Court’s practice historically has been to reaffirm statutory precedent—even if it’s possibly wrong—and leave the “updating or correction of erroneous statutory precedents to the legislative process.” This, however, is all he has to say on stare decisis vis-à-vis statutory cases.

With constitutional precedent, however, stare decisis can be more “[]flexible,” Kavanaugh argues. The Court’s interpretation of the Constitution can be changed only by constitutional amendment (an astronomically high mountain to climb today) or by the Court overruling its prior decisions. In such circumstances, the Court “must balance the importance of having constitutional questions decided against the importance of having them decided right,” Kavanaugh says (quoting Chief Justice Roberts’ concurrence in Citizens United v. Federal Election Comm’n (2010) (emphasis in original)).

So, here’s where we stand so far: Kavanaugh makes clear that “adherence to precedent is the norm.” And he suggests the Court has a little more leeway to depart from this norm when constitutional law is involved than when statutory law is. So, what’s required for the Court to overrule a constitutional precedent? Kavanaugh answers: a “special justification” or “strong grounds.” In other words, something “over and above the belief that the precedent was wrongly decided” (quoting Allen v. Cooper, decided this term).

So, what qualifies? Kavanaugh does give his answer, but he first notes all the different answers the Court has given throughout history. First, he counts a total of seven different factors regarding stare decisis that the Court has recognized throughout the years: (1) the quality of the precedent’s reasoning; (2) the precedent’s consistency and coherence with previous or subsequent decisions; (3) changed law since the prior decision; (4) changed facts since the prior decision; (5) the workability of the precedent; (6) the reliance interests of those who have relied on the precedent; and (7) the age of the precedent.

The problem, Kavanaugh says, is that the Court has never “establish[ed] any consistent methodology or roadmap for how to analyze all of the[se] factors taken together.” This is why so many individual Justices have often disagreed about whether a certain case permits them to put stare decisis to the side.

So, Kavanaugh attempts to do just that—create a roadmap that he and (he hopes) the Court will use in cases implicating stare decisis. Those seven factors all collapse into “three broad considerations,” Kavanaugh says, which should guide a stare decisis inquiry when a constitutional case is at stake. To be sure, Kavanaugh’s proposal isn’t a three-pronged test; it’s not a formula along the lines of, “if a precedent passes the first two considerations but fails the third, it shouldn’t be overruled.” It’s merely three separate guidelines meant to aid (and reel in) the Court’s thoughts.

First, is the prior decision not just wrong, but grievously or egregiously wrong? In other words, Kavanaugh doesn’t think a “garden-variety” error is enough to depart from stare decisis (as opposed to Justice Thomas, for example). Instead, the “precedent must be egregiously wrong as a matter of law” before the Court may choose to overrule it. Now, what constitutes “grievously” or “egregiously” wrong? Kavanaugh doesn’t give a straight definition, but he does list examples of cases that, he thinks, qualify. Two of them are Korematsu v. United States (1944), which upheld Japanese internment during World War II, and Plessy v. Ferguson (1896), which upheld racial segregation. These were “egregiously wrong when [they were] decided,” Kavanaugh says. A third, Nevada v. Hall (1979) (dealing with state sovereign immunity; overruled last term), was “unmasked as egregiously wrong based on later legal or factual understandings or developments.” Again, Kavanaugh doesn’t explicitly say why Korematsu, Plessy, and Hall meet his “egregiously wrong” standard, but he does suggest it’s because of factors 1-5 above.

Second, has the prior decision caused significant negative jurisprudential or real-world consequences? Here, Kavanaugh incorporates factors 2 (workability) and 5 (consistency and coherence with other decisions) above. He also says the Court should “scrutinize the precedent’s real-world effects on the citizenry, not just its effects on the law and the legal system.” As examples, Kavanaugh again cites Plessy. He also adduces Minersville Sch. Dist. v. Gobitis (1940), which required students in public schools to salute the American flag even in spite of religious liberty interests (overruled three years later in Barnette).

Third and finally, would overruling the prior decision unduly upset reliance interests? In other words, how large an impact does overruling the precedent have on parties or states that have relied on that decision? If a case was decided just three years ago and applies narrowly to, say, a specific class of defendants invoking a special appellate procedure, this may not “unduly upset” those defendants’ reliance interests. But if a case has been on the books for 100 years and implicates sweeping First Amendment issues, now the Court might be faced with a totally different story. At any rate, Kavanaugh says this consideration should “focus[] on the legitimate expectations of those who have reasonably relied on the precedent.” Notably, however, Kavanaugh does not list any jurisprudential examples.

To sum up these three considerations: The first asks, how wrong is the precedent as a matter of law? The second asks, what have been the negative consequences of that precedent, both within the legal field and in broader society? And the third asks, how would overruling the precedent affect those who have relied on it? Taken together, Kavanaugh writes, this trio “provide[s] a structured methodology and roadmap” for determining whether to overlook stare decisis—an inquiry which, in Kavanaugh’s mind, has been lacking any structured methodology or roadmap thus far.

