Stare decisis is not “an inexorable command.”1 But the question of when and whether to overrule precedent frequently vexes the Justices. Last Term, in Ramos v. Louisiana,2 the Court overruled Apodaca v. Oregon3 and determined that the right to a unanimous jury conviction is incorporated against the states.4 The immediate ramifications of Ramos are limited: Louisiana voted to eliminate nonunanimous jury convictions for felony cases after 2019, leaving Oregon as the only state to retain them.5 Instead, Ramos’s lasting influence may be to further problematize the much-maligned Marks6 rule. The Marks rule establishes that when the Court fails to generate a majority opinion in a case, “the holding may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”7 In Ramos, the discussion of the Marks rule served to deepen an unresolved circuit split on when the rule properly applies. Instead of issuing yet more conflicting dicta that will confuse lower courts, the Court should have simply resolved the case on the merits, ignoring Marks altogether.
On Thanksgiving morning in 2014, a New Orleans official found Trinece Fedison’s dead body inside a trash can.8 Fedison had been stabbed and had “her throat ...slit.”9 The official immediately called 911.10 The police’s investigation eventually led them to Evangelisto Ramos, the defendant.11 Police collected a DNA sample from Ramos and established that it matched DNA found on the trash can and on the victim’s body.12 After interviewing Ramos and finding critical inconsistences in his answers,13 prosecutors charged him with second-degree murder.14
After the trial, ten jurors voted to convict Ramos, while two jurors voted to acquit.15 Under Louisiana law, the 10–2 vote was sufficient to convict.16 Ramos was sentenced to life imprisonment without parole.17 He appealed various issues to a state appellate court, which found that the evidence was sufficient to convict him,18 that prosecutors had not made improper statements at trial,19 that his conviction was not based on racial profiling,20 and that the Louisiana constitutional provision and statutory scheme that permitted nonunanimous jury convictions were constitutional.21 Consequently, the appellate court affirmed his conviction.22 Ramos petitioned for certiorari, asking the Supreme Court to review the constitutionality of nonunanimous felony convictions.23
The Supreme Court reversed.24 Writing for a majority in some sections and a plurality in others,25 Justice Gorsuch ruled that the Sixth Amendment requires conviction by a unanimous jury and that this right is incorporated against the states.26 The Sixth Amendment promises a trial “by an impartial jury” but contains no further textual detail.27 To discern its requirements, Justice Gorsuch looked to English common law history,28 state practices in the Founding era,29 and opinions and treatises written soon after the Founding.30 All sources confirmed that a jury must reach a unanimous verdict to convict a criminal defendant of a felony.31 And while the version of the Sixth Amendment that was ultimately ratified did not explicitly guarantee unanimity, Justice Gorsuch argued that the omission could just as likely demonstrate lawmakers’ attempt to avoid surplusage as it did the desire to abandon a well-established common law right.32 He recounted a long line of cases spanning a period of over a century in which the Court had described unanimity as a core part of the Sixth Amendment guarantee.33
Turning to incorporation, Justice Gorsuch maintained that there was “no question” that the “Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally.”34 The Court had repeatedly described the right to a jury trial as “fundamental to the American scheme of justice” and incorporated that right against the states under the Fourteenth Amendment.35 Moreover, previous opinions had held that “incorporated provisions of the Bill of Rights bear the same content when asserted against States as they do against the federal government.”36 As a result, unanimity was clearly necessary for state criminal convictions.37
On stare decisis concerns, Justice Gorsuch ruled that this unanimity requirement was clear even at the time that Apodaca was decided.38 Apodaca, which Ramos overturned,39 held that nonunanimous jury verdicts were constitutionally permissible.40 The case produced no majority opinion but rather reached its result via a 4–1–4 split.41 The Apodaca plurality reasoned that the Sixth Amendment did not require unanimity in either federal or state trials.42 In dissent, Justice Stewart argued that the Sixth Amendment required unanimity and that the Fourteenth Amendment fully incorporated that mandate against the states.43
