NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–5924

															_________________

															EVANGELISTO RAMOS, PETITIONER v. LOUISIANA

															on writ of certiorari to the court of appeal
of louisiana, fourth circuit

															[April 20, 2020]

															Justice Gorsuch announced the judgment of the
Court and delivered the opinion of the Court with respect to Parts
I, II–A, III, and IV–B–1, an opinion with respect to Parts II–B,
IV–B–2, and V, in which Justice Ginsburg, Justice Breyer, and
Justice Sotomayor join, and an opinion with respect to Part IV–A,
in which Justice Ginsburg and Justice Breyer join.

															Accused of a serious crime, Evangelisto Ramos
insisted on his innocence and invoked his right to a jury trial.
Eventually, 10 jurors found the evidence against him persuasive.
But a pair of jurors believed that the State of Louisiana had
failed to prove Mr. Ramos’s guilt beyond reasonable doubt; they
voted to acquit.

															In 48 States and federal court, a single juror’s
vote to acquit is enough to prevent a conviction. But not in
Louisiana. Along with Oregon, Louisiana has long punished people
based on 10-to-2 verdicts like the one here. So instead of the
mistrial he would have received almost anywhere else, Mr. Ramos was
sentenced to life in prison without the possibility of parole.

															Why do Louisiana and Oregon allow nonunanimous
convictions? Though it’s hard to say why these laws persist, their
origins are clear. Louisiana first endorsed nonunanimous verdicts
for serious crimes at a constitutional convention in 1898.
According to one committee chairman, the avowed purpose of that
convention was to “establish the supremacy of the white race,” and
the resulting document included many of the trappings of the Jim
Crow era: a poll tax, a combined literacy and property ownership
test, and a grandfather clause that in practice exempted white
residents from the most onerous of these requirements.[ 1 ]

															Nor was it only the prospect of
African-Americans voting that concerned the delegates. Just a week
before the convention, the U. S. Senate passed a resolution calling
for an investigation into whether Louisiana was systemically
excluding African-Americans from juries.[ 2 ] Seeking to avoid unwanted national attention, and
aware that this Court would strike down any policy of overt
discrimination against African-American jurors as a violation of
the Fourteenth Amendment,[ 3 ]
the delegates sought to undermine African-American participation on
juries in another way. With a careful eye on racial demographics,
the convention delegates sculpted a “facially race-neutral” rule
permitting 10-to-2 verdicts in order “to ensure that
African-American juror service would be meaningless.”[ 4 ]

															Adopted in the 1930s, Oregon’s rule permitting
nonunanimous verdicts can be similarly traced to the rise of the Ku
Klux Klan and efforts to dilute “the influence of racial, ethnic,
and religious minorities on Oregon juries.”[ 5 ] In fact, no one before us contests any of this;
courts in both Louisiana and Oregon have frankly acknowledged that
race was a motivating factor in the adoption of their States’
respective nonunanimity rules.[ 6 ]

															We took this case to decide whether the Sixth
Amendment right to a jury trial—as incorporated against the States
by way of the Fourteenth Amendment—requires a unanimous verdict to
convict a defendant of a serious offense.[ 7 ] Louisiana insists that this Court has never
definitively passed on the question and urges us to find its
practice consistent with the Sixth Amendment. By contrast, the
dissent doesn’t try to defend Louisiana’s law on Sixth or
Fourteenth Amendment grounds; tacitly, it seems to admit that the
Constitution forbids States from using nonunanimous juries. Yet,
unprompted by Louisiana, the dissent suggests our precedent
requires us to rule for the State anyway. What explains all this?
To answer the puzzle, it’s necessary to say a bit more about the
merits of the question presented, the relevant precedent, and, at
last, the consequences that follow from saying what we know to be
true.

															I

															The Sixth Amendment promises that “[i]n 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.” The
Amendment goes on to preserve other rights for criminal defendants
but says nothing else about what a “trial by an impartial jury”
entails.

															Still, the promise of a jury trial surely meant something —otherwise, there would have been no reason to
write it down. Nor would it have made any sense to spell out the
places from which jurors should be drawn if their powers as jurors
could be freely abridged by statute. Imagine a constitution that
allowed a “jury trial” to mean nothing but a single person
rubberstamping convictions without hearing any evidence—but
simultaneously insisting that the lone juror come from a specific
judicial district “previously ascertained by law.” And if that’s
not enough, imagine a constitution that included the same hollow
guarantee twice —not only in the Sixth Amendment, but also in
Article III.[ 8 ] No: The text
and structure of the Constitution clearly suggest that the term
“trial by an impartial jury” carried with it some meaning
about the content and requirements of a jury trial.

															One of these requirements was unanimity.
Wherever we might look to determine what the term “trial by an
impartial jury trial” meant at the time of the Sixth Amendment’s
adoption—whether it’s the common law, state practices in the
founding era, or opinions and treatises written soon afterward—the
answer is unmistakable. A jury must reach a unanimous verdict in
order to convict.

															The requirement of juror unanimity emerged in
14th- century England and was soon accepted as a vital right
protected by the common law.[ 9 ]
As Blackstone explained, no person could be found guilty of a
serious crime 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.”[ 10 ] A “ ‘verdict, taken from eleven, was no
verdict’ ” at all.[ 11 ]

															This same rule applied in the young American
States. Six State Constitutions explicitly required
unanimity.[ 12 ] Another four
preserved the right to a jury trial in more general terms.[ 13 ] But the variations did not
matter much; consistent with the common law, state courts appeared
to regard unanimity as an essential feature of the jury
trial.[ 14 ]

															It was against this backdrop that James Madison
drafted and the States ratified the Sixth Amendment in 1791. By
that time, unanimous verdicts had been required for about 400
years.[ 15 ] If the term
“trial by an impartial jury” carried any meaning at all, it surely
included a requirement as long and widely accepted as
unanimity.

															Influential, postadoption treatises confirm this
understanding. For example, in 1824, Nathan Dane reported as fact
that the U. S. Constitution required unanimity in criminal
jury trials for serious offenses.[ 16 ] A few years later, Justice Story explained in his
Commentaries on the Constitution that “in common cases, the law not
only presumes every man innocent, until he is proved guilty; but
unanimity in the verdict of the jury is indispensable.”[ 17 ] Similar statements can be found
in American legal treatises throughout the 19th century.[ 18 ]

															Nor is this a case where the original public
meaning was lost to time and only recently recovered. This Court
has, repeatedly and over many years, recognized that the Sixth
Amendment requires unanimity. As early as 1898, the Court said that
a 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.”[ 19 ] A few decades
later, the Court elaborated that the Sixth Amendment affords 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.”[ 20 ] And, the Court
observed, this includes a requirement “that the verdict should be
unanimous.”[ 21 ] In all, this
Court has commented on the Sixth Amendment’s unanimity requirement
no fewer than 13 times over more than 120 years.[ 22 ]

															There can be no question either that the Sixth
Amendment’s unanimity requirement applies to state and federal
criminal trials equally. This Court has long explained that the
Sixth Amendment right to a jury trial is “fundamental to the
American scheme of justice” and incorporated against the States
under the Fourteenth Amendment.[ 23 ] This Court has long explained, too, that incorporated
provisions of the Bill of Rights bear the same content when
asserted against States as they do when asserted against the
federal government.[ 24 ] So
if the Sixth Amendment’s right to a jury trial requires a unanimous
verdict to support a conviction in federal court, it requires no
less in state court.

															II

															A

															How, despite these seemingly straightforward
principles, have Louisiana’s and Oregon’s laws managed to hang on
for so long? It turns out that the Sixth Amendment’s otherwise
simple story took a strange turn in 1972. That year, the Court
confronted these States’ unconventional schemes for the first
time—in Apodaca v. Oregon [ 25 ] and a companion case, Johnson v. Louisiana .[ 26 ]
Ultimately, the Court could do no more than issue a badly fractured
set of opinions. Four dissenting Justices would not have hesitated
to strike down the States’ laws, recognizing that the Sixth
Amendment requires unanimity and that this guarantee is fully
applicable against the States under the Fourteenth
Amendment.[ 27 ] But a
four-Justice plurality took a very different view of the Sixth
Amendment. These Justices declared that the real question before
them was whether unanimity serves an important “function” in
“contemporary society.”[ 28 ]
Then, having reframed the question, the plurality wasted few words
before concluding that unanimity’s costs outweigh its benefits in
the modern era, so the Sixth Amendment should not stand in the way
of Louisiana or Oregon.

															The ninth Member of the Court adopted a position
that was neither here nor there. On the one hand, Justice Powell
agreed that, as a matter of “history and precedent, . . .
the Sixth Amendment requires a unanimous jury verdict to
convict.”[ 29 ] 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. In this way, Justice Powell doubled down on his
belief in “dual-track” incorporation—the idea that a single right
can mean two different things depending on whether it is being
invoked against the federal or a state government.

															Justice Powell acknowledged that his argument
for dual-track incorporation came “late in the day.”[ 30 ] Late it was. The Court had already,
nearly a decade earlier, “rejected the notion that the Fourteenth
Amendment applies to the States only a ‘watered-down, subjective
version of the individual guarantees of the Bill of
Rights.’ ”[ 31 ] It’s a
point we’ve restated many times since, too, including as recently
as last year.[ 32 ] Still,
Justice Powell frankly explained, he was “unwillin[g]” to follow
the Court’s precedents.[ 33 ]
So he offered up the essential fifth vote to uphold Mr. Apodaca’s
conviction—if based only on a view of the Fourteenth Amendment that
he knew was (and remains) foreclosed by precedent.

															B

															In the years following Apodaca , both
Louisiana and Oregon chose to continue allowing nonunanimous
verdicts. But their practices have always stood on shaky ground.
After all, while Justice Powell’s vote secured a favorable judgment
for the States in Apodaca , it’s never been clear what
rationale could support a similar result in future cases. Only two
possibilities exist: Either the Sixth Amendment allows nonunanimous
verdicts, or the Sixth Amendment’s guarantee of a jury trial
applies with less force to the States under the Fourteenth
Amendment. Yet, as we’ve seen, both bear their problems. In Apodaca itself, a majority of Justices—including Justice
Powell—recognized that the Sixth Amendment demands unanimity, just
as our cases have long said. And this Court’s precedents, both then
and now, prevent the Court from applying the Sixth Amendment to the
States in some mutated and diminished form under the Fourteenth
Amendment. So what could we possibly describe as the “holding” of Apodaca ?

															Really, no one has found a way to make sense of
it. In later cases, this Court has labeled Apodaca an
“exception,” “unusual,” and in any event “not an endorsement” of
Justice Powell’s view of incorporation.[ 34 ] At the same time, we have continued to recognize
the historical need for unanimity.[ 35 ] We’ve been studiously ambiguous, even inconsistent,
about what Apodaca might mean.[ 36 ] To its credit, Louisiana acknowledges the problem.
The State expressly tells us it is not “asking the Court to accord
Justice Powell’s solo opinion in Apodaca precedential
force.”[ 37 ] Instead, in an
effort to win today’s case, Louisiana embraces the idea that
everything is up for grabs. It contends that this Court has never
definitively ruled on the propriety of nonunanimous juries under
the Sixth Amendment—and that we should use this case to hold for
the first time that nonunanimous juries are permissible in state
and federal courts alike.

															III

															Louisiana’s approach may not be quite as tough
as trying to defend Justice Powell’s dual-track theory of
incorporation, but it’s pretty close. How does the State deal with
the fact this Court has said 13 times over 120 years that the Sixth
Amendment does require unanimity? Or the fact that five
Justices in Apodaca said the same? The best the State can
offer is to suggest that all these statements came in
dicta.[ 38 ] But even
supposing (without granting) that Louisiana is right and it’s dicta
all the way down, why would the Court now walk away from many of
its own statements about the Constitution’s meaning? And what about
the prior 400 years of English and American cases requiring
unanimity—should we dismiss all those as dicta too?

															Sensibly, Louisiana doesn’t dispute that the
common law required unanimity. Instead, it argues that the drafting
history of the Sixth Amendment reveals an intent by the framers to
leave this particular feature behind. The State points to the fact
that Madison’s proposal for the Sixth Amendment originally read:
“The trial of all crimes . . . shall be by an impartial
jury of freeholders of the vicinage, with the requisite of
unanimity for conviction, of the right of challenge, and other
accustomed requisites. . . .”[ 39 ] Louisiana notes that the House of
Representatives approved this text with minor modifications. Yet,
the State stresses, the Senate replaced “impartial jury of
freeholders of the vicinage” with “impartial jury of the State and
district wherein the crime shall have been committed” and also
removed the explicit references to unanimity, the right of
challenge, and “other accustomed requisites.” In light of these
revisions, Louisiana would have us infer an intent to abandon the
common law’s traditional unanimity requirement.

															But this snippet of drafting history could just
as easily support the opposite inference. Maybe the Senate deleted
the language about unanimity, the right of challenge, and “other
accustomed prerequisites” because all this was so plainly included
in the promise of a “trial by an impartial jury” that Senators
considered the language surplusage. The truth is that we have
little contemporaneous evidence shedding light on why the Senate
acted as it did.[ 40 ] So
rather than dwelling on text left on the cutting room floor, we are
much better served by interpreting the language Congress retained
and the States ratified. And, as we’ve seen, at the time of the
Amendment’s adoption, the right to a jury trial meant a
trial in which the jury renders a unanimous verdict.

															Further undermining Louisiana’s inference about
the drafting history is the fact it proves too much. If the
Senate’s deletion of the word “unanimity” changed the meaning of
the text that remains, then the same would seemingly have to follow
for the other deleted words as well. So it’s not just unanimity
that died in the Senate, but all the “other accustomed requisites”
associated with the common law jury trial right— i.e., everything history might have taught us about what it means
to have a jury trial. Taking the State’s argument from drafting
history to its logical conclusion would thus leave the right to a
“trial by jury” devoid of meaning. A right mentioned twice in the
Constitution would be reduced to an empty promise. That can’t be
right.

															Faced with this hard fact, Louisiana’s only
remaining option is to invite us to distinguish between the
historic features of common law jury trials that (we think) serve
“important enough” functions to migrate silently into the Sixth
Amendment and those that don’t. And, on the State’s account, we
should conclude that unanimity isn’t worthy enough to make the
trip.

															But to see the dangers of Louisiana’s overwise
approach, there’s no need to look any further than Apodaca itself. There, four Justices, pursuing the functionalist approach
Louisiana espouses, began by describing the
“ ‘essential’ ” benefit of a jury trial as “ ‘the
interposition . . . of the commonsense judgment of a
group of laymen’ ” between the defendant and the possibility
of an “ ‘overzealous prosecutor.’ ”[ 41 ] And measured against that muddy yardstick,
they quickly concluded that requiring 12 rather than 10 votes to
convict offers no meaningful improvement.[ 42 ] Meanwhile, these Justices argued, States have good
and important reasons for dispensing with unanimity, such as
seeking to reduce the rate of hung juries.[ 43 ]

															Who can profess confidence in a breezy
cost-benefit analysis like that? Lost in the accounting are the
racially discriminatory reasons that Louisiana and Oregon
adopted their peculiar rules in the first place.[ 44 ] What’s more, the plurality never
explained why the promised benefit of abandoning unanimity—reducing
the rate of hung juries—always scores as a credit, not a cost. But
who can say whether any particular hung jury is a waste, rather
than an example of a jury doing exactly what the plurality said it
should—deliberating carefully and safeguarding against overzealous
prosecutions? And what about the fact, too, that some studies
suggest that the elimination of unanimity has only a small effect
on the rate of hung juries?[ 45 ] Or the fact that others profess to have found that
requiring unanimity may provide other possible benefits, including
more open-minded and more thorough deliberations?[ 46 ] It seems the Apodaca plurality
never even conceived of such possibilities.

