tv Ramos v. Louisiana Oral Argument on Unanimous Jury Verdicts CSPAN October 16, 2019 8:04am-9:08am EDT
>> now the supreme court oral argument for ramos v. louisiana, , case on whether a unanimous jury verdict is constitutionally required in the criminal cases for federal and state courts. the supreme court now has through june 2020 to issue a ruling. this is one of our. >> we will hear argument next in case 18-5924, ramos v. louisiana. mr. fisher. >> mr. chief justice, and may it please the court.
last term in timbs against indiana this court reaffirmed the well-settled rule that incorporated provisions of the bill of rights apply the same way to the states as they apply to the federal government. taking that rule as they given, the state does not defend justice powell pivotal vote in the apodaca case. that we shouldn't flouted president at the time and is simply relegated to nothing more than isolated relic of an abandon doctrine. the states only defense in support of the judgment below is the sixth amendment does not require unanimity at all. that is not sick courts or in federal courts. this court should redact that argument because a court has said many times over many decades sixth amendment requires unanimous verdict to convict. in particular what the court has said is the sixth amendment right to trial by jury carries with it the essential common law and the, authorities are uniform, explicit, and absolute. unanimity is an absolute requirement to trial by jury. the reasons the common law
commentators gave that role resonate just as powerfully now as they did then. we are not prepared to take with someone's liberty unless a cross-section of the community uniform agrees that criminal punishment is appropriate. i don't think the state disputes that historical account or even that unanimity is central to the proper functioning of the jury trial right. what the state says are two primary things. first, the drafting history of the sixth amendment suggests the framers meant to dispense with that historical role, and second, that that historical requirement of unanimity is no more important than the 12 person both which this court said is not part of the 6 million in williams. let me start with the drafting history. we think for three reasons the status over red drafting history. first, as the court itself is said, we did not read into a deletion of language any meaning when there's no contemporary evidence that it was designed to
change the meaning of the provision. that's all the more true here because the contextual backdrop. the state talks about the fact many states at the time at trial by jury provisions in their own constitutions and correctly note some of those provisions explicit requires unanimity but some of them didn't in the rule was the same across all of those states so the thing the frames were taken from the context of the time would have been it doesn't matter whether you had unanimity in the provision. requires it either way. >> to give them, to be fair, even if you see something unanimity, some don't, and you have a draft this is unanimity, i don't understand why you take it out and then argue later, it doesn't matter whether within or not. why would he take it take it out? >> the best evidence, mr. chief justice, it got latched onto a debate about the vicinage requirement. what james madison did was take with all of the elaboration of
the right to trial by jury. the best example to respond is the pennsylvania constitution, which at the time of the fan required unanimity explicitly and then justin wilson amended,, rewrote the constitution in pennsylvania to take it out. justice wilson was one of the leading expositors of the common-law notion of trial by jury and the sixth amendment requiring unanimity. that was a lasting one to say about the drafting history. one would think that the framers had to dispense with 400 years of uniform practice that somebody would've said something about it. what you have is the reverse picket justice wilson bite of the constitution in founding talking great length about hiking high community is indispensable. justice in his counters you exactly same word indispensable. give any number of other law treatises at the time is gathered and a brace and a great in aclu brief that canvasses
history all reinforcing this notion. >> you are asking us to overrule apodaca, so would you to think about stare decisis. last term the majority was lectured pretty startling and a couple of the sense about the importance of stare decisis and about the impropriety of overruling establish rules. i'm thinking about the dissent in franchise tax board and the dissent in knick versus township of scott. very important consideration in considering stare decisis is reliance. it would be helpful to me if you could compare the reliance that's at issue here. louisiana and oregon have thousands of cases in reliance on apodaca. the court said this was okay. we've never suggested that it wasn't. we've denied cert and lots of cases so can you compare the reliance you with the relighting antis tax board and in knick?