In a separate concurrence, Justice Powell, writing only for himself, acknowledged that the Sixth Amendment required unanimity but, under his theory of “dual-track” incorporation, found that a single right can have different implications when asserted against the states than it does when asserted against the federal government.44 As a result, he voted to uphold the conviction in that case.45 But, as Justice Gorsuch noted, the other eight Justices conclusively rejected dual-track incorporation.46 Therefore, even when Apodaca was decided, the Sixth Amendment required unanimity in all settings.47
Joined only by Justices Ginsburg and Breyer, Justice Gorsuch even contended that Apodaca had no precedential force whatsoever.48 Typically, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’”49 This interpretive edict is commonly known as the Marks rule after the case that developed it.50 The challenge with Apodaca, Justice Gorsuch noted, is that it is unclear which opinion was the narrowest.51 Justice Powell’s opinion was flatly inconsistent with that of the Apodaca plurality.52 To view his concurrence as a precedent would require the Court to accept that “a single Justice writing only for himself has the authority to bind th[e] Court to propositions it has already rejected.”53 Complicating matters further, Louisiana appeared to disclaim reliance on Justice Powell’s concurrence as a governing precedent.54 So, while Apodaca resolved the issue for that particular conviction, it provided no binding legal principle that the Court was bound to apply in later cases.
Again joined by a majority of the Court, Justice Gorsuch reasoned in the alternative that even if Apodaca established a precedent, overturning it was warranted under the circ*mstances.55 Here, the Court relied heavily on the idea that stare decisis has the least force in the constitutional context.56 To justify overturning Apodaca, Justice Gorsuch held that the opinion was poorly reasoned and inconsistent with related and subsequent decisions. The Apodaca plurality spent “almost no time grappling with” the long history of explicit statements that the Sixth Amendment requires unanimity.57 And it did almost nothing to reckon with the racist origins of the state’s laws.58 Moreover, Apodaca sat uneasily with prior case law, relying on a dual-track theory of incorporation that was foreclosed even when it was decided and that the Court had since squarely rejected.59
Finally, writing for a plurality of four Justices, Justice Gorsuch maintained that reliance interests, the last consideration in overturning precedent, did not favor upholding Apodaca.60 Only Louisiana and Oregon allowed nonunanimous convictions,61 and Louisiana voted to abolish the practice for cases after 2019.62 Therefore, only a fraction of pending cases in two states might need to be retried.63 Justice Gorsuch acknowledged that defendants convicted by nonunanimous jury verdicts who had exhausted their appeals might try to collaterally attack their sentences.64 Those defendants could argue that this decision represented a “watershed” rule of criminal procedure that should apply to them retroactively.65 Justice Gorsuch stopped short of making an explicit judgment on retroactivity, however, stating only that the Court would benefit from adversarial presentation of the question in a future case.66
Justice Sotomayor concurred in all of Justice Gorsuch’s opinion except the part contending that Apodaca lacked precedential force and denying that the Marks rule applied to the instant case.67 Her opinion stressed three points. First, Justice Sotomayor maintained that Apodaca had precedential force.68 However, she argued that overruling Apodaca was not only warranted but also compelled because the decision was “uniquely irreconcilable” with two strands of constitutional precedent.69 Apodaca conflicted with both the long history of affirmations that the Sixth Amendment requires unanimity and the Court’s steadfast rejection of Justice Powell’s “dual-track” incorporation theory.70