															Our real objection here isn’t that the Apodaca plurality’s cost-benefit analysis was too skimpy.
The deeper problem is that the plurality subjected the ancient
guarantee of a unanimous jury verdict to its own functionalist
assessment in the first place. And Louisiana asks us to repeat the
error today, just replacing Apodaca ’s functionalist
assessment with our own updated version. All this overlooks the
fact that, at the time of the Sixth Amendment’s adoption, the right
to trial by jury included a right to a unanimous verdict.
When the American people chose to enshrine that right in the
Constitution, they weren’t suggesting fruitful topics for future
cost-benefit analyses. They were seeking to ensure that their
children’s children would enjoy the same hard-won liberty they
enjoyed. As judges, it is not our role to reassess whether the
right to a unanimous jury is “important enough” to retain. With
humility, we must accept that this right may serve purposes evading
our current notice. We are entrusted to preserve and protect that
liberty, not balance it away aided by no more than social
statistics.[ 47 ]

															IV

															A

															If Louisiana’s path to an affirmance is a
difficult one, the dissent’s is trickier still. The dissent doesn’t
dispute that the Sixth Amendment protects the right to a unanimous
jury verdict, or that the Fourteenth Amendment extends this right
to state-court trials. But, it insists, we must affirm Mr. Ramos’s
conviction anyway. Why? Because the doctrine of stare
decisis supposedly commands it. There are two independent
reasons why that answer falls short.

															In the first place and as we’ve seen, not even
Louisiana tries to suggest that Apodaca supplies a governing
precedent. Remember, Justice Powell agreed that the Sixth Amendment
requires a unanimous verdict to convict, so he would have no
objection to that aspect of our holding today. Justice Powell
reached a different result only by relying on a dual-track theory
of incorporation that a majority of the Court had already rejected
(and continues to reject). And to accept that reasoning as
precedential, we would have to embrace a new and dubious
proposition: that a single Justice writing only for himself has the
authority to bind this Court to propositions it has already
rejected.

															This is not the rule, and for good reason—it
would do more to destabilize than honor precedent. To see how,
consider a hypothetical. Suppose we face a question of first
impression under the Fourth Amendment: whether a State must obtain
a warrant before reading a citizen’s email in the hands of an
Internet provider and using that email as evidence in a criminal
trial. Imagine this question splits the Court, with four Justices
finding the Fourth Amendment requires a warrant and four Justices
finding no such requirement. The ninth Justice agrees that the
Fourth Amendment requires a warrant, but takes an idiosyncratic
view of the consequences of violating that right. In her view, the
exclusionary rule has gone too far, and should only apply when the
defendant is prosecuted for a felony. Because the case before her
happens to involve only a misdemeanor, she provides the ninth vote
to affirm a conviction based on evidence secured by a warrantless
search. Of course, this Court has longstanding precedent requiring
the suppression of all evidence obtained in unconstitutional
searches and seizures. Mapp v. Ohio , 367 U.S.
643 (1961). But like Justice Powell, our hypothetical ninth
Justice sticks to her view and expressly rejects this Court’s
precedent. Like Justice Powell, this Justice’s vote would be
essential to the judgment. So if, as the dissent suggests, that is enough to displace precedent, would Mapp ’s
exclusionary rule now be limited to felony prosecutions?

															Admittedly, this example comes from our
imagination. It has to, because no case has before suggested that a
single Justice may overrule precedent. But if the Court were to
embrace the dissent’s view of stare decisis , it would not
stay imaginary for long. Every occasion on which the Court is
evenly split would present an opportunity for single Justices to
overturn precedent to bind future majorities. Rather than advancing
the goals of predictability and reliance lying behind the doctrine
of stare decisis , such an approach would impair them.

															The dissent contends that, in saying this much,
we risk defying Marks v. United States .[ 48 ] According to Marks , when
“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 ] But
notice that the dissent never actually gets around to telling us
which opinion in Apodaca it considers to be the narrowest
and controlling one under Marks —or why. So while the dissent
worries that we defy a Marks precedent, it is oddly coy
about where exactly that precedent might be found.

															The parties recognize what the dissent does not: Marks has nothing to do with this case. Unlike a Marks dispute where the litigants duel over which opinion
represents the narrowest and controlling one, the parties before us
accept that Apodaca yielded no controlling opinion at all.
In particular, both sides admit that Justice Powell’s opinion
cannot bind us—precisely because he relied on a dual-track rule of
incorporation that an unbroken line of majority opinions before and
after Apodaca has rejected. Still, the dissent presses the
issue, suggesting that a single Justice’s opinion can overrule prior precedents under “the logic” of Marks .[ 50 ] But, as
the dissent itself implicitly acknowledges, Marks never
sought to offer or defend such a rule. And, as we have seen, too, a
rule like that would do more to harm than advance stare
decisis .

															The dissent’s backup argument fares no better.
In the end, even the dissent is forced to concede that Justice
Powell’s reasoning in Apodaca lacks controlling
force.[ 51 ] So far, so good.
But then the dissent suggests Apodaca somehow still manages
to supply a controlling precedent as to its result .[ 52 ] Look closely, though. The
dissent’s account of Apodaca ’s result looks
suspiciously like the reasoning of Justice Powell’s opinion:
“In Apodaca, this means that when (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.”[ 53 ] Where does the
convenient “state court” qualification come from? Neither the Apodaca plurality nor the dissent included any limitation
like that—their opinions turned on the meaning of the Sixth
Amendment. What the dissent characterizes as Apodaca ’s
result turns out to be nothing more than Justice Powell’s reasoning
about dual-track incorporation dressed up to look like a logical
proof.

															All of this does no more than highlight an old
truth. It is usually a judicial decision’s reasoning—its ratio decidendi —that allows it to have life and
effect in the disposition of future cases.[ 54 ] As this Court has repeatedly explained in
the context of summary affirmances, “ ‘unexplicated’ ”
decisions may “ ‘settl[e] the issues for the parties, [but
they are] not to be read as a renunciation by this Court of
doctrines previously announced in our opinions.’ ”[ 55 ] Much the same may be said here. Apodaca ’s judgment line resolved that case for the parties
in that case. It is binding in that sense. But stripped from any
reasoning, its judgment alone cannot be read to repudiate this
Court’s repeated pre-existing teachings on the Sixth and Fourteenth
Amendments.[ 56 ]

															B

															1

															There’s another obstacle the dissent must
overcome. Even if we accepted the premise that Apodaca established a precedent, no one on the Court today is prepared to
say it was rightly decided, and stare decisis isn’t supposed
to be the art of methodically ignoring what everyone knows to be
true.[ 57 ] Of course, the
precedents of this Court warrant our deep respect as embodying the
considered views of those who have come before. But stare
decisis has never been treated as “an inexorable
command.”[ 58 ] And the
doctrine is “at its weakest when we interpret the
Constitution”[ 59 ] because a
mistaken judicial interpretation of that supreme law is often
“practically impossible” to correct through other means.[ 60 ] To balance these considerations,
when it revisits a precedent this Court has traditionally
considered “the quality of the decision’s reasoning; its
consistency with related decisions; legal developments since the
decision; and reliance on the decision.”[ 61 ] In this case, each factor points in the same
direction.

															Start with the quality of the reasoning. Whether
we look to the plurality opinion or Justice Powell’s separate
concurrence, Apodaca was gravely mistaken; again, no Member
of the Court today defends either as rightly decided. Without
repeating what we’ve already explained in detail, it’s just an
implacable fact that the plurality spent almost no time grappling
with the historical meaning of the Sixth Amendment’s jury trial
right, this Court’s long-repeated statements that it demands
unanimity, or the racist origins of Louisiana’s and Oregon’s laws.
Instead, the plurality subjected the Constitution’s jury trial
right to an incomplete functionalist analysis of its own creation
for which it spared one paragraph. And, of course, five Justices
expressly rejected the plurality’s conclusion that the Sixth
Amendment does not require unanimity. Meanwhile, Justice Powell
refused to follow this Court’s incorporation precedents. Nine
Justices (including Justice Powell) recognized this for what it
was; eight called it an error.

															Looking to Apodaca ’s consistency with
related decisions and recent legal developments compounds the
reasons for concern. Apodaca sits uneasily with 120 years of
preceding case law. Given how unmoored it was from the start, it
might seem unlikely that later developments could have done more to
undermine the decision. Yet they have. While Justice Powell’s
dual-track theory of incorporation was already foreclosed in 1972,
some at that time still argued that it might have a role to play
outside the realm of criminal procedure. Since then, the Court has
held otherwise.[ 62 ] Until
recently, dual-track incorporation attracted at least a measure of
support in dissent. But this Court has now roundly rejected
it.[ 63 ] Nor has the
plurality’s rejection of the Sixth Amendment’s historical unanimity
requirement aged more gracefully. As we’ve seen, in the years since Apodaca , this Court has spoken inconsistently about its
meaning—but nonetheless referred to the traditional unanimity
requirement on at least eight occasions.[ 64 ] In light of all this, calling Apodaca an
outlier would be perhaps too suggestive of the possibility of
company.

															When it comes to reliance interests, it’s
notable that neither Louisiana nor Oregon claims anything like the
prospective economic, regulatory, or social disruption litigants
seeking to preserve precedent usually invoke. No one, it seems, has
signed a contract, entered a marriage, purchased a home, or opened
a business based on the expectation that, should a crime occur, at
least the accused may be sent away by a 10-to-2 verdict.[ 65 ] Nor does anyone suggest that
nonunanimous verdicts have “become part of our national
culture.”[ 66 ] It would be
quite surprising if they had, given that nonunanimous verdicts are
insufficient to convict in 48 States and federal court.

															Instead, the only reliance interests that might
be asserted here fall into two categories. The first concerns the
fact Louisiana and Oregon may need to retry defendants convicted of
felonies by nonunanimous verdicts whose cases are still pending on
direct appeal. The dissent claims that this fact supplies the
winning argument for retaining Apodaca because it has
generated “enormous reliance interests” and overturning the case
would provoke a “crushing” “tsunami” of follow-on
litigation.[ 67 ]

															The overstatement may be forgiven as intended
for dramatic effect, but prior convictions in only two States are
potentially affected by our judgment. Those States credibly claim
that the number of nonunanimous felony convictions still on direct
appeal are somewhere in the hundreds,[ 68 ] and retrying or plea bargaining these cases will
surely impose a cost. But new rules of criminal procedures usually
do, often affecting significant numbers of pending cases across the
whole country. For example, after Booker v. United
States held that the Federal Sentencing Guidelines must be
advisory rather than mandatory, this Court vacated and remanded
nearly 800 decisions to the courts of appeals. Similar consequences
likely followed when Crawford v. Washington overturned prior interpretations of the Confrontation
Clause[ 69 ] or Arizona v. Gant changed the law for searches incident to
arrests.[ 70 ] Our decision
here promises to cause less, and certainly nothing before us
supports the dissent’s surmise that it will cause wildly more,
disruption than these other decisions.

															2

															The second and related reliance interest the
dissent seizes upon involves the interest Louisiana and Oregon have
in the security of their final criminal judgments. In light of our
decision today, the dissent worries that defendants whose appeals
are already complete might seek to challenge their nonunanimous
convictions through collateral ( i.e., habeas) review.

															But again the worries outstrip the facts. Under Teague v. Lane , newly recognized rules of criminal
procedure do not normally apply in collateral review.[ 71 ] True, Teague left open
the possibility of an exception for “watershed rules”
“implicat[ing] the fundamental fairness [and accuracy] of the
trial.”[ 72 ] But, as this
language suggests, Teague ’s test is a demanding one, so much
so that this Court has yet to announce a new rule of criminal
procedure capable of meeting it.[ 73 ] And the test is demanding by design, expressly
calibrated to address the reliance interests States have in the
finality of their criminal judgments.[ 74 ]

															Nor is the Teague question even before
us. Whether the right to jury unanimity applies to cases on
collateral review is a question for a future case where the parties
will have a chance to brief the issue and we will benefit from
their adversarial presentation. That litigation is sure to come,
and will rightly take into account the States’ interest in the
finality of their criminal convictions. In this way, Teague frees us to say what we know to be true about the rights of the
accused under our Constitution today, while leaving questions about
the reliance interest States possess in their final judgments for
later proceedings crafted to account for them. It would hardly make
sense to ignore that two-step process and count the State’s
reliance interests in final judgments both here and again there.
Certainly the dissent cites no authority for such double
counting.

															Instead, the dissent suggests that the feeble
reliance interests it identifies should get a boost because the
right to a unanimous jury trial has “little practical importance
going forward.”[ 75 ] In the
dissent’s telling, Louisiana has “abolished” nonunanimous verdicts
and Oregon “seemed on the verge of doing the same until the Court
intervened.”[ 76 ] But, as the
dissent itself concedes, a ruling for Louisiana would invite other
States to relax their own unanimity requirements.[ 77 ] In fact, 14 jurisdictions have already
told us that they would value the right to “experiment” with
nonunanimous juries.[ 78 ]
Besides, Louisiana’s law bears only prospective effect, so the
State continues to allow nonunanimous verdicts for crimes committed
before 2019.[ 79 ] And while
the dissent speculates that our grant of certiorari contributed to
the failure of legal reform efforts in Oregon, its citation does
not support its surmise. No doubt, too, those who risk being
subjected to nonunanimous juries in Louisiana and Oregon today, and
elsewhere tomorrow, would dispute the dissent’s suggestion that
their Sixth Amendment rights are of “little practical
importance.”

															That point suggests another. In its valiant
search for reliance interests, the dissent somehow misses maybe the
most important one: the reliance interests of the American people.
Taken at its word, the dissent would have us discard a Sixth
Amendment right in perpetuity rather than ask two States to retry a
slice of their prior criminal cases. Whether that slice turns out
to be large or small, it cannot outweigh the interest we all share
in the preservation of our constitutionally promised liberties.
Indeed, the dissent can cite no case in which the one-time need to
retry defendants has ever been sufficient to inter a
constitutional right forever.

															In the final accounting, the dissent’s stare
decisis arguments round to zero. We have an admittedly mistaken
decision, on a constitutional issue, an outlier on the day it was
decided, one that’s become lonelier with time. In arguing
otherwise, the dissent must elide the reliance the American people
place in their constitutionally protected liberties, overplay the
competing interests of two States, count some of those interests
twice, and make no small amount of new precedent all its own.

