A little over a year ago, in Ramos v. Louisiana, the Supreme Court held that under the Sixth Amendment a conviction of a serious criminal offense cannot be obtained without a unanimous jury verdict, and that this meaning of the Sixth Amendment is fully incorporated against (that is, applies fully to) state courts as well as federal courts by virtue of the Fourteenth Amendment. Justice Kagan dissented in Ramos, concluding the Court had misapplied principles of stare decisis in jettisoning the Court’s previous ruling in 1972 in Apodaca v. Oregon—where the Court had upheld a state non-unanimous criminal verdict—because of the “enormous reliance interests” Apodaca had generated. As a result of Ramos, the two states that had been permitting and using non-unanimous jury rules for criminal trials—Louisiana and Oregon—were required to retry (or let free) the several hundred convicted persons in those states whose juries were not unanimous and whose cases were still on direct appeal.
Last month, in Edwards v. Vannoy, the Court ruled that states need not apply the rule announced in Ramos (that verdicts in serious criminal cases need be unanimous) retroactively, that is, to cases that (at the time of Ramos) had already run through their direct appeals and were being brought in so-called federal collateral review, that is via habeas corpus proceedings. Again, Justice Kagan dissented, and again invoking stare decisis as a basis, observing that because “[n]ow . . . Ramos is the law, stare decisis is on its side. . . [and] the decision [should be taken] on its own terms, and give[n] all the consequences it deserves.”
As a matter of stare decisis and reliance interests, she got it wrong both times.
As I have observed before, although it makes little sense to say (as the Court sometimes does) that the Court needs a “special” reason to correct a past mistaken interpretation of the Constitution above and beyond the past ruling’s wrongness (and stare decisis can do meaningful work only when the past ruling was wrong)—because such a “special justifications” approach would prevent error correction even when no one has detrimentally relied on the past erroneous ruling—certainly there are instances in which detrimental reliance suggests it is more important to be consistent than to be correct.
But when we focus—as the Court should be doing as a general matter and in particular cases where it considers constitutional stare decisis—on the appropriate contours of the reliance concept, we see that Justice Kagan’s invocation of reliance is wrong-headed in both the unanimous-jury-verdict cases in which she dissented. To be sure, as Justice Thomas’s opinion for the Court a few years ago in Franchise Tax Board v. Hyatt rightfully observed, when a past case is overruled, litigants who relied on that precedent may be harmed in that they incurred litigation expenses defending the mistaken precedent (and presumably the lower court ruling that had respected that precedent.) Yet, he said, consistent with the Court’s general focus on the big picture and not on protecting individual litigants, these “case-specific costs are not among the reliance interests that” count in deciding whether the Court should “adhere to an incorrect resolution of an important constitutional question.”
More importantly, it is not even clear that these litigation expenses count as true detrimental reliance worthy of protection in the first place. Why? Because the reliance that must be protected via stare decisis—and that is protected in common law fields — is not reliance that leaves you surprised or disappointed, but reliance that leaves you worse off than you would have been had the earlier event—in this setting the mistaken earlier ruling — never occurred. That is what is meant by “detrimental,” a word that is key to understanding most aspects of legal reliance that is unfortunately missing from much of the Court’s stare decisis analyses.
Applying that notion to the litigation costs Justice Thomas discussed, we see that the litigant who expended money defending a wrong prior ruling may very well not be in a worse position than she would if the earlier ruling had not issued, because it is still quite possible she would be arguing (and litigating) for that position even if it were not the (current) law of the land. We just don’t know—the answer would depend on the underlying conduct that the wrongheaded ruling encouraged or discouraged, and what options to that conduct were on the table for litigants who care about the issue.