>> i'd like to make both a legl comparison and a factual comparison. starting with a long it's important to note the state is climbed rely on apodaca but they are not defending the role of apodaca which is that the 14th amendment doesn't require states to have unanimous verdicts. they're asking the court to adopt a new rule of sixth amendment law that the court has never doubted her the court last term as you note in part of those disagreements, some justice of the same it's okay to come up and rehabilitate an old rule, that shouldn't virgo stare decisis value but here the state is acting for brando rule. >> we are not tied in deciding this case to the position that's taken by the state. we have a decision of this court, apodaca, and we could affirm it on a different ground from the one, the exact one this date as advance. i want you to complete what you were saying. >> let me give you three reasons why even if you take that as a
given, stare decisis shouldn't carry the day and then i'll turn to the facts. still sticking with the law, three things. justice bowels vote was an isolated note where there was no majority for the court and was indeed his vote was rejected by the other eight -- >> this is so unfair, mr. fisher but i ask you to take that out of your analysis? just pretend for the remainder of your analysis, i think that's an important consideration which i'm not quite sure how to think about but if you assumed, just any old 5-4 decision. >> i would move to my second point which the 14th amendment rule if adopted by majority, is a derelict in the law. it is an abandoned relic the past jurisprudence and you want to look further than last term in thames. you can look at the mcdonald's opinion and any number of other opinions on this court that say the same stance had to fly to
the state as the federal government. >> it would be an outlet. it would be something that says we have an exception here. we're going to treat this amendment different way. we tolerate a pretty significant degree of diversity in state criminal procedure, and this could just be one of those sorts of rules where we say there are occasional times where we think that the state gets to decide something on its own. and so yes, it's anomaly. usually we do look in stare decisis reason for anomalies but this is not the kind of anomaly that should concern us over much, because in general criminal procedure law is loaded with anomalies. >> justice kagan, let me respond one thing i hope is in fighting the premise but what i would say is if you look at the courts and corporation jurisprudence that is one place the court is not accepted anomalies and where the court said stare decisis is a very lower ab when it comes to state of the fundamental rules of the road of the bill of
rights. on that level it is different kind of situation in order stare decisis case. >> did thames in saint excessive fines clause applies to the states, recognize apodaca as an exception? recognized the sixth amendment was the one exception to complete incorporation? >> that's right, justice ginsburg and my argument today is even though that's been an exception for soldiers and shouldn't go forward. it doesn't have any footing in the law. >> what else have you got? >> let me turn to come i think you're asking me about convictions. this is another area where stare decisis actually action has ley than normal. that's because the court all we has been set of doctrines like the teague jurisprudence and the griffith jurisprudence that are themselves designed to give states are reliance interest in the past president from this
court. unlike the ordinary case can franchise tax board and other doctrines, you had this whole separate set of doctrines the state can invoke to support its reliance interest in the past convictions. >> we don't have a decision in your favor in this case would play out in collateral review, either in federal court or in state court. i can well envision seeing you up here in a term or two arguing this is a water, the rule that you're trying to persuade us to accept that it is a watershed rule of criminal procedure. do you think that's a frivolous argument? >> i don't think it's frivolous. the best thing statement to say for itself is that duncan itself when the court incorporated ine right to jury trial, duncan itself was not held to be retroactive. the core point that i'm making too today is in deciding whether to overrule a past case, absolutely reliance interests are at stake.
there are separate doctrines to protect those reliance interest, so that i don't think you should give them undue weight in this situation. i don't think the court has given those kinds of things undue weight in the past. i would direct the back to its mcdonald decision were catalogued all the times over the years in the course incorporation jurisprudence that is over will pass cases. i don't think there's any other area of law were stare decisis over the years has held less value than a corporation. >> what about the size of the jury, if we were to accept your argument, how or who would draw a distinction between this case and the precedents on size of a jury? >> justice kavanaugh, i think williams itself tells you how you would do that. it says the question under this sixth amendment is whether the feature at issue is an indispensable feature or an essential feature of the right to jury trial as we practice it in this country. what the court conclude in
williams after looking at historical sources was the remix. probably the better reading with a 12 person role was just a historical accident. that is a holding of this court that puts it on the other side of the ledger from the uniform, common-law authorities when comes to unanimity and upholding would be entitled to a stare decisis effect. >> mr. fisher, williams, i think, is a problem for you. if only six minds need to agree to convict of a criminal offense, why shouldn't can be enough? >> the key principle is not how many. it's the degree of agreement. so my proposition today is a 10-2 verdict is less guaranteed to be accurate and was guaranteed to be constant with the purposes of a a jury trialy 6-0 for it. >> your prefaced by saying it's a key part of the distinction you're trying to draw?
>> maybe it is the very distinction. >> i know but i guess i'm not sure that self apparent. i don't know whether you play out in game figure something but he asked the defendant what you want? do you want sex and have to agree across the board or do a 12 and had to convince -- is not apparent to me which i would take. >> mr. chief justice, county legal answer any practical answer? a legal answer, they unanimity required even if a six person for it more consistent and effect is the only consistent outcome with the purposes of the jury trial clause because the core purposes are effective deliberation towards an accurate decision and a cross-section of the community. remember what happened in louisiana and in oregon is that a cross-section of the community can be left out of and counseled out of those deliberations. that's very different than a 60 verdict when comes to why things happen in the jury room and the public confidence in that verdict. also give a practical answer to your question.