															V

															On what ground would anyone have us leave Mr.
Ramos in prison for the rest of his life? Not a single Member of
this Court is prepared to say Louisiana secured his conviction
constitutionally under the Sixth Amendment. No one before us
suggests that the error was harmless. Louisiana does not claim
precedent commands an affirmance. In the end, the best anyone can
seem to muster against Mr. Ramos is that, if we dared to admit in
his case what we all know to be true about the Sixth Amendment, we
might have to say the same in some others. But where is the justice
in that? Every judge must learn to live with the fact he or she
will make some mistakes; it comes with the territory. But it is
something else entirely to perpetuate something we all know to be
wrong only because we fear the consequences of being right. The
judgment of the Court of Appeals is

															Reversed. Notes 1 Official Journal of the
Proceedings of the Constitutional Convention of the State of
Louisiana 374 (H. Hearsey ed. 1898); Eaton, The Suffrage Clause in
the New Constitution of Louisiana, 13 Harv. L. Rev. 279,
286–287 (1899); Louisiana v. United States , 380 U.S.
145 , 151–153 (1965). 2 See 31 Cong. Rec. 1019
(1898). 3 Strauder v. West Virginia , 100 U.S.
303 , 310 (1880). 4 State v. Maxie , No. 13–CR–72522 (La. 11th Jud. Dist., Oct. 11, 2018),
App. 56–57; see also Frampton, The Jim Crow Jury, 71 Vand.
L. Rev. 1593 (2018). 5 State v. Williams , No. 15–CR–58698 (C. C. Ore., Dec. 15, 2016), App.
104. 6 Maxie , App. 82; Williams , App. 104. 7 Under existing precedent
and consistent with a common law tradition not at issue here, a
defendant may be tried for certain “petty offenses” without a jury. Cheff v. Schnackenberg , 384 U.S.
373 , 379 (1966). 8 See Art. III,
§2. 9 See J. Thayer, Evidence
at the Common Law 86–90 (1898) (Thayer); W. Forsyth, History of
Trial by Jury 200 (J. Morgan ed., 2d ed. 1875); 1 W. Holdsworth, A
History of English Law 318 (rev. 7th ed. 1956); Smith, The
Historical and Constitutional Contexts of Jury Reform, 25 Hofstra
L. Rev. 377, 397 (1996). 10 4 W.
Blackstone, Commentaries on the Laws of England 343
(1769). 11 Thayer 88–89, n. 4 (quoting Anonymous Case , 41 Lib. Assisarum 11 (1367)); see also 1 M.
Hale, Pleas of the Crown 33 (1736). 12 See
Del. Declaration of Rights §14 (1776), in 1 The Bill of Rights: A
Documentary History 278 (1971); Md. Declaration of Rights §XIX, in
3 Federal and State Constitutions 1688 (F. Thorpe ed. 1909)
(Thorpe); N. C. Declaration of Rights §IX (1776), in 5 id., at 2787; Pa. Declaration of Rights §IX (1776), in 5 id., at
3083; Vt. Declaration of Rights, ch. I, §XI (1786), in 6 id., at 3753; Va. Declaration of Rights §8 (1776), in 7 id., at 3813. 13 See
Ga. Const., Art. IV, §3 (1789), in 2 id., at 789; N. J.
Const., Art. XXII (1776), in 5 id., at 2598; N. Y. Const.,
Art. XLI (1777), in 5 id., at 2637; S. C. Const., Art. IX,
§6 (1790), in 6 id., at 3264. 14 See, e.g., Commonwealth v. Bowden , 9 Mass. 494, 495
(1813); People v. Denton , 2 Johns. Cas. 275, 277
(N. Y. 1801); Commonwealth v. Fells , 36 Va. 613,
614–615 (1838); State v. Doon & Dimond , 1 R.
Charlton 1, 2 (Ga. Super. Ct. 1811); see also Respublica v. Oswald , 1 Dall. 319, 323 (Pa. 1788) (reporting Chief Justice
McKean’s observations that unanimity would have been required even
if the Pennsylvania Constitution had not said so
explicitly). 15 To be
sure, a few of the Colonies had relaxed (and then restored) the
unanimity requirement well before the founding. For example, during
a two decade period in the late 17th century, the Carolinas
experimented with a non-common law system designed to encourage a
feudal social structure; this “reactionary” constitution permitted
conviction by majority vote. See Carolina Const., Art. 69 (1669),
in 5 Thorpe 2781; Reinsch, The English Common Law in the Early
American Colonies, in 1 Select Essays in Anglo-American Legal
History 407 (1907). But, as Louisiana admits, by the time of the
Sixth Amendment’s adoption, unanimity had again become the accepted
rule. See Brief for Respondent 17. 16 6 N.
Dane, Digest of American Law, ch. LXXXII, Art. 2, §1, p. 226
(1824). 17 2 J.
Story, Commentaries on the Constitution of the United States §777,
p. 248 (1833). 18 See, e.g., J. Pomeroy, An Introduction to Municipal Law §135, p.
78 (1864); J. Tiffany, Government and Constitutional Law §549, p.
367 (1867); T. Cooley, Constitutional Limitations 319–320 (1868); 1
J. Bishop, Criminal Procedure §897 (rev. 2d ed. 1872). 19 Thompson v. Utah , 170 U.S.
343 , 351 (1898). See also Maxwell v. Dow , 176 U.S.
581 , 586 (1900). 20 Patton v. United
States , 281 U.S.
276 , 288 (1930). 21 Ibid. See also Andres v. United States , 333 U.S.
740 , 748 (1948) (“Unanimity in jury verdicts is required where
the Sixth and Seventh Amendments apply”). 22 In
addition to Thompson , Maxwell , Patton , and Andres , see Johnson v. Louisiana , 406
U.S. 356 , 369 (1972) (Powell, J., concurring); United
States v. Gaudin , 515 U.S.
506 , 510 (1995); Richardson v. United States , 526 U.S.
813 , 817 (1999); Apprendi v. New Jersey , 530 U.S.
466 , 477 (2000); Southern Union Co. v. United
States , 567 U.S.
343 , 356 (2012); Blakely v. Washington , 542 U.S.
296 , 301–302 (2004); United States v. Booker , 543 U.S.
220 , 233–239 (2005); Descamps v. United States , 570 U.S.
254 , 269 (2013); United States v. Haymond ,
588 U. S. ___, ___–___ (2019) (plurality opinion) (slip op.,
at 6–7). 23 Duncan v. Louisiana , 391 U.S.
145 , 148–150 (1968). 24 Malloy v. Hogan , 378 U.S.
1 , 10–11 (1964). 25 406 U.S.
404 (plurality opinion). 26 406 U.S.
356 . 27 See Apodaca , 406 U. S., at 414–415 (Stewart, J., joined by
Marshall and Brennan, JJ., dissenting) (“Until today, it has been
universally understood that a unanimous verdict is an essential
element of a Sixth Amendment jury trial. . . . I
would follow these settled Sixth Amendment precedents”); Johnson , 406 U. S ., at 382–383, 391–393
(Douglas, J., joined by Marshall and Brennan, JJ.,
dissenting). 28 Apodaca , 406 U. S., at
410. 29 Johnson , 406 U. S., at
371 (concurring opinion). 30 Id. , at
375. 31 Id. , at 384 (Douglas, J.,
dissenting) (quoting Malloy , 378 U. S., at 10–11); Johnson , 406 U. S., at 395–396 (Brennan, J.,
dissenting) (collecting cases). 32 See, e.g., Timbs v. Indiana , 586 U. S. ___, ___
(2019) (slip op., at 3) (unanimously rejecting arguments for
dual-track incorporation). 33 Johnson , 406 U. S., at
375–376, and n. 15 (concurring opinion). 34 McDonald v. Chicago , 561 U.S.
742 , 766, n. 14 (2010); see also Timbs , 586
U. S., at ___ (slip op., at 3) (quoting McDonald , 561
U. S., at 766, n. 14). 35 Gaudin , 515 U. S., at
510; Richardson , 526 U. S., at 817; Apprendi ,
530 U. S., at 477; Southern Union Co. , 567 U. S.,
at 356; Blakely , 542 U. S., at 301–302; Booker ,
543 U. S., at 238; Descamps , 570 U. S., at 269; Haymond , 588 U. S., at ___–___ (plurality opinion)
(slip op., at 6–7). 36 See, e.g., Burch v. Louisiana , 441 U.S.
130 , 136, and n. 9 (1979) (describing both plurality
opinion and Justice Powell’s separate writing); Brown v. Louisiana , 447 U.S.
323 , 331 (1980) (plurality opinion) (describing neither); see
also McKoy v. North Carolina , 494
U.S. 433 , 468 (1990) (Scalia, J., dissenting) (same). On a few
occasions we’ve suggested that perhaps Apodaca means the
Sixth Amendment does not require unanimity at all. See Ludwig v. Massachusetts , 427
U.S. 618 , 625 (1976) (quoting Apodaca plurality); Gaudin , 515 U. S., at 510, n. 2 (same); see also Holland v. Illinois , 493 U.S.
474 , 511 (1990) (Stevens, J., dissenting) (same). But on
another occasion, we suggested that it could make a difference
whether a particular right was rooted in the Sixth Amendment’s jury
trial guarantee or Fourteenth Amendment due process guarantee. See Schad v. Arizona , 501 U.S.
624 , 634, n. 5 (1991) (plurality opinion). The dissent
contends that these cases have “reiterated time and again what Apodaca had established.” Post , at 6 (opinion of
Alito, J.). More accurately, these “reiterations” have suggested
different things at different times. 37 See
Brief for Respondent 47; Tr. of Oral Arg. 37–38. 38 In at
least some of these cases, that may be a fair characterization. For
example, while Thompson was quick to say that the U. S.
Constitution requires “the unanimous verdict of a jury of twelve
persons,” the question before the Court was whether, in the
circumstances of the defendant’s case, a trial by eight jurors in a
Utah state court would violate the Ex Post Facto Clause. 170
U. S., at 351. The Sixth Amendment’s unanimity requirement was
unnecessary to the outcome, and the Utah Constitution required
unanimity either way. Id. , at 345. 39 1
Annals of Cong. 435 (1789). 40 In
private writings, Madison did explain some of the Senate’s
objections with his original phrasing of the vicinage requirement.
See 5 Writings of James Madison 420–424 (G. Hunt ed. 1904) (letters
to E. Pendleton, Sept. 14 and 23, 1789). But this is little help in
explaining the other changes made in the Senate. 41 406
U. S., at 410 (plurality opinion) (quoting Williams v. Florida , 399 U.S.
78 , 100 (1970), and Duncan , 391 U. S., at
156). 42 406
U. S., at 410–411. 43 Id., at 411. 44 The
dissent chides us for acknowledging the racist history of
Louisiana’s and Oregon’s laws, and commends the Apodaca plurality’s decision to disregard these facts. Post, at 2–5,
14. But if the Sixth Amendment calls on judges to assess the
functional benefits of jury rules, as the Apodaca plurality
suggested, how can that analysis proceed to ignore the very
functions those rules were adopted to serve? The dissent answers
that Louisiana and Oregon eventually recodified their nonunanimous
jury laws in new proceedings untainted by racism. See post ,
at 3–4, n. 3. But that cannot explain Apodaca ’s omission:
The States’ proceedings took place only after the Court’s
decision. Nor can our shared respect for “rational and civil
discourse,” post , at 5, supply an excuse for leaving an
uncomfortable past unexamined. Still, the dissent is right about
one thing—a jurisdiction adopting a nonunanimous jury rule even for
benign reasons would still violate the Sixth
Amendment. 45 See
H. Kalven & H. Zeisel, The American Jury 461 (1966); Diamond,
Rose, & Murphy, Revisiting the Unanimity Requirement: The
Behavior of the Nonunanimous Civil Jury, 100 Nw. U. L. Rev. 201,
207–208 (2006). 46 Devine et al., Jury Decision Making:
45 Years of Empirical Research on Deliberating Groups, 7 Psych.
Pub. Pol’y & L. 622, 669 (2001); R. Hastie, S. Penrod, & N.
Pennington, Inside the Jury 115, 164–165 (1983); Hans, The Power of
Twelve: The Impact of Jury Size and Unanimity on Civil Jury
Decision Making, 4 Del. L. Rev. 1, 24–25 (2001). 47 The
dissent seems to suggest that we must abandon the Sixth Amendment’s
historical meaning in favor of Apodaca ’s functionalism
because a parade of horribles would follow otherwise. In
particular, the dissent reminds us that, at points and places in
our history, women were not permitted to sit on juries. See post , at 15–16. But we hardly need Apodaca ’s
functionalism to avoid repeating that wrong. Unlike the rule of
unanimity, rules about who qualified as a defendant’s “peer” varied
considerably at common law at the time of the Sixth Amendment’s
adoption. Reflecting that fact, the Judiciary Act of 1789—adopted
by the same Congress that passed the Sixth Amendment—initially
pegged the qualifications for federal jury service to the relevant
state jury qualification requirements. 1Stat. 88. As a result, for
much of this Nation’s early history the composition of federal
juries varied both geographically and over time. See Hickey,
Federal Legislation: Improvement of the Jury System in Federal
Courts, 35 Geo. L. J. 500, 506–507 (1947); Taylor v. Louisiana , 419 U.S.
522 , 536 (1975). Ultimately, however, the people themselves
adopted further constitutional amendments that prohibit invidious
discrimination. So today the Sixth Amendment’s promise of a jury of
one’s peers means a jury selected from a representative
cross-section of the entire community. See Strauder , 100
U. S., at 307–308; Smith v. Texas , 311 U.S.
128 , 130 (1940); Taylor , 419 U. S., at 527.
Relatedly, the dissent suggests that, before doing anything here,
we should survey all changes in jury practices since 1791. See post , at 16, n. 26. It sounds like an interesting
study—but not one that could alter the plain meaning of the
Constitution or obliviate its undisputed unanimity
requirement. 48 430 U.S.
188 (1977). 49 Id. , at 193. 50 Post, at 10–11. 51 Post, at 11–12. 52 Post, at 8. 53 Ibid . See also post , at
11, n. 6 (Kavanaugh, J., concurring in part) (offering the same
argument by contending that “[t]he result of Apodaca ” means
“state criminal juries need not be unanimous”). 54 See
J. Salmond, Jurisprudence §62, p. 191 (G. Williams ed., 10th ed.
1947) (“The concrete decision is binding between the parties to it,
but is the abstract ratio decidendi which alone has the
force of law as regards the world at large”); F. Schauer,
Precedent, in Routledge Companion to Philosophy of Law 129 (A.
Marmor ed. 2012) (“[T]he traditional answer to the question of what
is a precedent is that subsequent cases falling within the ratio
decidendi —or rationale —of the precedent case are
controlled by that case”); N. Duxbury, The Nature and Authority of
Precedent 65–66 (2008). 55 Mandel v. Bradley , 432 U.S.
173 , 176 (1977) ( per curiam ) (quoting Fusari v. Steinberg , 419 U.S.
379 , 392 (1975) (Burger, C. J., concurring); see also Bush v. Vera , 517 U.S.
952 , 1001–1002 (1996) (Thomas, J., concurring in
judgment). 56 The
dissent floats a different theory when it suggests this Court’s
denials of certiorari in cases seeking to clarify Apodaca is
evidence of Apodaca ’s precedential force. Post, at 7.
But “[t]he significance of a denial of a petition for certiorari
ought no longer . . . require discussion. This Court has
said again and again and again that such a denial has no legal
significance whatever bearing on the merits of the claim.” Darr v. Burford , 339 U.S.
200 , 226 (1950) (Frankfurter, J., dissenting). 57 R.
Cross & J. Harris, Precedent in English Law 1 (4th ed. 1991)
(attributing this aphorism to Jeremy Bentham). 58 Pearson v. Callahan , 555 U.S.
223 , 233 (2009) (internal quotation marks
omitted). 59 Agostini v. Felton , 521 U.S.
203 , 235 (1997). 60 Payne v. Tennessee , 501 U.S.
808 , 828 (1991) (internal quotation marks
omitted). 61 Franchise Tax Bd. of Cal. v. Hyatt , 587 U. S. ___, ___ (2019) (slip op., at
17). 62 McDonald , 561 U. S., at
765–766. 63 Timbs , 586 U. S., at ___
(slip op., at 3). Contrary to the dissent’s suggestion, this
Court’s longstanding rejection of dual-track incorporation does not
necessarily imply that the Fourteenth Amendment renders the entire
Bill of Rights applicable to the States. See post, at 17–18.
The scope of an incorporated right and whether a right is
incorporated at all are two different questions. See Timbs ,
586 U. S., at ___–___ (slip op., at 2–3) (“[I]f a Bill of
Rights protection is incorporated, there is no daylight between the
federal and state conduct it prohibits or requires”). 64 See
n. 35, supra . 65 Cf. Leegin Creative Leather Products, Inc. v. PSKS, Inc. , 551 U.S.
877 , 925–926 (2007) (Breyer, J., dissenting). 66 Dickerson v. United
States , 530 U.S.
428 , 443 (2000). 67 Post , at 1, 19. 68 Brief
for State of Oregon as Amicus Curiae 13 (“In 2018 alone
. . . there were 673 felony jury trials in Oregon, and
studies suggest that as many as two-thirds of those cases would
have had a non-unanimous verdict”). At most, Oregon says the number
of cases remaining on direct appeal and affected by today’s
decision “easily may eclipse a thousand.” Id. , at 12
(emphasis added). 69 541 U.S.
36 , 60–63 (2004). 70 556 U.S.
332 , 345–347 (2009). 71 489 U.S.
288 , 311–312 (1989) (plurality opinion). 72 Ibid. 73 See Whorton v. Bockting , 549 U.S.
406 , 417–418 (2007). 74 See Stringer v. Black , 503 U.S.
222 , 227–228 (1992). 75 Post, at 2. 76 Ibid. 77 Post, at 3. 78 Brief
for State of Utah et al. as Amici Curiae 1. 79 See
2018 La. Reg. Sess., Act 722. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–5924

