Last week in The Enterprise-Journal, an editorial praised the U.S. Supreme Court for overturning the 2016 murder conviction of a Louisiana man in which the jury’s guilty vote was 10-2.
The court used this case to state that the U.S. Constitution’s Sixth Amendment, requiring unanimous guilty verdicts in federal criminal prosecutions, also applies to state trials.
There were two notable elements of the Supreme Court’s ruling: The justices overturned a 1972 case that said the Constitution did not require unanimous state criminal convictions; and last week’s 6-3 verdict included a rare mix of liberals and conservatives.
Ruth Marcus, a columnist for The Washington Post, suspects the court’s odd divisions in the Sixth Amendment case are due to different levels of willingness to overturn prior rulings. And when it comes to the idea of overturning prior rulings, the bear in the room is the 1973 Roe v. Wade case that legalized abortion nationwide.
One of the three dissenters in the Sixth Amendment case, conservative Justice Samuel Alito, wrote that the court was “lowering the bar for overruling our precedents.” But one of the six in the majority, Justice Brett Kavanaugh, noted that in just the last few years, “every current member of this court has voted to overrule multiple constitutional precedents.”
In this framework, the court’s odd divisions in the Sixth Amendment case — three conservatives and three liberals voted to overturn the 1972 ruling, while two conservatives and one liberal opposed — make a little more sense.
Justices with an eye on overturning rulings they think are bad law now have a precedent grounded in the Bill of Rights, while those who think the court should be careful resisted.
If Marcus, the Post columnist, is correct in her speculation that last week’s ruling puts Roe v. Wade at greater risk, Kavanaugh’s opinion proposed a pretty high bar to overruling any of the court’s prior decisions.
The prior ruling, he said, should not just be wrong, but egregiously wrong.
It should have caused “significant negative jurisprudential or real-world consequences.” Justices also should consider whether overturning a prior ruling would “unduly upset reliance interests,” including how long the ruling has been in place.
The court’s conservative majority, if it wishes, has the votes to overturn Roe v. Wade, presumably sending the abortion issue to Congress or to state legislatures.
The Roe ruling’s logic, especially in citing the 14th Amendment’s due process clause in creating a constitutional right to privacy, has often been criticized.
That’s why the case is in the crosshairs to be overturned.
But there is a big difference between upending abortion rights — a debate that has sharply divided the American public — and saying that the Bill of Rights’ trial protections extends to all 50 states, especially when 48 of the 50 already had laws requiring unanimous guilty verdicts.
One is a relatively easy decision to which few will object. The other, obviously, is not.
Jack Ryan, Enterprise-Journal