when louisiana was considering changing its lot edited to change the fall which arts event that it is also something that if think should be taken into account when comes to stare decisis that the museum has changed its law, during those deliberations was a prosecutor who testified and said he used to sometimes charge felonies instead of misdemeanors because it's easier to get 10-2 verdict that was to get a 6-0 verdict let's say i'm not entirely persuaded by your arguments about the distinction between unanimity and numbers between this case and williams. how to get anything else besides these functionalist arguments about the real great importance not unanimity and the relative lack of importance about numbers? >> what i would say to you is the text of the sixth amendment understood through its purpose distinguishes this case from williams. let me explain what a mean by that. the text of the sixth amendment says the defendant has right to trial by jury. they key is what does that phrase means? from history we know that that
phrase meant that not just the defendant got a jury, but that the trial by jury included the way the jury reached its decision. if we have a jury who hangs or can't reach a verdict, there is a mistrial. we don't even have trial by jury. jury. that's inherent in the term. what the court said in williams is there are going to be some features of the common law. imagine that the jurors all had to wear a particular color jacket to court. there's going to be certain incidental features of the right to jury trial that don't necessarily have to be read along with the sixth amendment. there would be things that happen to occur at, ball that wouldn't message of the book forward today. maybe which are driving it to some degree is i think there is an argument and a powerful argument made in williams that the 12 person required it shouldn't be thought of that way. there were some people who thought that 12 person required was a important feature. there were others who didn't.
lord coke and many other commentators thought 12 is just a pencil number. it does mean anything. already met in this case i think i what's the core meaning of the phrase trial by jury. >> do you think we would also have to overrule ludwig versus massachusetts if we overruled apodaca? that was not the case in which justice powell unusual approach to incorporation ended up being the deciding vote in the case. it was about a two-tiered jury system. >> that's right. all my position here today would tell you if you were to revisit that is that justice powell's vote in that case just like in this case doesn't set up a rule of law the court should hereto. you still have separate sixth amendment question which the court divided on and you would consider that case on its own terms. >> to be perfectly candid with you, i don't even know what the common law would say about the two-tiered jury system. that was a something court considered in that case.
>> you started off and then i told you to stop, but i thought i would give you an opportunity to do it again. what are we to make of this 4-1-4 reasoning of apodaca and what do you think the rule should be about stare decisis going forward? do you need a majority? do you just need a controlling role? what's the right way to think about that? >> i can say what i think and what the court has done. there are times where a single vote could be accorded stare decisis effect, particularly if it's comfortably a narrow ground within the marks rule. then you have other cases more like this where marx doesn't fit onto that system. the most recent time the court dealt with the situation like that was issues case where you had a 414 vote in the prior case and the court said will consider this issue fresh. the court did the same thing in seminole tribe. in similar tribe is a good example of the case that your
deep divisions within the court as with the substantive meaning of the 11th of meant was with justice souter said i do not begrudge the majority for considering this issue fresh because those the majority of the court that at present spoken to it. >> what about a party does to make decisions about how it's going to order its affairs in the wake of a decision that it wins what it does in a 4-1-4 decision? what is a party supposed to do? we won this case but we really can't rely on it because it has no stare decisis effect, and then what happens as the years go by and nothing happens, the court doesn't come back to that question? >> that at least is in the ordinary case, the party would have every right to rely on this court's decision, subject to the ordinary principles of stare decisis that were deciding. one thing that makes this case unusual is you would think if the party did rely on that prior
case it would come up and defend instead ask the court for a different rule. that tells you something about how discredited the fifth vote in this case is, which i think makes it almost a universe of one. i've looked and haven't that any of the case where somebody has come up to this court and said, i'm not even going to make an argument based on the provision of the constitution in which the previous decision rests. >> can i come back to the math question that was alluded to earlier? i must confess, i'm not myself capable of doing this math but somebody could. if you hypothesize a a jury pol with a certain percentage of jurors who were inclined to acquit, and you ask is there a greater likelihood of acquittal with a 6-0 verdict than a 10-2 verdict or if the state defense of a jury that's bigger than 12, 15-one, a 15 person jury, 19-
19-one, when we get to the point with the chance of acquittal is in favor of the non-unanimous rule, would that be unconstitutional? >> my rule is that anytime the state deviates from unanimity it is unconstitutional, so even if the state were to go beyond the number of 12. i think the reason why is because it's a different phenomenon in somebody disagrees in the jury room. i don't mean to be presumptuous that i've heard some justices of this court remark is the difference between a 90 opinion and 81 opinion. when someone puts reasonable good faith use of the table and requires an answer from others that sharpens one's thinking that leads to better results sometimes and in a jury room that would be -- >> you want to argue it would had to be as big as a granger a represent the criminal defendant you would rather say we want 600 is better for us than 21 to one.