															_________________

															EVANGELISTO RAMOS, PETITIONER v. LOUISIANA

															on writ of certiorari to the court of appeal
of louisiana, fourth circuit

															[April 20, 2020]

															Justice Sotomayor, concurring as to all but
Part IV–A.

															I agree with most of the Court’s rationale, and
so I join all but Part IV–A of its opinion. I write separately,
however, to underscore three points. First, overruling precedent
here is not only warranted, but compelled. Second, the interests at
stake point far more clearly to that outcome than those in other
recent cases. And finally, the racially biased origins of the
Louisiana and Oregon laws uniquely matter here.

															I

															Both the majority and the dissent rightly
emphasize that stare decisis “has been a fundamental part of
our jurisprudence since the founding.” Post , at 12 (opinion
of Alito, J.); see ante , at 20. Indeed, “[w]e generally
adhere to our prior decisions, even if we question their soundness,
because doing so ‘promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial process.’ ” Alleyne v. United States , 570 U.S.
99 , 118 (2013) (Sotomayor, J., concurring) (quoting Payne v. Tennessee , 501 U.S.
808 , 827 (1991)).

															But put simply, this is not a case where we cast
aside precedent “simply because a majority of this Court now
disagrees with” it. Alleyne , 570 U. S., at 133 (Alito,
J., dissenting). Rather, Apodaca v. Oregon, 406 U.S.
464 (1972), was on shaky ground from the start. That was not
because of the functionalist analysis of that Court’s plurality:
Reasonable minds have disagreed over time—and continue to
disagree—about the best mode of constitutional interpretation. That
the plurality in Apodaca used different interpretive tools
from the majority here is not a reason on its own to discard
precedent.

															What matters instead is that, as the majority
rightly stresses, 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. The Court has long recognized that the Sixth Amendment
requires unanimity. Ante, at 11, 20–22. Five Justices in Apodaca itself disagreed with that plurality’s contrary view
of the Sixth Amendment. Justice Powell’s theory of dual-track
incorporation also fared no better: He recognized that his argument
on that score came “late in the day.” Johnson v. Louisiana , 406 U.S.
356 , 375 (1972) (concurring opinion).

															Moreover, “[t]he force of stare decisis is at its nadir in cases concerning [criminal] procedur[e] rules
that implicate fundamental constitutional protections.” Alleyne , 570 U. S., at 116, n. 5. And the
constitutional protection here ranks among the most essential: the
right to put the State to its burden, in a jury trial that comports
with the Sixth Amendment, before facing criminal punishment. See Codispoti v. Pennsylvania , 418
U.S. 506 , 515–516 (1974) (“The Sixth Amendment represents a
deep commitment of the Nation to the right of jury trial in serious
criminal cases as a defense against arbitrary law enforcement”
(internal quotation marks omitted)). Where the State’s power to
imprison those like Ramos rests on an erroneous interpretation of
the jury-trial right, the Court should not hesitate to reconsider
its precedents.

															II

															In contrast to the criminal-procedure context,
“[c]onsiderations in favor of stare decisis are at their
acme in cases involving property and contract rights.” Payne , 501 U. S., at 828. Despite that fact, the Court has
recently overruled precedent where the Court’s shift threatened
vast regulatory and economic consequences. Janus v. State, County, and Municipal Employees , 585 U. S. ___
(2018); id ., at ___ (Kagan, J., dissenting) (slip op., at
23) (noting that the Court’s opinion called into question
“thousands of . . . contracts covering millions of
workers”); see South Dakota v. Wayfair, Inc. , 585
U. S. ___, ___ (2018) (slip op., at 21) (noting the
“legitimate” burdens that the Court’s overruling of precedent would
place on vendors who had started businesses in reliance on a
previous decision).

															This case, by contrast, threatens no broad
upheaval of private economic rights. Particularly when compared to
the interests of private parties who have structured their affairs
in reliance on our decisions, the States’ interests here in
avoiding a modest number of retrials—emphasized at such length by
the dissent—are much less weighty. They are certainly not new:
Opinions that force changes in a State’s criminal procedure
typically impose such costs. And were this Court to take the
dissent’s approach—defending criminal-procedure opinions as wrong
as Apodaca simply to avoid burdening criminal justice
systems—it would never correct its criminal jurisprudence at
all.

															To pick up on the majority’s point, ante ,
at 23, in that alternate universe, a trial judge alone could still
decide the critical facts necessary to sentence a defendant to
death. Walton v. Arizona , 497
U.S. 639 (1990), overruled by Ring v. Arizona , 536 U.S.
584 (2002). An officer would still be able to search a car upon
the arrest of any one of its recent occupants. New York v. Belton , 453 U.S.
454 (1981), holding limited by Arizona v. Gant , 556 U.S.
332 (2009). And States could still deprive a defendant of the
right to confront her accuser so long as the incriminating
statement was “reliable.” Ohio v. Roberts , 448 U.S.
56 (1980), abrogated by Crawford v. Washington , 541 U.S.
36 (2004). The Constitution demands more than the continued use
of flawed criminal procedures—all because the Court fears the
consequences of changing course.

															III

															Finally, the majority vividly describes the
legacy of racism that generated Louisiana’s and Oregon’s laws. Ante, at 1–2, 13–14, and n. 44. Although Ramos does not
bring an equal protection challenge, the history is worthy of this
Court’s attention. That is not simply because that legacy existed
in the first place—unfortunately, many laws and policies in this
country have had some history of racial animus—but also because the
States’ legislatures never truly grappled with the laws’ sordid
history in reenacting them. See generally United States v. Fordice , 505 U.S.
717 , 729 (1992) (policies that are “traceable” to a State’s de jure racial segregation and that still “have
discriminatory effects” offend the Equal Protection Clause).

															Where a law otherwise is untethered to racial
bias—and perhaps also where a legislature actually confronts a
law’s tawdry past in reenacting it—the new law may well be free of
discriminatory taint. That cannot be said of the laws at issue
here. While the dissent points to the “legitimate” reasons for
Louisiana’s reenactment, post , at 3–4, Louisiana’s perhaps
only effort to contend with the law’s discriminatory purpose and
effects came recently, when the law was repealed altogether.

															Today, Louisiana’s and Oregon’s laws are
fully—and rightly—relegated to the dustbin of history. And so, too,
is Apodaca . While overruling precedent must be rare, this
Court should not shy away from correcting its errors where the
right to avoid imprisonment pursuant to unconstitutional procedures
hangs in the balance. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–5924

															_________________

															EVANGELISTO RAMOS, PETITIONER v. LOUISIANA

															on writ of certiorari to the court of appeal
of louisiana, fourth circuit

															[April 20, 2020]

															Justice Kavanaugh, concurring in part.

															In Apodaca v. Oregon , this Court
held that state juries need not be unanimous in order to convict a
criminal defendant. 406 U.S.
404 (1972). Two States, Louisiana and Oregon, have continued to
use non-unanimous juries in criminal cases. Today, the Court
overrules Apodaca and holds that state juries must be
unanimous in order to convict a criminal defendant . I agree with the Court that the time has come to
overrule Apodaca . I therefore join the introduction and
Parts I, II–A, III, and IV–B–1 of the Court’s persuasive and
important opinion. I write separately to explain my view of how stare decisis applies to this case.

															I

															The legal doctrine of stare decisis derives from the Latin maxim “ stare decisis et non quieta
movere ,” which means to stand by the thing decided and not
disturb the calm. The doctrine reflects respect for the accumulated
wisdom of judges who have previously tried to solve the same
problem. In 1765, Blackstone—“the preeminent authority on English
law for the founding generation,” Alden v. Maine , 527 U.S.
706 , 715 (1999)—wrote that “it is an established rule to abide
by former precedents,” to “keep the scale of justice even and
steady, and not liable to waver with every new judge’s opinion.” 1
W. Blackstone, Commentaries on the Laws of England 69 (1765). The
Framers of our Constitution understood that the doctrine of stare decisis is part of the “judicial Power” and rooted in
Article III of the Constitution. Writing in Federalist 78,
Alexander Hamilton emphasized the importance of stare
decisis : To “avoid an arbitrary discretion in the courts, it is
indispensable” that federal judges “should be bound down by strict
rules and precedents, which serve to define and point out their
duty in every particular case that comes before them.” The
Federalist No. 78, p. 529 (J. Cooke ed. 1961). In the words of The
Chief Justice, stare decisis ’ “greatest purpose is to serve
a constitutional ideal—the rule of law.” Citizens United v. Federal Election Comm’n , 558
U.S. 310 , 378 (2010) (concurring opinion).

															This Court has repeatedly explained that stare decisis “promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial process.” Payne v. Tennessee , 501
U.S. 808 , 827 (1991). The doctrine “permits society to presume
that bedrock principles are founded in the law rather than in the
proclivities of individuals, and thereby contributes to the
integrity of our constitutional system of government, both in
appearance and in fact.” Vasquez v. Hillery , 474 U.S.
254 , 265–266 (1986).

															The doctrine of stare decisis does not
mean, of course, that the Court should never overrule erroneous
precedents. All Justices now on this Court agree that it is
sometimes appropriate for the Court to overrule erroneous
decisions. Indeed, in just the last few Terms, every current Member
of this Court has voted to overrule multiple constitutional
precedents. See, e.g., Knick v. Township of Scott ,
588 U. S. ___ (2019); Franchise Tax Bd. of Cal. v. Hyatt , 587 U. S. ___ (2019); Janus v. State,
County, and Municipal Employees , 585 U. S. ___ (2018); Hurst v. Florida , 577 U. S. ___ (2016); Obergefell v. Hodges , 576 U.S. 644 (2015); Johnson v. United States , 576 U.S. 591 (2015); Alleyne v. United States , 570 U.S.
99 (2013); see also Baude, Precedent and Discretion, 2020
S. Ct. Rev. 1, 4 (forthcoming) (“Nobody on the Court believes
in absolute stare decisis”).

															Historically, moreover, some of the Court’s most
notable and consequential decisions have entailed overruling
precedent. See, e.g., Obergefell v. Hodges , 576 U.S.
644 (2015); Citizens United v. Federal Election
Comm’n , 558 U.S.
310 (2010); Montejo v. Louisiana , 556 U.S.
778 (2009); Crawford v. Washington , 541 U.S.
36 (2004); Lawrence v. Texas , 539 U.S.
558 (2003); Ring v. Arizona , 536 U.S.
584 (2002); Agostini v. Felton , 521 U.S.
203 (1997); Seminole Tribe of Fla. v. Florida , 517 U.S.
44 (1996); Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S.
833 (1992);[ 1 ] Payne v. Tennessee , 501 U.S.
808 (1991); Batson v. Kentucky , 476 U.S.
79 (1986); Garcia v. San Antonio Metropolitan Transit
Authority , 469 U.S.
528 (1985); Illinois v. Gates , 462 U.S.
213 (1983); United States v. Scott , 437 U.S.
82 (1978); Craig v. Boren , 429 U.S.
190 (1976); Taylor v. Louisiana , 419 U.S.
522 (1975); Brandenburg v. Ohio , 395 U.S.
444 (1969) ( per curiam ); Katz v. United
States , 389 U.S.
347 (1967); Miranda v. Arizona , 384 U.S.
436 (1966); Malloy v. Hogan , 378 U.S. 1 (1964); Wesberry v. Sanders , 376 U.S.
1 (1964); Gideon v. Wainwright , 372 U.S.
335 (1963); Baker v. Carr , 369 U.S.
186 (1962); Mapp v. Ohio , 367
U.S. 643 (1961); Brown v. Board of Education , 347 U.S.
483 (1954); Smith v. Allwright , 321 U.S.
649 (1944); West Virginia Bd. of Ed. v. Barnette , 319 U.S.
624 (1943); United States v. Darby , 312 U.S.
100 (1941); Erie R. Co. v. Tompkins , 304 U.S.
64 (1938); West Coast Hotel Co. v. Parrish , 300 U.S.
379 (1937).

															The lengthy and extraordinary list of landmark
cases that overruled precedent includes the single most important
and greatest decision in this Court’s history, Brown v. Board of Education , which repudiated the separate but equal
doctrine of Plessy v. Ferguson , 163 U.S.
537 (1896).

															As those many examples demonstrate, the doctrine
of stare decisis does not dictate, and no one seriously
maintains, that the Court should never overrule erroneous
precedent. As the Court has often stated and repeats today, stare decisis is not an “inexorable command.” E.g.,
ante, at 20.

															On the other hand, as Justice Jackson explained,
just “because one should avoid Scylla is no reason for crashing
into Charybdis.” Jackson, Decisional Law and Stare Decisis, 30
A. B. A. J. 334 (1944). So no one advocates that the
Court should always overrule erroneous precedent.

															Rather, applying the doctrine of stare
decisis , this Court ordinarily adheres to precedent, but sometimes overrules precedent. The difficult question, then,
is when to overrule an erroneous precedent.

															To begin with, the Court’s precedents on
precedent distinguish statutory cases from constitutional
cases.