Second, the interests at stake favored overruling precedent far more convincingly in this case than on other occasions in which the Court had overruled precedent.71 Here, in the context of criminal procedure rules that implicated fundamental constitutional protections, “stare decisis is at its nadir.”72 The Court should not hesitate to overturn precedent when “the State’s power to imprison” hung in the balance.73 Third, the racially biased origins of the Louisiana and Oregon laws should weigh heavily.74 While many laws are entangled with some history of racial bias, both the racial animus that originally motivated the law’s passage and the legislature’s failure to grapple with its legacy should diminish the status of precedents that uphold it.75
Justice Kavanaugh also concurred, expounding at length on his theory of stare decisis.76 Noting that every current member of the Court had previously voted to overrule precedent, Justice Kavanaugh reasoned that while adherence to precedent is typically desirable, special circ*mstances may warrant overruling it.77 His opinion laid out three criteria that he believed to be critical in evaluating whether to overturn precedent: (1) whether the prior decision was egregiously wrong, (2) whether it caused significant negative jurisprudential or real-world consequences, and (3) whether it would unduly upset reliance interests.78 Here, Justice Kavanaugh found that while Apodaca had precedential force, it was egregiously wrong; that it had resulted in the conviction of defendants who would otherwise walk free; and that the reliance interests in favor of upholding the decision were minimal.79 He made clear that the racist origins of the nonunanimity rule were “significant to [his] analysis” and strongly supported overruling Apodaca.80 As part of his analysis of Louisiana’s reliance interests, Justice Kavanaugh also addressed the retroactivity question: whether Ramos should apply to defendants whose convictions had already been finalized. In Justice Kavanaugh’s view, Ramos should not apply retroactively because it was neither a substantive rule of criminal law nor a “watershed” rule of criminal procedure.81
Concurring in the judgment alone, Justice Thomas argued that the unanimous jury requirement bound the states not through the Due Process Clause but through the Privileges or Immunities Clause.82 In so doing, he adhered to his longstanding skepticism of substantive due process, which he has described as a “legal fiction,”83 and to his unique view of stare decisis. Because the Court’s precedents indicating that the Sixth Amendment required unanimity were not “demonstrably erroneous,”84 they were entitled to deference under principles of stare decisis. And the Privileges or Immunities Clause included that requirement.85
Justice Alito dissented.86 He expressed outrage at the “ad hominem rhetoric” of the majority, noting that Louisiana had readopted the nonunanimity rule in the 1970s for ostensibly race-neutral reasons.87 He ridiculed the suggestion that Apodaca did not constitute a valid precedent, arguing that, even if the Court was not bound by its reasoning, it was surely bound by its result.88 He predicted that the Court’s decision would destabilize the Marks rule and the precedential value of plurality opinions.89 Further, the decision would raise the specter of overruling Hurtado v. California,90 another longstanding criminal procedure precedent that rejected incorporation.91 Finally, he warned that the rule advanced by the majority may well need to apply retroactively.92 If Apodaca never constituted a precedent, then the majority’s holding did not actually constitute a “new rule.”93 By that logic, Ramos could benefit defendants whose convictions had been finalized.94
The Marks rule intends to generate coherent precedent even when the Court could not create consensus. When the opinions that make up the majority are consistent, the rule applies without issue. But when the plurality and the concurrences conflict, circuit courts have split over whether the Marks rule even applies. The Court has routinely declined to answer this question, choosing to sidestep Marks’s applicability and instead resolve the underlying issue in cases that raise the problem. Yet Ramos makes matters even worse, generating more conflicting dicta on the scope of the Marks rule that will confound lower courts and muddle subsequent cases in which the Court will need to interpret Ramos. Ideally, the Court would have clarified the scope of the Marks rule once and for all; failing that, it should have avoided creating more confusion.