perhaps it would be a number with argument would be difficult and i think what i would tell you is the history and tradition of this country makes it highly unlikely we'll ever see a system like that. what we have uniformly almost dropped the state is a ceiling of 12. you talked about a math problem and to think maybe it's also helpful to remind the court of the court's decision last term in flowers with the court talked about the math of peremptory challenges. you have a math problem here which is yet one or two members of minority on a jury, racial majority, a political minority, a religious minority, are we prepared to say those one or two votes can be utterly canceled out? >> to the racial origins of this will have an impact on how we think about stare decisis in this case? >> i think they deal. >> how should we factor those in? >> in a couple of ways. when you talk by reasonable reliance is from the state is perhaps justifiable to look at the origins of the law that it's
defending. more directly if you're asking whether justice powell's 14th amendment reasoning should stand, he didn't even consider this history. an usher is in front of the court and as the court had hasd many of the times like laquan mcdonald, like an pena-rodriguez, when reading provisions of the bill of rights against the states through the 14th amendment, history and purpose is a silly way to think that. >> you made a big deal of it in your brief. i thought you would abandon it or today. if another state what were to t the same statute that louisiana has tomorrow and did it for all of the legitimacy -- legitimate policy reasons that led such entities as the american bar association and the american law institute and lots of reputable scholars and the framers of the constitution of puerto rico and the people who made the rule in the united kingdom, all of which allow non-unanimous juries, if i was inactive for that reason that might be constitutional if
the statute is not and the oregon statute is not constitutional because of the origin that you attribute to? >> no, justice alito. let me make sure i'm clear with the court. we think that purpose breath could inform the courts decision-making. it could inform whether to stick with an old 14th amendment rule but we don't think it's essential to our sixth amendment argument and we think of the state have followed the old al i recommendation for the sixth amendment was incorporated that i will be making all the of the same argument to make your today. the thing i would leave you with before sit down for rebuttal is it is telling that no state has ever done that. the only two states that it ever deviated did so under circumstances where the cross-section of the community that the jury trial was designed to bring into the courtroom had changed. part of the design was to leave a part of the cross-section perhaps out of deliberations. >> you mentioned a couple of times earlier in your argument where the court has said that the decision is entitled to less
stare decisis effect because the parties have come into court and tried to kind of improve the reasoning, so the court has said, of the earlier decision. as they understood what you saying, this even goes beyond that. could you when why or is it the same as at? i've never like that argument. is your argument just the same thing? >> no. i think it's a step further. even if you believe parties ought to be entitled especially when dishman use between an old decision and a new one, to defend the old decision with the rhythms and the precedents and the ideas that intervened. for example, to take his like citizens united, perhaps become good at come in in the case and made other first amendment arguments in support of that statute in that case. here the state is not making a 14th amendment argument. that asking the court to adopt a rule, that the six minute to stop a car unanimous verdict.
five justices and apodaca square rejected that argument. so i think this is different in kind. >> it was unsettled until apodaca. the unanimity question was not settled until apodaca, right? because four of the justices thought unanimity was not required, four thought it was. so it was apodaca, the fifth vote being powell's vote. and set the president for you to require a unanimity in federal trials. >> let me say something about before apodaca and did after. before apodaca the quartets squarely held in the 1940s the sixth amendment requires a unanimous verdict. what i understood the justice probably be saying and apodaca was doing that justice whited said in a in a footnote and dun mcadoo, which is reconsidered
the old precedence. >> thank you, counsel. ms. mural. >> mr. chief justice, a may it please the court. we agree with petitioner this case presents two issues, whether whether the six a required unanimity, and if so whether that requirement applies to the state. the court should decide this case on the first issue because nothing in the text, structure, or history of the sixth amendment requires unanimous jury verdicts. nor has this court ever held that the framers wholesale adopted the common law. in fact, the court has expressly rejected that you with regard to the bill of rights and in williams. those correct holdings plus historical evidence that the
framers expressly rejected unanimity and the sixth amendment are fatal to petitioners request to add back words that the rejected in 1789. the reliance interest here are overwhelming. because the sixth amendment is not a code of criminal procedure, over -- for jew century states have adopted their criminal justice system to their particular circumstances, louisiana for the last 50 years has specifically relied on this court's express approval of the system that's a challenge here today can. we have 32,000 people that are currently serving time for serious crimes in each of these convictions would be subject to challenge it apodaca is reversed. overruling apodaca would strike at the foundation of widespread state practices that include indictment by information injuries of fewer than 12. the beauty of our system is that
people can change the rules. so if they now want to require unanimity, they can do so. they can amend their state laws, as louisiana recently did, or they can amend the federal constitution. the judgment and apodaca should be affirmed. i'm happy to take questions. >> are you asking the court to take up a question that five justices answered in apodaca? that is, there were five votes to say that the sixth amendment requires jury unanimity in federal trials. you are asking us to reject a rule that five justices adhered to. >> justice ginsburg, we don't think that justice powell's decision was entirely clear with regard to the rule as a would apply historically.
we think the text is very, very clear that unanimity is not there and that it was rejected. >> there were four justices who said unanimity was required. then there was justice powell who said unanimity is required in federal trials. you are asking us to overturn that position, that unanimity is required in federal trials? >> we don't believe that was central to his holding or to his position plurality opinion. our position would be that one justices opinion that is not central to his plurality opinion plus the dissenters is not equal to a holding. >> aren't we having to address the stretch, just as you really seem to be as want us to do? that seems to me and admission that we are in a proper place to
take this up front. if president ways for anything what do we do with andres? what do we do with those 14 cases throughout supreme court history that seems to treat unanimity as part of the sixth amendment? what to do with hughes and a lot of other cases where we've been facing simile splintered decisions and the court has come back and addressed the question fresh without considering stare decisis in those cases? the court can't reach majority opinion. sometimes it's just unable to. why doesn't the state take that risk when it relies on a decision that is so splintered? >> justice gorsuch, i think that louisiana reasonably relied on a decision of this court that nonunanimous juries were constitutional they also did that on the tail end of a decision by this court in williams that found that a six-man jury was also constitutional.