At last, we get to see Kavanaugh’s framework in practice; part two of his concurrence applies it to Apodaca.

First, is Apodaca “egregiously” wrong? Kavanaugh answers yes and follows the majority opinion’s lead. First, the early common law, the Framers’ intent, and pre-Apodaca cases all make clear that the Sixth Amendment requires a unanimous jury. Next, the Fourteenth Amendment’s Due Process Clause incorporates the jury trial right against the states. It follows that state law defendants enjoy the right to a unanimous conviction. Since Apodaca held oppositely, it does not conform to this long legal history and Supreme Court jurisprudence (implicating factors 1 and 2 above). Thus, Apodaca‘s holding is “egregiously” wrong, Kavanaugh says.

Second, has Apodaca caused significant negative consequences? Again, that’s a “yes” to Kavanaugh. Advancing from the premise above—that the Constitution requires a jury to unanimously convict a state defendant—Apodaca “sanctions the conviction at trial or by guilty plea of some defendants who might not be convicted under the proper constitutional rule,” Kavanaugh says. And as we read in Alito’s dissent, there may be thousands of defendants in Oregon and Louisiana who were convicted on Apodaca‘s watch—improperly convicted (procedurally speaking), that is.

Interestingly, however, Kavanaugh doesn’t stop there. He then discusses at length the racially discriminatory origins of non-unanimous jury laws. In Louisiana, for example, non-unanimous juries were codified in the state’s constitution in 1898—just two years after the Court’s infamous decision in Plessy. In doing so, Louisiana sought to “establish the supremacy of the white race,” and its 10:2 jury law was the means to do just that. In a case where a black defendant is tried before a twelve-member jury of whom one or two are black, Louisiana’s 10:2 jury provision effectively “silence[d] the voices and negate[d] the votes of [the] black jurors,” Kavanaugh explains.

To be fair, this is a curious addition to Kavanaugh’s opinion. He’s absolutely right about the abominable “backdoor” effects of the Jim Crow-esque 10:2 jury laws. But what’s interesting is that this, per se, doesn’t fall neatly into the second prong of Kavanaugh’s framework—or, for that matter, into any of the seven stare decisis factors identified above. This historical evidence certainly spells disaster for the laws if they were challenged under, say, the Equal Protection or Due Process Clauses. In other words, if the present inquiry concerned the negative effects of the underlying jury statutes at issue, there’d be a clear answer. But that’s not the inquiry right now; the inquiry is about the negative effects of Apodaca. So what does this history lesson have to do with Apodaca‘s negative consequences?

On the one hand, one answer might be that instead of stopping these discriminatory laws in their tracks, Apodaca gave them the green light, permitting their “negative consequences” to continue. But this answer just collapses into what Kavanaugh originally said: Apodaca “sanctions the conviction at trial or by guilty plea of some defendants who might not be convicted under the proper constitutional rule.”

On the other hand, Kavanaugh’s own answer seems to go beyond the second part of his framework. He says: to answer the question at hand—whether to overrule Apodaca based on its negative effects—the “Jim Crow origins and racially discriminatory effects . . . of non-unanimous juries in Louisiana and Oregon should matter”—and, “in [his] respectful view,” “should count heavily in favor of overruling.” That’s a curious statement. Is Kavanaugh saying that, when a Court weighs the negative effects of a prior case for stare decisis concerns, the context of the laws at issue in that case is relevant? (Or, the negative effects of the laws themselves are relevant?) If so, that seems to expand the scope of his second stare decisis factor.

Regardless, Kavanaugh thinks Apodaca‘s negative effects in the world of criminal procedure counsel heavily in favor of overturning. Now to the third and final part of his framework:

Would overruling Apodaca unduly upset reliance interests? Survey says, “no.” The only two states who have relied on Apodaca are Louisiana and Oregon (all other states require unanimous convictions). To Kavanaugh, it “will be relatively easy going forward for Louisiana and Oregon to transition to the unanimous jury rule.” It’s true (as Alito notes) that many criminals in those states will be eligible for a new trial. But Kavanaugh would “count that a small price to pay for the uprooting of this weed” (quoting Justice Antonin Scalia’s concurrence in Hubbard v. United States (1995)).

Thus, to Kavanaugh, all three parts of his stare decisis framework weigh in favor of overruling Apodaca. It is “egregiously wrong,” has had “significant negative consequences,” and overturning it would not “unduly upset reliance interests.”

It’s always interesting to read the first few opinions a new Justice writes after taking the bench. Perhaps Kavanaugh saw Ramos as the launchpad for his personal jurisprudence (at least in the stare decisis realm). He’s laid out a comprehensive, structured, three-part framework to guide his consideration whether to overrule precedent—even if it’s not totally airtight (i.e., the second part of the framework). Here are the questions you might be left with: when will he use it next, and who will sign on to it? Time will tell.

Photo Credits: SIS International Research

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