															In statutory cases, stare decisis is
comparatively strict, as history shows and the Court has often
stated. That is because Congress and the President can alter a
statutory precedent by enacting new legislation. To be sure,
enacting new legislation requires finding room in a crowded
legislative docket and securing the agreement of the House, the
Senate (in effect, 60 Senators), and the President. Both by design
and as a matter of fact, enacting new legislation is difficult—and
far more difficult than the Court’s cases sometimes seem to assume.
Nonetheless, the Court has ordinarily left the updating or
correction of erroneous statutory precedents to the legislative
process. See, e.g., Kimble v. Marvel
Entertainment, LLC , 576 U.S. 446, 456–457 (2015); Patterson v. McLean Credit Union , 491 U.S.
164 , 172–173 (1989); Flood v. Kuhn , 407 U.S.
258 , 283–284 (1972). The principle that “it is more important
that the applicable rule of law be settled than that it be settled
right” is “commonly true even where the error is a matter of
serious concern, provided correction can be had by
legislation .” Burnet v. Coronado Oil & Gas
Co. , 285 U.S.
393 , 406 (1932) (Brandeis, J., dissenting) (emphasis
added).[ 2 ]

															In constitutional cases, by contrast, the Court
has repeatedly said—and says again today—that the doctrine of stare decisis is not as “inflexible.” Burnet , 285
U. S., at 406 (Brandeis, J., dissenting); see also ante, at 20; Payne , 501 U. S., at 828; Scott , 437 U. S., at 101. The reason is
straightforward: As Justice O’Connor once wrote for the Court, stare decisis is not as strict “when we interpret the
Constitution because our interpretation can be altered only by
constitutional amendment or by overruling our prior decisions.” Agostini , 521 U. S., at 235. The Court therefore “must
balance the importance of having constitutional questions decided against the importance of having them decided
right. ” Citizens United , 558 U. S., at 378
(Roberts, C. J., concurring). It follows “that in the unusual
circumstance when fidelity to any particular precedent does more to
damage this constitutional ideal than to advance it, we must be
more willing to depart from that precedent.” Ibid. In his
canonical opinion in Burnet , Justice Brandeis described the
Court’s practice with respect to stare decisis in
constitutional cases in a way that was accurate then and remains
accurate now: In “cases involving the Federal Constitution, where
correction through legislative action is practically impossible,
this Court has often overruled its earlier decisions.” 285
U. S., at 406–407 (dissenting opinion).

															That said, in constitutional as in statutory
cases, to “overrule an important precedent is serious business.”
Jackson, 30 A. B. A. J., at 334. In constitutional as in
statutory cases, adherence to precedent is the norm. To overrule a
constitutional decision, the Court’s precedents on precedent still
require a “special justification,” Allen v. Cooper ,
589 U. S. ___, ___ (2020) (slip op., at 9) (internal quotation
marks omitted); Arizona v. Rumsey , 467 U.S.
203 , 212 (1984), or otherwise stated, “strong grounds,” Janus , 585 U. S., at ___ (slip op., at 34).

															In particular, to overrule a constitutional
precedent, the Court requires something “over and above the belief
that the precedent was wrongly decided.” Allen , 589
U. S., at ___ (slip op., at 9) (internal quotation marks
omitted). As Justice Scalia put it, the doctrine of stare
decisis always requires “reasons that go beyond mere
demonstration that the overruled opinion was wrong,” for “otherwise
the doctrine would be no doctrine at all.” Hubbard v. United States , 514 U.S.
695 , 716 (1995) (opinion concurring in part and concurring in
judgment). To overrule, the Court demands a special justification
or strong grounds.

															But the “special justification” or “strong
grounds” formulation elides a key question: What constitutes a
special justification or strong grounds?[ 3 ] In other words, in deciding whether to overrule an
erroneous constitutional decision, how does the Court know when to
overrule and when to stand pat?

															As the Court has exercised the “judicial Power”
over time, the Court has identified various stare decisis factors. In articulating and applying those factors, the Court has,
to borrow James Madison’s words, sought to liquidate and ascertain
the meaning of the Article III “judicial Power” with respect to
precedent. The Federalist No. 37, at 236.

															The stare decisis factors identified by
the Court in its past cases include:

															the quality of the precedent’s reasoning;

															the precedent’s consistency and coherence with
previous or subsequent decisions;

															changed law since the prior decision;

															changed facts since the prior decision;

															the workability of the precedent;

															the reliance interests of those who have relied
on the precedent; and

															the age of the precedent.

															But the Court has articulated and applied
those various individual factors without establishing any
consistent methodology or roadmap for how to analyze all of the
factors taken together. And in my view, that muddle poses a problem
for the rule of law and for this Court, as the Court attempts to
apply stare decisis principles in a neutral and consistent
manner.

															As I read the Court’s cases on precedent, those
varied and somewhat elastic stare decisis factors fold into
three broad considerations that, in my view, can help guide the
inquiry and help determine what constitutes a “special
justification” or “strong grounds” to overrule a prior
constitutional decision. First , is the prior decision not just
wrong, but grievously or egregiously wrong? A garden-variety error
or disagreement does not suffice to overrule. In the view of the
Court that is considering whether to overrule, the precedent must
be egregiously wrong as a matter of law in order for the Court to
overrule it. In conducting that inquiry, the Court may examine the
quality of the precedent’s reasoning, consistency and coherence
with other decisions, changed law, changed facts, and workability,
among other factors. A case may be egregiously wrong when decided,
see, e.g ., Korematsu v. United States , 323 U.S.
214 (1944); Plessy v. Ferguson , 163 U.S.
537 (1896), or may be unmasked as egregiously wrong based on
later legal or factual understandings or developments, see, e.g ., Nevada v. Hall , 440
U.S. 410 (1979), or both, ibid . Second , has the prior decision caused
significant negative jurisprudential or real-world consequences? In
conducting that inquiry, the Court may consider jurisprudential
consequences (some of which are also relevant to the first
inquiry), such as workability, as well as consistency and coherence
with other decisions, among other factors. Importantly, the Court
may also scrutinize the precedent’s real-world effects on the
citizenry, not just its effects on the law and the legal system.
See, e.g., Brown v. Board of Education , 347
U. S., at 494–495; Barnette , 319 U. S., at
630–642; see also Payne , 501 U. S., at 825–827. Third , would overruling the prior
decision unduly upset reliance interests? This consideration
focuses on the legitimate expectations of those who have reasonably
relied on the precedent. In conducting that inquiry, the Court may
examine a variety of reliance interests and the age of the
precedent, among other factors.

															In short, the first consideration requires
inquiry into how wrong the precedent is as a matter of law. The
second and third considerations together demand, in Justice
Jackson’s words, a “sober appraisal of the disadvantages of the
innovation as well as those of the questioned case, a weighing of
practical effects of one against the other.” Jackson, 30
A. B. A. J., at 334.

															Those three considerations together provide a
structured methodology and roadmap for determining whether to
overrule an erroneous constitutional precedent. The three
considerations correspond to the Court’s historical practice and
encompass the various individual factors that the Court has applied
over the years as part of the stare decisis calculus. And
they are consistent with the Founding understanding and, for
example, Blackstone’s shorthand description that overruling is
warranted when (and only when) a precedent is “manifestly absurd or
unjust.” 1 Blackstone, Commentaries on the Laws of England , at 70.

															Taken together, those three considerations set a
high (but not insurmountable) bar for overruling a precedent, and
they therefore limit the number of overrulings and maintain
stability in the law.[ 4 ] Those
three considerations also constrain judicial discretion in deciding
when to overrule an erroneous precedent. To be sure, applying those
considerations is not a purely mechanical exercise, and I do not
claim otherwise. I suggest only that those three considerations may
better structure how to consider the many traditional stare
decisis factors.

															It is inevitable that judges of good faith
applying the stare decisis considerations will sometimes
disagree about when to overrule an erroneous constitutional
precedent, as the Court does in this case. To begin with, judges
may disagree about whether a prior decision is wrong in the first
place—and importantly, that disagreement is sometimes the real dispute when judges joust over stare decisis .
But even when judges agree that a prior decision is wrong, they may
dis- agree about whether the decision is so egregiously wrong as to
justify an overruling. Judges may likewise disagree about the
severity of the jurisprudential or real-world consequences caused
by the erroneous decision and, therefore, whether the decision is
worth overruling. In that regard, some judges may think that the
negative consequences can be addressed by narrowing the precedent
(or just living with it) rather than outright overruling it. Judges
may also disagree about how to measure the relevant reliance
interests that might be affected by an overruling. And on top of
all of that, judges may also disagree about how to weigh and
balance all of those competing considerations in a given
case.[ 5 ]

															This case illustrates that point. No Member of
the Court contends that the result in Apodaca is correct.
But the Members of the Court vehemently disagree about whether to
overrule Apodaca .

															II

															Applying the three broad stare decisis considerations to this case, I agree with the Court’s decision to
overrule Apodaca . First , Apodaca is egregiously
wrong. The original meaning and this Court’s precedents establish
that the Sixth Amendment requires a unanimous jury. Ante, at
6–7; see, e.g., Patton v. United States , 281 U.S.
276 , 288 (1930); Thompson v. Utah , 170 U.S.
343 , 351 (1898). And the original meaning and this Court’s
precedents establish that the Fourteenth Amendment incorporates the
Sixth Amendment jury trial right against the States. See Duncan v. Louisiana , 391 U.S.
145 , 149 (1968); id., at 166 (Black, J., concurring);
see also Malloy , 378 U. S., at 10–11; see generally Timbs v. Indiana , 586 U. S. ___ (2019); McDonald v. Chicago , 561 U.S.
742 (2010). When Apodaca was decided, it was already an
outlier in the Court’s jurisprudence, and over time it has become
even more of an outlier. As the Court today persuasively explains,
the original meaning of the Sixth and Fourteenth Amendments and
this Court’s two lines of decisions—the Sixth Amendment jury cases
and the Fourteenth Amendment incorporation cases—overwhelmingly
demonstrate that Apodaca ’s holding is egregiously
wrong.[ 6 ] Second , Apodaca causes significant
negative consequences. It is true that Apodaca is workable.
But Apodaca sanctions the conviction at trial or by guilty
plea of some defendants who might not be convicted under the proper
constitutional rule (although exactly how many is of course
unknowable). That consequence has traditionally supplied some
support for overruling an egregiously wrong criminal-procedure
precedent. See generally Malloy , 378 U.S.
1 .

															In addition, and significant to my analysis of
this case, the origins and effects of the non-unanimous jury rule
strongly support overruling Apodaca . Louisiana achieved
statehood in 1812. And throughout most of the 1800s, the State
required unanimous juries in criminal cases. But at its 1898 state
constitutional convention, Louisiana enshrined non-unanimous juries
into the state constitution. Why the change? The State wanted to
diminish the influence of black jurors, who had won the right to
serve on juries through the Fourteenth Amendment in 1868 and the
Civil Rights Act of 1875. See Strauder v. West
Virginia , 100 U.S.
303 , 308–310 (1880); T. Aiello, Jim Crow’s Last Stand:
Nonunanimous Criminal Jury Verdicts in Louisiana 16, 19 (2015).
Coming on the heels of the State’s 1896 victory in Plessy v. Ferguson , 163 U.S.
537 , the 1898 constitutional convention expressly sought to
“establish the supremacy of the white race.” Semmes, Chairman of
the Committee on the Judiciary, Address at the Louisiana
Constitutional Convention in 1898, in Official Journal of the
Proceedings of the Constitutional Convention of the State of
Louisiana 375 (H. Hearsey ed. 1898). And the convention
approved non-unanimous juries as one pillar of a comprehensive and
brutal program of racist Jim Crow measures against
African-Americans, especially in voting and jury service. See
Aiello, supra , at 16–26; Frampton, The Jim Crow Jury, 71
Vand. L. Rev. 1593, 1620 (2018).[ 7 ]

															In light of the racist origins of the
non-unanimous jury, it is no surprise that non-unanimous juries can
make a difference in practice, especially in cases involving black
defendants, victims, or jurors. After all, that was the whole point
of adopting the non-unanimous jury requirement in the first place.
And the math has not changed. Then and now, non-unanimous juries
can silence the voices and negate the votes of black jurors,
especially in cases with black defendants or black victims, and
only one or two black jurors. The 10 jurors “can simply ignore the
views of their fellow panel members of a different race or class.” Johnson v. Louisiana , 406 U.S.
356 , 397 (1972) (Stewart, J., dissenting). That reality—and the
resulting perception of unfairness and racial bias—can undermine
confidence in and respect for the criminal justice system. The
non-unanimous jury operates much the same as the unfettered
peremptory challenge, a practice that for many decades likewise
functioned as an engine of discrimination against black defendants,
victims, and jurors. In effect, the non-unanimous jury allows
backdoor and unreviewable peremptory strikes against up to 2 of the
12 jurors.

															In its 1986 decision in Batson v. Kentucky , the Court recognized the pervasive racial
discrimination woven into the traditional system of unfettered
peremptory challenges. See 476 U. S., at 85–89, 91. The Court
therefore overruled a prior decision, Swain v. Alabama , 380 U.S.
202 (1965), that had allowed those challenges. See generally Flowers v. Mississippi , 588 U. S. ___
(2019).

															In my view, Apodaca warrants the same
fate as Swain . After all, the “requirements of unanimity and
impartial selection thus complement each other in ensuring the fair
performance of the vital functions of a criminal court jury.” Johnson , 406 U. S., at 398 (Stewart, J., dissenting).
And as Justice Thurgood Marshall forcefully explained in dissent in Apodaca , to “fence out a dissenting juror fences out a voice
from the community, and undermines the principle on which our whole
notion of the jury now rests.” Johnson, 406 U. S., at
402 (Marshall, J., dissenting in both Johnson and Apodaca ).

															To be clear, one could advocate for and justify
a non-unanimous jury rule by resort to neutral and legitimate
principles. England has employed non-unanimous juries, and various
legal organizations in the United States have at times championed
non-unanimous juries. See, e.g., Juries Act 1974, ch. 23,
§17 (Eng.); ABA Project on Standards for Criminal Justice, Trial By
Jury §1.1, p. 7 (App. Draft 1968); ALI, Code of Criminal Procedure
§355, p. 99 (1930). And Louisiana’s modern policy decision to
retain non- unanimous juries—as distinct from its original decision
in the late 1800s to adopt non-unanimous juries—may have been
motivated by neutral principles (or just by inertia).

															But the question at this point is not whether
the Constitution prohibits non-unanimous juries. It does. Rather,
the disputed question here is whether to overrule an erroneous
constitutional precedent that allowed non-unanimous juries. And on
that question—the question whether to overrule—the Jim Crow origins
and racially discriminatory effects (and the perception
thereof ) of non-unanimous juries in Louisiana and Oregon
should matter and should count heavily in favor of overruling, in
my respectful view. After all, the non-unanimous jury “is today the
last of Louisiana’s Jim Crow laws.” Aiello, supra, at 63.
And this Court has emphasized time and again the “imperative to
purge racial prejudice from the administration of justice”
generally and from the jury system in particular. Pena-
Rodriguez v. Colorado , 580 U. S. ___, ___–___
(2017) (slip op., at 13–14) (collecting cases).