Lower courts have split on the appropriate scope of the Marks rule’s application.95 Theoretically, the justification for Marks is that the general encompasses the specific: a Justice who agreed with a case’s result on broader grounds would also agree with the result on narrower grounds. But this theory becomes strained when the plurality and concurring opinions that form the majority directly conflict, as they did in Apodaca. Recognizing this difficulty, the Ninth and D.C. Circuits have held that Marks undoubtedly applies when the plurality and the concurrence are “logical subset[s]” of each other, where the reasoning of one wholly subsumes the reasoning of the other and where the two opinions are logically consistent.96 If the plurality and the concurrence conflict, only then does confusion about Marks’s application arise. Where the plurality and concurring opinions are not logical subsets, the Ninth and D.C. Circuits have generally adopted the opinion that they determine is the most persuasive.97 By contrast, most other circuits have found that even in the event of a conflict, where the court can identify a narrowest opinion, the opinion should have binding force.98
The Supreme Court has had opportunities to resolve the question of when the Marks rule properly applies but has repeatedly declined to do so. In Grutter v. Bollinger,99 the Court explicitly recognized that lower courts had struggled to decide whether “[i]n the wake of [the Court’s] fractured decision in Bakke, ...Justice Powell’s diversity rationale,” expounded in a solo concurrence, “is nonetheless binding precedent under Marks.”100 Despite that acknowledgment, the majority avoided the Marks question and resolved the dispute on the merits.101 Similarly, in Hughes v. United States,102 faced with uncertainty about the force of Justice Sotomayor’s solo concurrence in Freeman v. United States,103 the Court resolved the statutory question rather than addressing Marks.104
Ramos did not follow this approach. Oddly, despite discussing Marks, the Justices did not generate a clear majority supporting any particular interpretation of the rule. Three main approaches dominated their discussion. First, the three-Justice plurality comprising Justices Gorsuch, Ginsburg, and Breyer seemed to implicitly adopt the logical-subset rule. Their view appeared to be that when the narrowest opinion conflicts with precedent or with the other opinions required to form a majority, the Marks rule simply cannot apply.105
Second, the three-Justice dissent featuring Justice Alito, Chief Justice Roberts, and Justice Kagan affirmatively embraced the position that the Marks rule applies even when there is a logical conflict between the opinions required to form the majority. Justice Alito wrote that Marks applied to such a case so as to bind future courts in the result but not in the reasoning.106
Third, concurring Justices Sotomayor and Kavanaugh neither affirmatively endorsed nor rejected the logical-subset interpretation of Marks. On one hand, they both declined to join Part IV-A of Justice Gorsuch’s opinion, which discussed how the Marks rule did not apply when interpreting Apodaca.107 On the other hand, both Justices criticized Apodaca in ways that made it difficult to determine if, like the three-Justice dissent, they found Justice Powell’s solo concurrence to be the controlling opinion. Justice Sotomayor disparaged Apodaca for conflicting both with precedents indicating that the Sixth Amendment demands unanimity and with precedents rejecting dual-track incorporation.108 Similarly, Justice Kavanaugh argued that Apodaca conflicted with “two lines of decisions — the Sixth Amendment jury cases and the Fourteenth Amendment incorporation cases.”109
However, these criticisms of Sixth Amendment unanimity and dual-track incorporation do not both apply to any single opinion in Apodaca. Justice Powell’s solo concurrence may be criticized for endorsing dual-track incorporation, but it explicitly acknowledged that the Sixth Amendment required unanimity.110 To the contrary, the plurality opinion was flawed in rejecting the Sixth Amendment’s unanimity requirement, but it correctly rejected dual-track incorporation.111 As a result, it is difficult to discern which Apodaca opinion these Justices consider to be controlling. Correspondingly, it is not clear how they understand the Marks rule to apply.
Where does that leave the Marks rule? Three Justices appeared to endorse a narrow logical-subset application, three Justices explicitly affirmed a broad application, and three were equivocal.112 Marks now stands in an uncertain position. Quite apart from the direct criticism of the rule’s logic,113 there is now further uncertainty about its application. Whenever lower courts, bound by stare decisis, interpret a plurality opinion, they are compelled to continue revisiting the question of Marks’s applicability. To make matters worse, they have little guidance on how to do so from a Supreme Court that vacillates between ignoring Marks to resolve the underlying question and generating confusing and conflicting dicta on how it applies.114
Plurality decisions are becoming more common.115 Increased uncertainty over how to properly interpret them risks reigniting uncertainty over important, politically charged precedents that have generated reliance.116 Indeed, one of the underlying ironies of Ramos is that it is a “badly fractured”117 set of decisions articulating no consensus theory about how to interpret badly fractured opinions. Ideally, the Court would have conclusively resolved the split on Marks’s applicability and provided much needed guidance to lower courts. But where it cannot clarify, it should at least seek not to confuse. The Court should have resolved Ramos purely on its merits and left the murky Marks dispute for another case.