>> we're not dealing with a six person jury sweden put that aside. where did it with unanimity and i don't think you are arguing the court did anything improper in queues or anything proper in seminole tribe by taking up the question of fresh. i'm curious what we differ near and by the state shouldn't be assigned some degree of risk assuming risk by proceeding in this, underlines of one member of the courts opinion that is rather i fair to say idiosyncratic? >> for one thing, i think that incorporation doctrine evolved over time so i'm not sure that the state, it was reasonable to expect the state to ignore an actual holding in the case and anticipate that that would change over time. that's one response that have to the question. i think a response is i think you take it up afresh. this is a non-textual --
>> i appreciate that. that's helpful. >> just on that, general murrill, you don't really want us to take that up afresh, did you? i mean, i'm sort of confused because there's the sentence in your brief that says neither party is asking the court to court justice powell's sole opinion in apodaca precedential force. is that right, that you're not asking us to a court justice powell's sole opinion precedential force? if that's right, i mean, are you basically just saying to me, forget justice powell's of opinion and apodaca, just decide what the sixth amendment requires? >> i think that given in the evolution of incorporation of three, we find ourselves in a position where it is even more important to get the text right and to get the history right.
if that means taking the issue up afresh then we should do that. >> i agree with justice alito. you have some strong reliance interest here, but reliance interest are only relevant in the context of an argument from stare decisis. i would like to know then how are your reliance interest relevant? what argument from stare decisis are you making? >> we think the text and history did not include a nonunanimous jury verdict. we think that's a constitutional, that is a choice that states can make. we think the four justices, less justice powell's decision, were a willing the said it was not unconstitutional to a nonunanimous jury verdicts and reasonable for us to rely on that. we don't entirely disavow stare decisis. we still believe we have enormous reliance interest. >> you were relying on justice powell's opinion apodaca. that's the only --
>> were also relying -- >> stare decisis must be what you rely on, combined with the other four the said states don't have to provide unanimous jurors. >> i think we're also relying on this court's opinions in williams and in hurtado that said the court that is never adopted the, wholesale. that is i think critical to the analysis. >> just to be clear, you are not urging the apodaca. you want us to go back and say that the sixth amendment requires, the issue on which the court was divided, you want us to say unanimity is not required in federal trials and it's not required in state trials, and on that issue, what is your view of the seventh amendment? does the seventh amendment require unanimity in civil trials? >> justice ginsburg, i think the seventh amendment is a a diffet
question. it's text is different. it's structure is different. >> just answer my question is unanimity required under the seventh amendment in civil trials in federal court? >> i don't believe that it would be required in the seventh amendment but it don't think you need to determine that here today. that's not the issue. >> this court has held, there's holding of the supreme court that over 100 years old so holding. so no reliance interest for anybody there? >> justice gorsuch, my answer is specifically related to the tax and what the text would record. i'm not disputing the mighty president that would apply in the seventh amendment. all right. so we don't count president in the seventh amendment but we do this. on justice powell's of opinion. let's say the seventh amendment does require a jury trial. in what universe doesn't make sense to imagine that the framers of the constitution would have insisted on a jury trial for civil cases were
probably is at stake but not in criminal cases where liberty is at stake, and allied? >> i believe that the structure and the history of both reach, ultimately on the textual answer reached the same result. >> all right. >> i don't think that they would. >> you disagree with the analysis on the seventh amendment, i understand that but spot for me a moment that the supreme court might have gotten the seventh amendment right, okay. it might be possible. in what universe with the rule be different for criminal cases? >> i don't think necessarily who would be different. we had to look at what the text and history demand, and that when we're talking about a non-textual right, i think it is very important that the court got the history right. the history tells us that unanimity was rejected for a reason, that the was a very specific decision that was made to reject unanimity.
it was proposed, it was rejected, it was debated, it was discussed, it was a new issue because four states had actually adopted non-unanimity. >> how far are you willing to depart from unanimity? >> mr. chief justice, i think this court has established some of the outer boundaries already in williams and in birch and in apodaca. so nine, and apodaca, so nine-three is okay. i would also remind the court louisiana in reliance on this court's decision in apodaca and and johnson went and at the causative convention the after this case was decided, discussed it, expressly relied on it, and increased voting rules to 10-2. >> chemical back to reliance? putting aside that in janus a couple of decisions from the
supreme court put the unions on notice that things, that the constitutional theory was on shaky ground, and you have a series of cases, much older, telling you that the incorporation theory was on shaky ground. you're talking about a parade of horrible if we rule against you. how about the parade of horrible if we rule in your favor wax how do we decide what that the essence of the common-law jury trial? with issues like having a fair cross-section of the community and the very near the end question? we have a case this is that's incorporated. or what about what we said in sullivan, that the sixth amendment jury right requires a jury verdict of guilty beyond a reasonable doubt? none of those terms are in the constitution. none of those terms, as far as i know, were part of the discussions at the convention.