															To state the point in simple terms: Why stick by
an erroneous precedent that is egregiously wrong as a matter of
constitutional law, that allows convictions of some who would not
be convicted under the proper constitutional rule, and that
tolerates and reinforces a practice that is thoroughly racist in
its origins and has continuing racially discriminatory effects? Third , overruling Apodaca would
not unduly upset reliance interests. Only Louisiana and Oregon
employ non-unanimous juries in criminal cases. To be sure, in those
two States, the Court’s decision today will invalidate some
non-unanimous convictions where the issue is preserved and the case
is still on direct review . But that consequence almost
always ensues when a criminal-procedure precedent that favors the
government is overruled. See Ring , 536
U.S. 584 ; Batson , 476 U.S.
79 . And here, at least, I would “count that a small price to
pay for the uprooting of this weed.” Hubbard , 514
U. S., at 717 (Scalia, J., concurring in part and concurring
in judgment).

															Except for the effects on that limited class of
direct- review cases, it will be relatively easy going forward for
Louisiana and Oregon to transition to the unanimous jury rule that
the other 48 States and the federal courts use. Indeed, in 2018,
Louisiana amended its constitution to require jury unanimity in
criminal trials for crimes committed on or after January 1, 2019,
meaning that the transition is already well under way in
Louisiana.

															Importantly, moreover, this Court applies a
separate non-retroactivity doctrine to mitigate the disruptive
effects of overrulings in criminal cases. Under the Court’s
precedents, new constitutional rules apply on direct review, but
generally do not apply retroactively on habeas corpus review. See Teague v. Lane , 489 U.S.
288 , 311 (1989) (plurality opinion); Griffith v. Kentucky , 479 U.S.
314 , 328 (1987). Teague recognizes only two exceptions
to that general habeas non-retroactivity principle: “if (1) the
rule is substantive or (2) the rule is a ‘watershed rul[e] of
criminal procedure’ implicating the fundamental fairness and
accuracy of the criminal proceeding.” Whorton v. Bockting , 549 U.S.
406 , 416 (2007) (internal quotation marks omitted). The new
rule announced today—namely, that state criminal juries must be
unanimous—does not fall within either of those two narrow Teague exceptions and therefore, as a matter of federal law,
should not apply retroactively on habeas corpus review.

															The first Teague exception does not apply
because today’s new rule is procedural, not substantive: It affects
“only the manner of determining the defendant’s
culpability.” Schriro v. Summerlin , 542 U.S.
348 , 353 (2004).

															The second Teague exception does not
apply because today’s new rule, while undoubtedly important, is not
a “watershed” procedural rule. This Court has flatly stated that
“it is unlikely that any such rules” have “yet to emerge.” Whorton , 549 U. S., at 417 (internal quotation marks
omitted). In “the years since Teague , we have rejected every
claim that a new rule satisfied the requirements for watershed
status.” Id. , at 418, 421 (rejecting retroactivity for Crawford v. Washington , 541 U.S.
36 (2004)); see, e.g., Beard v. Banks , 542 U.S.
406 , 420 (2004) (rejecting retroactivity for Mills v. Maryland , 486 U.S.
367 (1988)); Summerlin , 542 U. S., at 358
(rejecting retroactivity for Ring v. Arizona , 536 U.S.
584 (2002)); O’Dell v. Netherland , 521 U.S.
151 , 167–168 (1997) (rejecting retroactivity for Simmons v. South Carolina , 512 U.S.
154 (1994)); Lambrix v. Singletary , 520 U.S.
518 , 539–540 (1997) (rejecting retroactivity for Espinosa v. Florida , 505 U.S.
1079 (1992) ( per curiam )); Sawyer v. Smith , 497 U.S.
227 , 241–245 (1990) (rejecting retroactivity for Caldwell v. Mississippi , 472
U.S. 320 (1985)); see also Allen v. Hardy , 478
U.S. 255 , 261 (1986) ( per curiam ) (rejecting
retroactivity for Batson v. Kentucky , 476 U.S.
79 (1986)); DeStefano v. Woods , 392 U.S.
631 , 635 (1968) ( per curiam ) (rejecting retroactivity
for Duncan, 391 U. S. 145).

															So assuming that the Court faithfully applies Teague , today’s decision will not apply retroactively on
federal habeas corpus review and will not disturb convictions that
are final.[ 8 ]

															In addition, as to
ineffective-assistance-of-counsel claims, an attorney presumably
would not have been deficient for failing to raise a constitutional
jury-unanimity argument before today’s decision—or at the very
least, before the Court granted certiorari in this case. Before
today, after all, this Court’s precedents had repeatedly allowed
non-unanimous juries in state criminal cases. In that situation,
the Courts of Appeals have consistently held that an attorney is
not ineffective for failing to anticipate or advocate for the
overruling of a constitutional precedent of this Court. See, e.g., Walker v. United States , 810 F.3d 568, 577 (CA8
2016); United States v. Smith , 241 F.3d 546 , 548 (CA7 2001); Honeycutt v. Mahoney , 698 F.2d 213, 216–217 (CA4 1983); see also Steiner v. United States , 940 F.3d 1282, 1293 (CA11
2019) ( per curiam ); Snider v. United States ,
908 F.3d 183, 192 (CA6 2018); Green v. Johnson , 116 F.3d 1115 , 1125 (CA5 1997).

															For those reasons, the reliance interests at
stake in this case are not especially substantial, and they do not
mandate adherence to Apodaca .[ 9 ]

															*  *  *

															In sum, Apodaca is egregiously wrong,
it has significant negative consequences, and overruling it would
not unduly upset reliance interests. I therefore agree with the
Court’s decision to overrule Apodaca. [ 10 ] Notes 1 In Casey , the
Court reaffirmed what it described as the “central holding” of Roe v. Wade , 410 U.S.
113 (1973), the Court expressly rejected Roe ’s trimester
framework, and the Court expressly overruled two other important
abortion precedents, Akron v. Akron Center for
Reproductive Health, Inc. , 462 U.S.
416 (1983), and Thornburgh v. American College of
Obstetricians and Gynecologists , 476 U.S.
747 (1986). See Casey , 505 U. S., at 861; id., at 870, 873 (plurality opinion). 2 The Court’s precedents
applying common-law statutes and pronouncing the Court’s own
interpretive methods and principles typically do not fall within
that category of stringent statutory stare decisis . See Leegin Creative Leather Products, Inc. v. PSKS, Inc. , 551 U.S.
877 , 899–907 (2007); Kisor v. Wilkie , 588
U. S. ___, ___–___ (2019) (Gorsuch, J., concurring in
judgment) (slip op., at 34–36). 3 The Court first used the
term “special justification” in the stare decisis context in
1984, without explaining what the term might entail. See Arizona v. Rumsey , 467 U.S.
203 , 212. In employing that term, the Court did not suggest
that it was imposing a new stare decisis requirement as
opposed to merely describing the Court’s historical practice with
respect to stare decisis . 4 Another important factor
that limits the number of overrulings is that the Court typically
does not overrule a precedent unless a partyrequests overruling, or
at least unless the Court receives briefing and argument on the stare decisis question. 5 To be clear, the stare
decisis issue in this case is one of horizontal stare
decisis —that is, the respect that this Court owes to its own
precedents and the circumstances under which this Court may
appropriately overrule a precedent. By contrast, vertical stare
decisis is absolute, as it must be in a hierarchical system
with “one supreme Court.” U. S. Const., Art III, §1. In other
words, the state courts and the other federal courts have a
constitutional obligation to follow a precedent of this Courtunless
and until it is overruled by this Court. See Rodriguez de
Quijas v. Shearson/American Express, Inc. , 490 U.S.
477 , 484 (1989). 6 Notwithstanding the
splintered 4–1–4 decision in Apodaca , its bottom-line result
carried precedential force. In the American system of stare
decisis , the result and the reasoning each independently have
precedential force, and courts are therefore bound to follow both
the result and the reasoning of a prior decision. See Seminole
Tribe of Fla. v. Florida , 517 U.S.
44 , 67 (1996); Randall v. Sorrell , 548 U.S.
230 , 243 (2006) (opinion of Breyer, J.); County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter , 492 U.S.
573 , 668 (1989) (Kennedy, J., concurring in judgment in part
and dissenting in part). The result of Apodaca was that
state criminal juries need not be unanimous. That precedential
result has been followed by this Court and the other federal and
state courts for the last 48 years. To be sure, Apodaca had
no majority opinion. When the Court’s decision is splintered,
courts follow the result, and they also follow the reasoning or
standards set forth in the opinion constituting the “narrowest
grounds” of the Justices in the majority. See Marks v. United States , 430 U.S.
188 , 193 (1977). That Marks rule is ordinarily
commonsensical to apply and usually means that courts in essence
heed the opinion that occupies the middle-ground position between
(i) the broadest opinion among the Justices in the majority and
(ii) the dissenting opinion. See United States v. Duvall , 740 F.3d 604, 610–611 (CADC 2013) (Kavanaugh, J.,
concurring in denial of rehearing en banc). On very rare occasions,
as in Apodaca , it can be difficult to discern which
opinion’s reasoning has precedential effect under Marks. See
also Nichols v. United States , 511 U.S.
738 , 745–746 (1994) (analyzing Baldasar v. Illinois , 446 U.S.
222 (1980) ( per curiam )). But even when that happens,
the result of the decision still constitutes a binding
precedent for the federal and state courts, and for this Court,
unless and until it is overruled by this Court. As I read the
Court’s various opinions today, six Justices treat the result in Apodaca as a precedent for purposes of stare decisis analysis. A different group of six Justices concludes that Apodaca should be and is overruled. 7 Oregon adopted the
non-unanimous jury practice in 1934—one manifestation of the
extensive 19th- and early 20th-century history of racist and
anti-Semitic sentiment in that State. See Kaplan & Saack,
Overturning Apodaca v. Oregon Should Be Easy: Nonunanimous
Jury Verdicts in Criminal Cases Undermine the Credibility of Our
Justice System, 95 Ore. L. Rev. 1, 3, 43–51 (2016); Mooney,
Remembering 1857, 87 Ore. L. Rev. 731, 778, n. 174
(2008). 8 In Allen v. Hardy , 478 U.S.
255 (1986) ( per curiam ), this Court
concluded—without briefing or oral argument—that Batson would not apply retroactively. Under the well-settled Teague principles, there should be no doubt that today’s decision likewise
will not apply retroactively on collateral review. 9 Justice Alito’s
characteristically incisive dissent rests largely on his view of
the States’ reliance interests. My respectful disagreement with
Justice Alito primarily boils down to our different assessments of
those reliance interests—in particular, our different evaluations
of how readily Louisiana and Oregon can adjust to an overruling of Apodaca. 10 As
noted above, I join the introduction and Parts I, II–A, III, and
IV–B–1 of Justice Gorsuch’s opinion for the Court. The remainder of
Justice Gorsuch’s opinion does not command a majority. That point
is important with respect to Part IV–A, which only three Justices
have joined. It appears that six Justices of the Court treat the
result in Apodaca as a precedent and therefore do not
subscribe to the analysis in Part IV–A of Justice Gorsuch’s
opinion. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–5924

															_________________

															EVANGELISTO RAMOS, PETITIONER v. LOUISIANA

															on writ of certiorari to the court of appeal
of louisiana, fourth circuit

															[April 20, 2020]

															Justice Thomas, concurring in the
judgment.

															I agree with the Court that petitioner
Evangelisto Ramos’ felony conviction by a nonunanimous jury was
unconstitutional. I write separately because I would resolve this
case based on the Court’s longstanding view that the Sixth
Amendment includes a protection against nonunanimous felony guilty
verdicts, without undertaking a fresh analysis of the meaning of
“trial . . . by an impartial jury.” I also would make
clear that this right applies against the States through the
Privileges or Immunities Clause of the Fourteenth Amendment, not
the Due Process Clause.

															I

															I begin with the parties’ dispute as to
whether the Sixth Amendment right to a trial by jury includes a
protection against nonunanimous felony guilty verdicts. On this
question, I do not write on a blank slate. As the Court
acknowledges, our decisions have long recognized that unanimity is
required. See ante , at 6–7. Because this interpretation is
not demonstrably erroneous, I would resolve the Sixth Amendment
question on that basis.

															A

															This Court first decided that the Sixth
Amendment protected a right to unanimity in Thompson v. Utah , 170 U.S.
343 (1898). The Court reasoned that Thompson, a Utah prisoner,
was protected by the Sixth Amendment when Utah was still a
Territory because “the right of trial by jury in suits at common
law appl[ied] to the Territories of the United States.” Id. ,
at 346. The Court then stated that this right “made it impossible
to deprive him of his liberty except by [a] unanimous verdict.” Id. , at 355; see also id. , at 351, 353.

															The Court has repeatedly reaffirmed the Sixth
Amendment’s unanimity requirement. In Patton v. United
States , 281 U.S.
276 (1930), the Court stated that the Sixth Amendment protects
the right “that the verdict should be unanimous,” id. , at
288. In Andres v. United States , 333 U.S.
740 (1948), the Court repeated that “[u]nanimity in jury
verdicts is required” by the Sixth Amendment, id. , at 748.
And in Apodaca v. Oregon , 406
U.S. 404 (1972), five Justices agreed that “the Sixth
Amendment’s guarantee of trial by jury embraces a guarantee that
the verdict of the jury must be unanimous,” id., at 414
(Stewart, J., joined by Brennan and Marshall, JJ., dissenting); see
also Johnson v. Louisiana , 406
U.S. 356 , 371 (1972) (Powell, J., concurring) (explaining views
in Apodaca and its companion case); id. , at 382–383
(Douglas, J., joined by Brennan and Marshall, JJ., dissenting)
(same). We have accepted this interpretation of the Sixth Amendment
in recent cases. See Southern Union Co. v. United
States , 567 U.S.
343 , 356 (2012); Blakely v. Washington , 542 U.S.
296 , 301 (2004); Apprendi v. New Jersey , 530 U.S.
466 , 477 (2000).

															B

															The question then becomes whether these
decisions are entitled to stare decisis effect. As I have
previously explained, “the Court’s typical formulation of the stare decisis standard does not comport with our judicial
duty under Article III because it elevates demonstrably erroneous
decisions—meaning decisions outside the realm of permissible
interpretation—over the text of the Constitution and other duly
enacted federal law.” Gamble v. United States , 587
U. S. ___, ___ (2019) (concurring opinion) (slip op., at 2).
There is considerable evidence that the phrase “trial
. . . by . . . jury” in the Sixth Amendment was
understood since the founding to require that a felony guilty
verdict be unanimous. Because our precedents are thus not outside
the realm of permissible interpretation, I will apply them.

															1

															Blackstone—“the preeminent authority on
English law for the founding generation,” Alden v. Maine , 527 U.S.
706 , 715 (1999)—wrote that no subject can “be affected either
in his property, his liberty, or his person, but by the unanimous
consent” of a jury, 3 W. Blackstone, Commentaries on the Laws of
England 379 (1772); see also 4 id. , at 343. Another
influential treatise author, Hale, wrote that “the law of England
hath afforded the best method of trial, that is possible,
. . . namely by a jury . . . all concurring in
the same judgment.” 1 M. Hale, Pleas of the Crown 33 (1736)
(emphasis deleted). Such views continued in scholarly works
throughout the early Republic. See, e.g., 2 J. Story,
Commentaries on the Constitution of the United States §777,
p. 248 (1833); 6 N. Dane, Digest of American Law, ch. LXXXII,
Art. 2, §1, p. 226 (1824); 2 J. Wilson, Works of the Honourable
James Wilson 349–350 (1804).