And applying this notion to the unanimous-jury-verdict cases, we see that Justice Kagan gets it wrong. What were the reliance interests at issue in Ramos? How could the state(s) argue that they would be worse off under a unanimous-jury-verdict rule today (if that be the correct constitutional interpretation of the Sixth Amendment and incorporation, points I do not take up today) than if Apodaca had never been decided? Certainly the reliance cannot take the form of the notion that states will be able to convict fewer people under a unanimity regime than under a rule permitting non-unanimity, or that convictions are more costly to obtain if they require unanimity. Those are costs to be sure, but they are the costs the (ostensibly correct) constitutional rule requires. Instead, the states can argue that they are worse off than they would have been absent Apodaca only insofar as—with respect to persons on direct appeal, the only ones at issue in Ramos—they could have tried and convicted those several hundred people who were convicted by non-unanimous verdicts under a unanimity rule the first time around, they will have to expend more resources by trying those folks twice rather than once (and perhaps some of those who would have been unanimously convicted had that been the rule in place the first time around will not be convicted because witnesses will have died or memories will have faded.) Non-trivial reliance, but not a huge deal either. So if jury unanimity in state verdicts is required by the Sixth and Fourteenth Amendments (again, questions I don’t engage but that weren’t the basis of Justice Kagan’s stare decisis reasoning), then there was no reason to retain Apodaca.
What about this month’s ruling in Edwards? Would applying Ramos retroactively harm states that reasonably and detrimentally relied on Apodaca? (And while the question whether to apply a new ruling retroactively is not technically the same doctrinal question as whether to overrule a past ruling, the two queries are very analytically similar, because they both ask how much of a past, mistaken ruling should continue to govern today, in light of detrimental reliance on it.) There is no doubt that applying Ramos retroactively would impose high costs on states that detrimentally relied on Apodaca. Having to retry tens if not hundreds of thousands of people whom a state might have convicted the first time around under a unanimity rule had such a rule been in place is tremendously expensive, to say nothing of the many defendants who would have been convicted unanimously years ago had that been the governing rule but who might not be convicted today because of lost evidence, dead witnesses, and stale memories. And yet here—where detrimental reliance by states is significant—Justice Kagan invokes stare decisis (that is, to give broad effect to the Ramos rule now on the books) to meaningfully hurt states for their reasonable reliance on Apodaca. This doesn’t make sense if detrimental reliance is one of the keys to understanding stare decisis.
In this regard, Justice Kagan and others on the Court need to identify what they mean by reliance when they invoke it in these settings. Justice Breyer in Hyatt did so a few years ago for himself and three Justices who dissented from the Hyatt Court’s decision to overrule a previous case, but in ways that were pitched at way too high a level of generality. He wrote:
The people of this Nation rely upon stability in the law. Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives. Each time the Court overrules a case, the Court produces increased uncertainty. To overrule a [case] is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay.
Thus, for Justice Breyer and those who joined his Hyatt dissent, promoting reliance at the highest level of generality is the goal, and all instances of overruling problematically undermine that objective. But that can’t be right. The explanations the Court offers in deciding to overrule past cases likely matters more—in promoting the reliance we care about—than the frequency with which past cases are revisited. And if this supercharged version of stare decisis reigned, then the Court couldn’t easily overrule (or at least justify overruling) very wrong-headed cases like Plessy v. Ferguson (that upheld racial caste) or Bowers v. Hardwick (that permitted criminalization of same-sex sexual activity) to name just a few of dozens if not hundreds of celebrated overrulings.
Instead, the cognizable reliance has to be more narrowly defined, and has to clearly distinguish true detrimental reliance from mere expectancy. Everyone who likes a past ruling might expect that this past triumph—whether constitutionally deserved or not—will persist, and they may build those expectations into their mindset. White supremacists probably expected Plessy v. Ferguson’s regime to continue forever. As did homophobic proponents of the law upheld in Bowers v. Hardwick. But that doesn’t mean they relied in a way we need to protect. As noted above, the core of reliance (in common law fields) is that it leaves you worse off than you would have been had the earlier event never occurred. Sometimes, as in contract law, expectation of the benefit of a bargain may often converge with reliance on the deal, insofar as a contracting party may, in reliance on one deal, turn down other deals that would have generated the same benefits. Indeed, in contract settings we think that happens with such overwhelming frequency that we assume it to be true—and give victims of contract breaches the benefits of their bargains—as a matter of course. But in many areas of constitutional law, it is not clear that expectations lead to forgone opportunities and thus not clear that conventional reliance principles warrant the maintenance of rulings that we now think—with the benefit of better understandings of the Constitution—were fundamentally mistaken.