are they going to be open to attack now if we rule in your favor? there so history, there's no nothing, except our sense of what the essence of the common-law right was. not our sense, , but the history of what happened and why. >> justice sotomayor, we have the text and what made the cut after the debates over what was missing. >> but the debates, we have a bunch of people who were in favor of the cuts telling everybody else everybody understands how unanimous verdict is the standard. we have part of the constitutional debate. hamilton himself, who drafted it and took out the right to a unanimous jury, basically said during the discussion it so self-evident, we don't need to include it. so you're looking at history
just in terms of what was taking out, but without the context of the discussion. >> not exclusively. we also would agree due process and equal protection playable. we don't have requirements anymore that it's only 12 white male freeholders. >> exactly. >> i think that's an example of how we did not adopt the common-law and all of its historical terms. congress adopted some of the language over time. it was not embedded in the constitution. we know there was an historical debate. we know states had adopted a different rule, and then some of them wrote this rule into the own state constitution. so known debated problem. madison proposes an amendment, thanks he solved this problem, and then it gets rejected by the senate. >> but why was it rejected? one account is it was totally
unnecessary. everybody understood a jury trial men unanimous agreement. so we took it out because we did want to clutter up the constitution with unnecessary statements. the words jury trial themselves mean unanimous verdict. >> well, justice ginsburg, we did clutter it up with that the word impartial and we did clutter it up with a number of other terms. and i think that the history showing that states felt that it was important to write it into some other constitutions indicates that there certainly was the least of you that it should be written in i some so i don't think it's a fair reading to assume that was simply, because we all know it would be there come special because they knew the writing a document for the future. >> for the sake of argument assume i think that sixth amendment requires a unanimous jury, just for the sake of argument. what are your best arguments for
why the right is not incorporated, and relatedly your best arguments for not overruling apodaca, which is read, the opposing counsel says, to have allowed the states to do that? >> justice kavanaugh, they are concededly not very good. i think that based on thames, that we recognize that this court at least at this point in time has taken a a view of incorporation that says there's no daylight. so if you find that unanimity is required if i mess up and more difficult position in making that argument. >> yes and no, because you have the stare decisis accepter giving away and i don't know what to make of that because i would think what would you do it to say something like, this is an outlier in incorporation doctrine. there's no question that it is but it's been an outlier for 50 years. it's been completely administrable. it's been completely clear.
states about every right to rely on this for 50 years. it doesn't matter whether it was wrong because overruling something requires more than just the decision be wrong. states have relied on it. there's no reason to change it. the end. stare decisis. but you telling me that justice powell's opinion is entitled to presidential force, isn't entitled to stare decisis effect so don't know what to do with the argument anymore. >> justice kagan, i agree with everything you said about the reasons why this court should affirm apodaca and that it should be given stare decisis effect. i think that we are struggling with the fact that justice powell's decision doesn't seem to be the view of the court and the text and the history also. we strongly and firmly believe are on our side. >> well, you're not the only state who has an interest here. in fact, there's only one state
going forward as of this moment is that an interest in this, and that oregon. oregon might change its rule or might not change its rule. oregon filed a brief and organ does make the argument you're making. oregon says it should be made clear what this brief does not give it does not address the merits of whether apodaca was correctly decided. >> and i think oregon finds itself in a position where the democratic process has stalled in anticipation of this decision. they have written a brief that expressly, i think, emphasizes all of our reliance interests. puerto rico has similar reliance interests. there's a long line of cases dealt with territorial and the constitutions application to territories. they have similar interests. we do think the reliance interests are very, very important. we believe that the judgment was correct. >> it is certainly true that we in recent years have rejected
the two track idea about incorporation, but the opposite is a crazy argument. as recently as mcdonald there were some voices on this court that were essentially making that argument with respect to the second amendment. earlier it's a very respectable argument. it hasn't won the day completely but that's what apodaca rests on. >> justice alito, if you telling me there's a little bit of daylight, and i'll take it. what i also believe history, that the history shows that unanimity was rejected and that that is the correct view. we are not entirely repudiating the apodaca judgment. we do have 50 years of reliance which is why i emphasized with 32,000 people who are incarcerated right now at hard labor for serious crimes, and
every one of them would be subject, would be able to file an appeal. >> do you think 30,000 people were nonunanimous? >> no. >> i don't understand why it would apply to people who were unanimously convicted, maybe, but a think the stronger case would be those people convicted by juries that were not unanimous. how many of those are there? >> we don't know because there wasn't speedy any idea? with all the work gone into this, has anybody got any rough idea of what percentage of those people who are convicted are convicted by nonunanimous juries? >> there's just no reliable data. >> if there's no reliable data, and a fairly think that if there had been some data even if you just take a sample, you would be telling us? and, therefore, the fact that you are telling us that there are a lot of people in jail, which i did know -- [laughing] -- suggest something.