															The uniform practice among the States was in
accord. Despite isolated 17th-century colonial practices allowing
nonunanimous juries, “unanimity became the accepted rule during the
18th century, as Americans became more familiar with the details of
English common law and adopted those details in their own colonial
legal systems.” Apodaca , supra , at 408, n. 3
(plurality opinion). In the founding era, six States explicitly
mentioned unanimity in their constitutions. See Del. Declaration of
Rights §14 (1776); Md. Declaration of Rights, Art. XIX (1776);
N. C. Declaration of Rights §IX (1776); Pa. Declaration of
Rights, Art. IX (1776); Vt. Const., Art. XI (1786); Va.
Declaration of Rights §8 (1776). Four more States clearly referred
to the common-law jury right, which included unanimity. Ky. Const.,
Art. XII, §6 (1792); N. J. Const., Art. XXII (1776); N. Y.
Const., Art. XLI (1777); S. C. Const., Art. IX, §6
(1790). Some States did not explicitly refer to either the common
law or unanimity. See, e.g., Ga. Const., Art. LXI (1777);
Mass. Declaration of Rights, Art. XII (1780). But there is reason
to believe that they nevertheless understood unanimity to be
required. See, e.g., Rouse v. State, 4 Ga.
136, 147 (1848).

															In light of the express language used in some
State Constitutions, respondent Louisiana argues that the omission
of an express unanimity requirement in the Sixth Amendment reflects
a deliberate choice. This argument fails to establish that the
Court’s decisions are demonstrably erroneous. The House of
Representatives passed a version of the amendment providing that
“[t]he trial of all crimes . . . shall be by an impartial
jury of freeholders of the vicinage, with the requisite of
unanimity for conviction, of the right of challenge, and other
accustomed requisites,” 1 Annals of Cong. 435 (1789), but the final
Amendment contained no reference to vicinage or unanimity. See
Amdt. 6. I agree with Justice Harlan and the Court that “the
meaning of this change is wholly speculative” and that there is “no
concrete evidence” that the Senate rejected the requirement of
unanimity. Baldwin v. New York , 399 U.S.
66 , 123, n. 9 (1970) (Harlan, J., dissenting); see also ante , at 11–12; Letter from J. Madison to E. Pendleton
(Sept. 14, 1789), in 1 Letters and Other Writings of James Madison
491 (1867). There is thus sufficient evidence to support this
Court’s prior interpretation that the Sixth Amendment right to a
trial by jury requires unanimity.

															2

															There is also considerable evidence that this
understanding persisted up to the time of the Fourteenth
Amendment’s ratification. State courts, for example, continued to
interpret the phrase “trial by jury” to require unanimity in felony
guilty verdicts. The New Hampshire Superior Court of Judicature
expounded on the point:

															“The terms ‘jury,’ and ‘trial by jury,’ are,
and for ages have been well known in the language of the law. They
were used at the adoption of the constitution, and always, it is
believed, before that time, and almost always since, in a single
sense.

															“A jury for the trial of a cause
. . . must return their unanimous verdict upon the issue
submitted to them.

															“All the books of the law describe a trial jury
substantially as we have stated it. And a ‘trial by jury’ is a
trial by such a body, so constituted and conducted. So far as our
knowledge extends, these expressions were used at the adoption of
the constitution and always before, in these senses alone by all
classes of writers and speakers.” Opinion of Justices , 41
N. H. 550, 551–552 (1860).

															Other state courts held the same view. The
Missouri Supreme Court in 1860 called unanimity one of the
“essential requisites in a jury trial,” Vaughn v. Scade , 30 Mo. 600, 603, and the Ohio Supreme Court in 1853
called it one of “the essential and distinguishing features of the
trial by jury, as known at common law, and generally, if not
universally, adopted in this country,” Work v. State ,
2 Ohio St. 296, 306.

															Treatises from the Reconstruction era likewise
adopted this position. A leading work on criminal procedure
explained that if a “statute authorizes [a jury] to find a verdict
upon anything short of . . . unanimous consent,” it “is
void.” 1 J. Bishop, Criminal Procedure §761, p. 532 (1866). A
widely read treatise on constitutional law reiterated that
“ ‘by a jury’ is generally understood to mean” a body that
“must unanimously concur in the guilt of the accused before
a conviction can be had.” G. Paschal, The Constitution of the
United States 210 (1876) (capitalization omitted). And a volume on
the jury trial was in agreement. See J. Proffatt, Trial by Jury
§77, p. 112 (1877).

															*  *  *

															Based on this evidence, the Court’s prior
interpretation of the Sixth Amendment’s guarantee is not
demonstrably erroneous. It is within the realm of permissible
interpretations to say that “trial . . . by
. . . jury” in that Amendment includes a protection
against nonunanimous felony guilty verdicts.

															II

															The remaining question is whether that right
is protected against the States. In my view, the Privileges or
Immunities Clause provides this protection. I do not adhere to this
Court’s decisions applying due process incorporation, including Apodaca and—it seems—the Court’s opinion in this case.

															The Privileges or Immunities Clause provides
that “[n]o State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States.”
Amdt. 14, §1. At the time of the Fourteenth Amendment’s
ratification, “the terms ‘privileges’ and ‘immunities’ had an
established meaning as synonyms of ‘rights.’ ” McDonald v. Chicago , 561 U.S.
742 , 813 (2010) (Thomas, J., concurring in part and concurring
in judgment). “[T]he ratifying public understood the Privileges or
Immunities Clause to protect constitutionally enumerated rights”
against abridgment by the States. Id. , at 837. The Sixth
Amendment right to a trial by jury is certainly a constitutionally
enumerated right. See Maxwell v. Dow , 176 U.S.
581 , 606–608 (1900) (Harlan, J., dissenting).

															The Court, however, has made the Due Process
Clause serve the function that the Privileges or Immunities Clause
should serve. Although the Privileges or Immunities Clause grants
“United States citizens a certain collection of rights— i.e. ,
privileges or immunities—attributable to that status,” the Court
has interpreted the Clause “quite narrowly.” McDonald , 561
U. S., at 808 (opinion of Thomas, J.). Perhaps to compensate
for this limited view of the Privileges or Immunities Clause, it
has incorporated individual rights against the States through the
Due Process Clause. Id. , at 809.

															Due process incorporation is a demonstrably
erroneous interpretation of the Fourteenth Amendment. As I have
explained before, “[t]he notion that a constitutional provision
that guarantees only ‘process’ before a person is deprived of life,
liberty, or property could define the substance of those rights
strains credulity for even the most casual user of words.” Id. , at 811. The unreasonableness of this interpretation is
underscored by the Court’s struggle to find a “guiding principle to
distinguish ‘fundamental’ rights that warrant protection from
nonfundamental rights that do not,” ibid. , as well as its
many incorrect decisions based on this theory, see Obergefell v. Hodges , 576 U.S. 644 (2015); Roe v. Wade , 410 U.S.
113 (1973); Dred Scott v. Sandford , 19 How. 393
(1857).

															I “decline to apply the legal fiction” of due
process incorporation. Timbs v. Indiana , 586
U. S. ___, ___ (2019) (Thomas, J., concurring in judgment)
(slip op., at 3) (internal quotation marks omitted). As a result, I
part ways with the Court on both its affirmative argument about the
Fourteenth Amendment and its treatment of Apodaca , in which
five Justices agreed the Sixth Amendment included a right to
unanimity but a different majority concluded that the right did not
apply to the States. See ante , at 7–11.

															I would accept petitioner’s invitation to decide
this case under the Privileges or Immunities Clause. The Court
conspicuously avoids saying which clause it analyzes. See, e.g.,
ante, at 3, 7. But one assumes from its silence that the Court
is either following our due process incorporation precedents or
believes that “nothing in this case turns on” which clause applies, Timbs , supra , at ___ (Gorsuch, J., concurring) (slip
op., at 1).

															I have already rejected our due process
incorporation cases as demonstrably erroneous, and I fundamentally
disagree with applying that theory of incorporation simply because
it reaches the same result in the case before us. Close enough is
for horseshoes and hand grenades, not constitutional
interpretation. The textual difference between protecting
“citizens” (in the Privileges or Immunities Clause) and “person[s]”
(in the Due Process Clause) will surely be relevant in another
case. And our judicial duty—not to mention the candor we owe to our
fellow citizens—requires us to put an end to this Court’s due
process prestidigitation, which no one is willing to defend on the
merits.

															I would simply hold that, because all of the
opinions in Apodaca addressed the Due Process Clause, its
Fourteenth Amendment ruling does not bind us because the proper
question here is the scope of the Privileges or Immunities Clause.
I cannot understand why the Court, having decided to abandon Apodaca , refuses to correctly root its holding in the
Privileges or Immunities Clause.[ 1 ]

															III

															There is no need to prove the original meaning
of the

															Sixth Amendment right to a trial by jury in
this case.[ 2 ] The evidence that
I have recounted is enough to establish that our previous
interpretations of the Sixth Amendment are not demonstrably
erroneous. What is necessary, however, is a clear understanding of
the means by which the Sixth Amendment right applies against the
States. We should rely on the Privileges or Immunities Clause, not
the Due Process Clause or the Fourteenth Amendment in some vague
sense. Accordingly, I concur only in the judgment. Notes 1 I also note that, under
my approach to stare decisis , there is no need to decide
which reliance interests are important enough to save an incorrect
precedent. I doubt that this question is susceptible of principled
resolution in this case, compare ante, at 22–26 (principal
opinion), with ante, at 3 (Sotomayor, J., concurring); ante, at 15–17 (Kavanaugh, J., concurring); and post ,
at 19–26 (Alito, J., dissenting), or in any other case for that
matter, see, e.g., Kimble v. Marvel Entertainment,
LLC , 576 U.S. 446, 457–458 (2015); Lawrence v. Texas , 539 U.S.
558 , 577 (2003); Dickerson v. United States , 530 U.S.
428 , 443 (2000); Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S.
833 , 855–856 (1992). 2 Similarly, I express no
view on how fundamental the right to unanimity is, what other
attributes of a criminal jury are protected by the Privileges or
Immunities Clause, what rights are protected in misdemeanor cases,
or what rights are protected in civil trials. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–5924

															_________________

															EVANGELISTO RAMOS, PETITIONER v. LOUISIANA

															on writ of certiorari to the court of appeal
of louisiana, fourth circuit

															[April 20, 2020]

															Justice Alito, with whom The Chief Justice
joins, and with whom Justice Kagan joins as to all but Part III–D,
dissenting.

															The doctrine of stare decisis gets rough
treatment in today’s decision. Lowering the bar for overruling our
precedents, a badly fractured majority casts aside an important and
long-established decision with little regard for the enormous
reliance the decision has engendered. If the majority’s approach is
not just a way to dispose of this one case, the decision marks an
important turn.

															Nearly a half century ago in Apodaca v. Oregon , 406 U.S.
404 (1972), the Court held that the Sixth Amendment permits
non-unanimous verdicts in state criminal trials, and in all the
years since then, no Justice has even hinted that Apodaca should be reconsidered. Understandably thinking that Apodaca was good law, the state courts in Louisiana and Oregon have tried
thousands of cases under rules that permit such verdicts. But
today, the Court does away with Apodaca and, in so doing,
imposes a potentially crushing burden on the courts and criminal
justice systems of those States. The Court, however, brushes aside
these consequences and even suggests that the States should have
known better than to count on our decision.

															To add insult to injury, the Court tars
Louisiana and Oregon with the charge of racism for permitting non-
unanimous verdicts—even though this Court found such verdicts to be
constitutional and even though there are entirely legitimate
arguments for allowing them.

															I would not overrule Apodaca . Whatever
one may think about the correctness of the decision, it has
elicited enormous and entirely reasonable reliance. And before this
Court decided to intervene, the decision appeared to have little
practical importance going forward. Louisiana has now abolished
non-unanimous verdicts, and Oregon seemed on the verge of doing the
same until the Court intervened.[ 1 ]

															In Part II of this opinion, I will address the
surprising argument, advanced by three Justices in the majority,
that Apodaca was never a precedent at all, and in Part III,
I will explain why stare decisis supports retention of that
precedent. But before reaching those issues, I must say something
about the rhetoric with which the majority has seen fit to begin
its opinion.

															I

															Too much public discourse today is sullied by ad hominem rhetoric, that is, attempts to discredit an
argument not by proving that it is unsound but by attacking the
character or motives of the argument’s proponents. The majority
regrettably succumbs to this trend. At the start of its opinion,
the majority asks this rhetorical question: “Why do Louisiana and
Oregon allow nonunanimous convictions?” Ante , at 1. And the
answer it suggests? Racism, white supremacy, the Ku Klux Klan. Ante , at 1–2. Non-unanimous verdicts, the Court implies, are
of a piece with Jim Crow laws, the poll tax, and other devices once
used to disfranchise African-Americans. Ibid .

															If Louisiana and Oregon originally adopted their
laws allowing non-unanimous verdicts for these reasons,[ 2 ] that is deplorable, but what does
that have to do with the broad constitutional question before us?
The answer is: nothing.

															For one thing, whatever the reasons why
Louisiana and Oregon originally adopted their rules many years ago,
both States readopted their rules under different circumstances in
later years. Louisiana’s constitutional convention of 1974 adopted
a new, narrower rule, and its stated purpose was “judicial
efficiency.” State v. Hankton , 2012–0375, p. 19
(La. App. 4 Cir. 8/2/13), 122 So. 3d 1028, 1038. “In that debate no
mention was made of race.” Ibid. ; 7 Records of the Louisiana
Constitutional Convention of 1973: Convention Transcripts 1184–1189
(La. Constitutional Convention Records Comm’n 1977). The people of
Louisiana ratified the new Constitution. The majority makes no
effort to show either that the delegates to the constitutional
convention retained the rule for discriminatory purposes or that
proponents of the new Constitution made racial appeals when
approval was submitted to the people. The same is true for Oregon’s
revisions and reenactments. Ore. Const., Art. I, §11 (amended May
18, 1934); Ore. Rev. Stat. §136.450 (1997); §136.610 (1971).

															The more important point, however, is that
today’s decision is not limited to anything particular about
Louisiana or Oregon. The Court holds that the Sixth Amendment
requires jury unanimity in all state criminal trials. If at
some future time another State wanted to allow non-unanimous
verdicts, today’s decision would rule that out—even if all that
State’s lawmakers were angels.

															For this reason, the origins of the Louisiana
and Oregon rules have no bearing on the broad constitutional
question that the Court decides. That history would be relevant if
there were no legitimate reasons why anyone might think that
allowing non-unanimous verdicts is good policy. But that is
undeniably false.[ 3 ]

															Some years ago the British Parliament enacted a
law allowing non-unanimous verdicts.[ 4 ] Was Parliament under the sway of the Klan? The
Constitution of Puerto Rico permits non-unanimous
verdicts.[ 5 ] Were the framers
of that Constitution racists? Non-unanimous verdicts were once
advocated by the American Law Institute and the American Bar
Association.[ 6 ] Was their aim
to promote white supremacy? And how about the prominent scholars
who have taken the same position?[ 7 ] Racists all? Of course not. So all the talk about the
Klan, etc., is entirely out of place.[ 8 ] We should set an example of rational and civil
discourse instead of contributing to the worst current trends.

															II

															Now to what matters.

															A

															I begin with the question whether Apodaca was a precedent at all. It is remarkable that it is
even necessary to address this question, but in Part IV–A of the
principal opinion, three Justices take the position that Apodaca was never a precedent. The only truly fitting
response to this argument is: “Really?”