then you say there is you, there's oregon, that they are waiting. all right, but puerto rico is a tough case actually. there's a hispanic tradition, and i don't know, you might have to bring up the insular cases. you might have to revise them. you might have to get into the status question. puerto rico is worrying me. is there something you want to say about that since he rated? >> we have the same tradition but -- >> you have the same tradition but you don't have as as a matr of fact the whole system of trials that grows out of the civil tradition. >> well, that's what i think all 32,000 -- >> all right, skip that. >> are at risk because we do have a system built around -- >> i now want to know since you look into puerto rico, is there a particular problem there if we overturn apodaca? >> i believe there is.
>> i know you believe there is. i just want to know what there is, rather than my making it up. >> because the carriage will decisions were on the authority of congress to write laws that were different for territories notwithstanding the fact that they still came under the protection of the constitution, i think that there's a problem. i mean, the issue here is, does the sixth amendment require unanimity? and less you're going to continue a special carveout for the territories, and have the same question. >> is the third 2000, is a a reason you don't know because the jury is not typically hold or what? >> because it is not always pulled and because that is responsible of the defense to do that and even in some cases where a event, may not been reported or kept in so the case files seem to be very inconsistent on this. we do know that we are already receiving a flood of these cases
as is this court. we file 25 briefs in the louisiana supreme court last friday. this is certainly unsettling the cases, but because enough of those people treated guilty based on the expectation of facing a 10-2 verdict, the criminal defense attorney filed an amicus brief arguing that. we also people who would receive, i don't know what to call received this jury instruction. we're not saying that all win. we are saying that every one of them could file. it's like throwing -- >> i got the reliance point. it i believe, one, contrary to what you say, assume it, i believe that, in fact, the federal right in the constitution does include unanimity in the sixth amendment. then, two, i think that that after it was fairly clear in the law that the federal rules apply to states, if we incorporate.
but you do have a point if you say that are anomalies in the law. perhaps we should leave the anomaly alone. that's where you bring in your reason, the reason being that 32,000 people, et cetera, et cetera. okay, i got that structure. is there any other instance you can think of where, despite a contradiction, which you are allowing under my assumptions to remain, a legal contradiction, the court says okay, because let sleeping dogs lie, otherwise we get serious harm? >> just a footnote. that's not taken care of by teague and the other doctrines you're at the street talked about. >> your honor, i think that one of the significant lines of
jurisprudence that comes to my mind is rowe. i hesitate to bring that into this but i do think that's an area and a think anytime you a non-textual right that the court has relied on, discussed, related to in passing, i mean, or quoted in passing over time and change the incorporation doctrine, that it is that much more important to get the text and the history right. so we think that apodaca was, that the judgment and apodaca was correct that we do have enormous reliance interest involved. >> your reliance interest and he said we should worry about the 32,000 people imprisoned. one might wonder whether we should worry about interest under the sixth amendment as well. i can't help but wonder, well, should we forever ensconce an incorrect view of the united
states constitution for perpetuity, for all states that all people, denying them a right that we believe was originally given to them because of 32,000 criminal convictions in louisiana? >> no, justice gorsuch. but we don't believe that it was a right that was given to them in the sixth amendment. i understand that. i'm talking about a reliance argument. doesn't that greatly diminish a single states claim of reliance with respect to a subset of criminal convictions when were talking about a constitution that supposed to endure? >> no one, at least of all me, is going to stand here and diminish anyone's liberty interest. i wouldn't take that position. but even in a long line of this court's significant decisions related to criminal law and criminal procedure, the court has applied him and a forward
fashion instead of retroactively. so i mean, that's a concern for us. >> the case of retroactivity to convictions that are already final is not before us. it would come before us in a case if you lose this one, but that is not a question that we can properly address year. it hasn't been briefed. it hasn't been decided below. >> justice ginsburg, we do appreciate you do not addressing that issue without our opportunity to brief it. i would point out that our law that we just passed makes the law, it does draw a line and it says that it will apply to all crime, that unanimity will apply to crimes that were committed after january 1, 2019. so to some extent we are talking about at least some
retroactivity because we've already made a decision to address it going forward. >> assumed that the sixth amendment requires unanimity. i know you disagree. assume our law ordinarily requires incorporation against the states of rights that apply against the federal government. so sue ordinarily will be incorporated. then we get to the apodaca question. it seems to me there are two practical argument for overruling apodaca if you accept that's holding. one is, as justice gorsuch's says, there are defensive been convicted and since to life, 10-2 or 11-one to otherwise would've not been convicted. so that seems like a serious issue for us to think about in terms of overruling. the second is about the rule in question here is rooted in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s.
so do either of those -- that doesn't go to the sixth amendment. that goes to the stare decisis angle. do those things, i guess i should say why are not those two things enough to overrule if you accept the legal premises which in a don't but if you set the wife of those not enough? >> so as to the first question with regard to unfairness to defendants, i just did not see how you can separate this from the six-man jury that was approved in williams, which is a six-man jury for all crimes less than capital, and granted universal rule but still only six, and louisiana's rule still requires ten. i don't think it's familiar i for noorda think this court in any precedent as ever hope that is. >> but williams held that the number, the number of jurors was
not at the heart of the jury trial, right ask the court said it was a historical accident. it resembled certain biblical references like 12 12 apostles2 tribes of israel. there was nothing inevitable about the number 12 but that was about the requirement that, whatever the number is, they all agree. .. >> have always-- >> you disagree with williams described in number 12? would you say williams is long in that respect? >> i think that characterization of it was
dismissive. >> thank you. >> thank you, counsel. five minutes, mr. fisher. >> thank you, i'd like to make a couple of quick factual points and then talk about reliance. justice, you asked about numbers of facts, we say in our supply brief in one of the state's own filings there are 36 cases in louisiana with these presented. and then the review levels are modest and low and as the court has described throughout the last half of the argument, the retro activity questions can be left for another day and their reliance doctrines. and puerto rico, they held that the jury trial does not apply the same way in puerto rico as the states.
that would be the question about the insular cases. you'll be talking about that next week perhaps, but something that this case doesn't necessarily address. in reliance, let me make a couple of points about the state's framing of its arguments and talk about, justice kagan your framing of the argument. as for the states, why we have it in the first place, it's settled expectations in the law. and what we're asking you to do are to reaffirm two things the court has said many, many times over the years, one is the sixth amendment requires unanimous verdict and second, when an incorporated provision applies to the states, it applies the same way as to the federal government. to write that opinion you just have to reaffirm what you've said many, many times is the law. the states upheaval of the law and whether 7-5 is okay. the state not only doesn't answer the question in its brief it provides no way to answer the question and one of the questions that would arise
if you agree with the state's view and thing you're then left with the alternative argument. what about putting a reliance interest into apodaca. let's imagine that was in front of the court. i think there are three reasons you would overrule adaca. it's not just the states it's the interest in defendants. before we take away someone's liberty -- we demand a unanimous verdict, unanimous consent of the community and that's important for the social science in this for accuracy, public confidence and the rest and so those reliant interests-- by the way, the state is not renouncing unanimous verdicts.
it's remaining its able to try anyone going forward for a crime committed before january 21st, 2019 and seek a 10-2 verdict and that could go on for years and that could be taken into account. and secondly, incorporation is just different. that's the lesson of the sweep of this court's cases, reliance are less important when it comes to incorporation because the bill of rights themselves are so important. when the court says something is a fundamental rule under our way of doing criminal justice, the states have to follow that same rule as the federal government. the last thing that makes the case different than an ordinary decisive case in a pchapodaca. the decisive reasoning in that case it makes this almost a universe of one. if i could push it further, if you have any doubt look at justice powell's reasoning. justin powell's reasoning in
apodaca, what he says i'm agreeing with the past dissenters, i know you have the rule five years ago requiring the same standards to an i ply in federal court-- in state court as they apply in federal court. i don't want to follow that rule. he didn't try to distinguish the court's old olding. in a sense apodaca, is in the compelling reasons right now to overrule. >> since you mentioned balsak, let's say there's a defender convicted by a nonunanimous verdict in puerto rico and he comes here, i'm a citizen of the united states and the only reason i was able to be convicted by a nonunanimous verdict is these old insular case that is reflect attitudes of the day in the -- and after
the, the aftermath of the spanish-american war and just as you brushed aside apoda achp you should brush aside the insular cases. the insular cases were majority decisions from the court and they were based on a view that has not been disregarded or left behind in jurisprudence. they may be cases under the principles, but this is it not an ordinary decisive case. >> thank you, counsel, cases submitted. >> live wednesday on the c-span networks, the u.s. house returns at 10 a.m. eastern on c-span for general speeches. at noon eastern, the house takes up several bills, including the president's withdrawal from forces in syria. on c-span2, 9:30 a.m., the senate continues work on executive and judicial
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government. >> former trump advisor george papadopoulos, author of "deep state target" spoke in west palm beach, florida about the origins of the counterintelligence investigation into russia and the 2016 trump campaign. in 2017 mr. papadopoulos pleaded guilty to making false statements to fbi agents about the timing and the possible significance of his contact relating to u.s.-russia relations during the trump presidential campaign. he served 12 days in federal prison. prison. [applaus [applause] >> thank you, thank you. thank you. oh, who