															Consider what it would mean if Apodaca was never a precedent. It would mean that the entire legal
profession was fooled for the past 48 years. Believing that Apodaca was a precedent, the courts of Louisiana and Oregon
tried thousands of cases under rules allowing conviction by a vote
of 11 to 1 or 10 to 2, and appellate courts in those States upheld
these convictions based on Apodaca .[ 9 ] But according to three Justices in the majority,
these courts were deluded.

															This Court, for its part, apparently helped to
perpetuate the illusion, since it reiterated time and again what Apodaca had established. See Timbs v. Indiana ,
586 U. S. ___, ___, n. 1 (2019) (slip op., at 3,
n. 1) ( Apodaca held “that the Sixth Amendment requires
jury unanimity in federal, but not state, criminal proceedings”); McDonald v. Chicago , 561
U.S. 742 , 766, n. 14 (2010) ( Sixth Amendment “does not
require a unanimous jury verdict in state criminal trials”); United States v. Gaudin , 515 U.S.
506 , 511, n. 2 (1995) ( Apodaca “conclude[d] that jury
unanimity is not constitutionally required”); Schad v. Arizona, 501 U.S.
624 , 634, n. 5 (1991) (plurality opinion) (“[A] state
criminal defendant, at least in noncapital cases, has no federal
right to a unanimous jury verdict”); Brown v. Louisiana , 447 U.S.
323 , 330–331 (1980) (plurality opinion) (“[T]he constitutional
guarantee of trial by jury” does not prescribe “the exact
proportion of the jury that must concur in the verdict”); Burch v. Louisiana , 441 U.S.
130 , 136 (1979) ( Apodaca “conclude[d] that a jury’s
verdict need not be unanimous to satisfy constitutional
requirements”); Ludwig v. Massachusetts , 427 U.S.
618 , 625 (1976) (“holding” in Apodaca was that “the
jury’s verdict need not be unanimous”); see also Holland v. Illinois , 493 U.S.
474 , 511 (1990) (Stevens, J., dissenting) (“we have permitted
nonunanimous verdicts,” citing Apodaca ); McKoy v. North Carolina , 494 U.S.
433 , 468 (1990) (Scalia, J., dissenting) (the Court has
“approved verdicts by less than a unanimous jury,” citing Apodaca ).

															Consistent with these statements of the
governing law, whenever defendants convicted by non-unanimous
verdicts sought review in this Court and asked that Apodaca be overruled, the Court denied those requests—without a single
registered dissent.[ 10 ] Even
the legal academy, never shy about puncturing misconceptions, was
taken in.[ 11 ] Everybody
thought Apodaca was a precedent. But, according to three of
the Justices in the majority, everybody was fooled. Apodaca ,
the precedent, was a mirage. Can this be true?

															No, it cannot. The idea that Apodaca was
a phantom precedent defies belief. And it certainly disserves
important objectives that stare decisis exists to promote,
including evenhandedness, predictability, and the protection of
legitimate reliance. See, e . g ., Gamble v .
United States , 587 U. S. ___, ___ (2019); Kimble v . Marvel Entertainment, LLC , 576 U.S. 446, 455–456 (2015); Payne v . Tennessee , 501 U.S.
808 , 827 (1991).

															B

															Under any reasonable understanding of the
concept, Apodaca was a precedent, that is, “a decided case
that furnishes a basis for determining later cases involving
similar facts or issues.” Black’s Law Dictionary 1366 (10th ed.
2014); see also J. Salmond, Jurisprudence 191 (10th ed. 1947); M.
Gerhardt, The Power of Precedent 3 (2008); Landes & Posner,
Legal Precedent: A Theoretical and Empirical Analysis, 19
J. Law & Econ. 249, 250 (1976).

															Even though there was no opinion of the Court,
the decision satisfies even the narrowest understanding of a
precedent as this Court has understood the concept: The decision
prescribes a particular outcome when all the conditions in a
clearly defined set are met. See Seminole Tribe of Fla. v. Florida , 517 U.S.
44 , 67 (1996) (explaining that, at the very least, we are bound
by the “result” in a prior case). In Apodaca, this means
that when (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. A majority of the Justices in Apodaca expressly agreed on that result, and that result is
a precedent that had to be followed in subsequent cases until Apodaca was overruled.

															That this result constituted a precedent follows a fortiori from our cases holding that even our summary
affirmances of lower court decisions are precedents for “the
precise issues presented and necessarily decided” by the judgment
below. Mandel v . Bradley , 432
U.S. 173 , 176 (1977) ( per curiam ). If the Apodaca Court had summarily affirmed a state-court decision holding that a
jury vote of 10 to 2 did not violate the Sixth Amendment, that
summary disposition would be a precedent. Accordingly, it is
impossible to see how a full-blown decision of this Court reaching
the same result can be regarded as a non-precedent.[ 12 ]

															C

															What do our three colleagues say in response?
They begin by suggesting that Louisiana conceded that Apodaca is not a precedent. See ante, at 16–17. This
interpretation of the State’s position is questionable,[ 13 ] but even if Louisiana made that
concession, how could that settle the matter? What about Oregon,
the only State that still permits non-unanimous verdicts? Oregon
certainly did not make such a concession. On the contrary, it
submitted an amicus brief arguing strenuously that Apodaca is a precedent and that it should be retained. Brief
for State of Oregon as Amicus Curiae 6–32. And what about
any other State that might want to allow such verdicts in the
future? So the majority’s reliance on Louisiana’s purported
concession simply will not do.

															Our three colleagues’ next try is to argue that Apodaca is not binding because a case has no ratio
decidendi when a majority does not agree on the reason for the
result. Ante , at 19, and n. 54. This argument, made in
passing, constitutes an attack on the rule that the Court adopted
in Marks v. United States, 430
U.S. 188 (1977), for determining the holding of a decision when
there is no majority opinion. Under the Marks rule, “[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.” Id. , at 193 (internal quotation marks omitted). This rule
ascribes precedential status to decisions made without majority
agreement on the underlying rationale, and it is therefore squarely
contrary to the argument of the three Justices who regard Apodaca as non-precedential.

															The Marks rule is controversial, and two
Terms ago, we granted review in a case that implicated its meaning.
See Hughes v. United States, 584 U. S. ___
(2018). But we ultimately decided the case on another ground and
left the Marks rule intact. As long as that rule stands, it
refutes the argument that Apodaca is not binding because a
majority did not agree on a common rationale.

															Finally, our three colleagues contend that
treating Apodaca as a precedent would require the Court “to
embrace a new and dubious proposition: that a single Justice
writing only for himself has the authority to bind this Court to
propositions it has already rejected.” Ante , at 16. This
argument appears to weave together three separate questions
relating to the precedential effect of decisions in which there is
no majority opinion. I will therefore attempt to untangle these
questions and address each in turn.

															An initial question is whether, in a case where
there is no opinion of the Court, the position taken by a single
Justice in the majority can constitute the binding rule for which
the decision stands. Under Marks , the clear answer to this
question is yes. The logic of Marks applies equally no
matter what the division of the Justices in the majority, and I am
aware of no case holding that the Marks rule is inapplicable
when the narrowest ground is supported by only one Justice.
Certainly the lower courts have understood Marks to apply in
that situation.[ 14 ]

															The next question is whether the Marks rule applies any differently when the precedent that would be
established by a fractured decision would overrule a prior
precedent. Again, the logic of Marks dictates an affirmative
answer, and I am aware of no case holding that the Marks rule applies any differently in this situation. But as far as the
present case is concerned, this question is academic because Apodaca did not overrule any prior decision of this Court.
At most, what the Court had “recognized,” ante, at 6, in
prior cases is that the Sixth Amendment guaranteed the right to a
unanimous jury verdict in trials in federal and territorial
courts .[ 15 ] Whether the
same rule applied in state prosecutions had not been decided, and
indeed, until Duncan v. Louisiana , 391 U.S.
145 , 154–158 (1968), was handed down just four years before Apodaca , the Sixth Amendment had not been held to apply to
the States.

															The final question is whether Justice Powell’s
reasoning in Apodaca —namely, his view that the Fourteenth
Amendment did not incorporate every aspect of the Sixth Amendment
jury-trial right—is a binding precedent, and the answer to that
question is no. When, in the years after Apodaca , new
questions arose about the scope of the jury-trial right in state
court—as they did in cases like Apprendi v. New
Jersey , 530 U.S.
466 (2000), and Blakely v. Washington , 542 U.S.
296 (2004)—nobody thought for a second that Apodaca committed the Court to Justice Powell’s view that the right has
different dimensions in state and federal cases. And no one on this
Court or on a lower court had any trouble locating the narrow
common ground between Justice Powell and the plurality in Apodaca : The States need not require unanimity to comply
with the Constitution.

															For all these reasons, Apodaca clearly
was a precedent, and if the Court wishes to be done with it, it
must explain why overruling Apodaca is consistent with the
doctrine of stare decisis .

															III

															A Stare decisis has been a fundamental
part of our jurisprudence since the founding, and it is an
important doctrine. But, as we have said many times, it is not an
“inexorable command.” Payne , 501 U. S., at 828; Gamble , 587 U. S., at ___–___ (slip op., at 11–12).
There are circumstances when past decisions must be overturned, but
we begin with the presumption that we will follow precedent, and
therefore when the Court decides to overrule, it has an obligation
to provide an explanation for its decision.

															This is imperative because the Court should have
a body of neutral principles on the question of overruling
precedent. The doctrine should not be transformed into a tool that
favors particular outcomes.[ 16 ]

															B

															What is the majority’s justification for
overruling Apodaca ? With no apparent appreciation of the
irony, today’s majority, which is divided into four separate
camps,[ 17 ] criticizes the Apodaca majority as “badly fractured.” Ante , at 8.
But many important decisions currently regarded as precedents were
decided without an opinion of the Court.[ 18 ] Does the majority mean to suggest that all such
precedents are fair game?

															The majority’s primary reason for overruling Apodaca is the supposedly poor “quality” of Justice White’s
plurality opinion and Justice Powell’s separate opinion. Ante , at 19–21. The majority indicts Justice White’s opinion
on five grounds: (1) it “spent almost no time grappling with the
historical meaning of the Sixth Amendment’s jury trial
right,”[ 19 ] (2) it did not
give due weight to the “Court’s long-repeated statements that [the
right] demands unanimity,”[ 20 ] (3) it did not take into account “the racist origins
of [the] Louisian[a] and Orego[n] laws,”[ 21 ] (4) it looked to the function of the jury-trial
right,[ 22 ] and (5) it
engaged in “a breezy cost-benefit analysis” that, in any event, did
not properly weigh the costs and benefits.[ 23 ] All these charges are overblown.

															First, it is quite unfair to criticize Justice
White for not engaging in a detailed discussion of the original
meaning of the Sixth Amendment jury-trial right since he had
already done that just two years before in his opinion for the
Court in Williams v. Florida , 399 U.S.
78 , 92–100 (1970). In Williams , after examining that
history, he concluded that the Sixth Amendment did not incorporate
every feature of the common-law right (a conclusion that the
majority, by the way, does not dispute). And in Apodaca , he
built on the analysis in Williams. Accordingly, there was no
need to repeat what had been said before.

															Second, it is similarly unfair to criticize
Justice White for not discussing the prior decisions that commented
on jury unanimity. None of those decisions went beyond saying that
this was a feature of the common-law right or cursorily stating
that unanimity was required.[ 24 ] And as noted, Williams had already held that
the Sixth Amendment did not preserve all aspects of the common-law
right.

															Third, the failure of Justice White (and Justice
Powell) to take into account the supposedly racist origins of the
Louisiana and Oregon laws should not be counted as a defect for the
reasons already discussed. See supra, at 4–5.

															Fourth, it is hard to know what to make of the
functionalist charge. One Member of the majority explicitly
disavows this criticism, see ante , at 2 (Sotomayor, J.,
concurring in part), and it is most unlikely that all the Justices
in the majority are ready to label all functionalist decisions as
poorly reasoned. Most of the landmark criminal procedure decisions
from roughly Apodaca ’s time fall into that category. See Mapp v. Ohio , 367 U.S.
643 , 654 (1961) ( Fourth Amendment); Miranda v. Arizona , 384
U.S. 436 , 444 (1966) ( Fifth Amendment); Gideon v. Wainwright , 372 U.S.
335 , 344–345 (1963) ( Sixth Amendment); Furman v. Georgia , 408 U.S.
238 , 239 (1972) ( per curiam ) ( Eighth
Amendment).[ 25 ] Are they all
now up for grabs?

															The functionalist criticism dodges the knotty
problem that led Justice White to look to the underlying purpose of
the jury-trial right. Here is the problem. No one questions that
the Sixth Amendment incorporated the core of the common-law
jury-trial right, but did it incorporate every feature of
the right? Did it constitutionalize the requirement that there be
12 jurors even though nobody can say why 12 is the magic number?
And did it incorporate features that we now find highly
objectionable, such as the exclusion of women from jury service? At
the time of the adoption of the Sixth Amendment (and for many years
thereafter), women were not regarded as fit to serve as a
defendant’s peers. Unless one is willing to freeze in place late
18th-century practice, it is necessary to find a principle to
distinguish between the features that were incorporated and those
that were not. To do this, Justice White’s opinion for the Court in Williams looked to the underlying purpose of the jury-trial
right, which it identified as interposing a jury of the defendant’s
peers to protect against oppression by a “ ‘corrupt or
overzealous prosecutor’ ” or a “ ‘compliant, biased, or
eccentric judge.’ ” 399 U. S., at 100 (quoting Duncan , 391 U. S., at 156).

															The majority decries this “functionalist”
approach but provides no alternative. It does not claim that the
Sixth Amendment incorporated every feature of common-law practice,
but it fails to identify any principle for identifying the features
that were absorbed. On the question of jury service by women, the
majority’s only answer, buried in a footnote, is that the exclusion
of women was outlawed by “further constitutional amendments,” ante , at 15, n. 47, presumably the Fourteenth Amendment.
Does that mean that the majority disagrees with the holding in Taylor v. Louisiana , 419 U.S.
522 (1975)—another opinion by Justice White—that the exclusion
of women from jury service violates the Sixth Amendment ? Id. , at 531, 533–536.[ 26 ]

															Fifth, it is not accurate to say that Justice
White based his conclusion on a cost-benefit analysis of requiring
jury unanimity. His point, rather, was that what the Court had
already identified as the fundamental purpose of the jury-trial
right was not undermined by allowing a verdict of 11 to 1 or 10 to
2.

															I cannot say that I would have agreed either
with Justice White’s analysis or his bottom line in Apodaca if I had sat on the Court at that time, but the majority’s harsh
criticism of his opinion is unwarranted.

															What about Justice Powell’s concurrence? The
majority treats Justice Powell’s view as idiosyncratic, but it does
not merit that derision. Justice Powell’s belief that the
Constitution allows the States a degree of flexibility in the
interpretation of certain constitutional rights, although not our
dominant approach in recent years, McDonald , 561 U. S.,
at 759–766, has old and respectable roots. For a long time, that
was the Court’s approach. See id ., at 759–761. Only
gradually did the Court abandon this “two-tier” system, see id. , at 762–767, and it was not until Duncan , supra, at 154–158, decided just four years before Apodaca , that the Sixth Amendment jury-trial right was held
to apply to the States at all. Justice Powell’s approach is also
not without recent proponents, including, at least with respect to
the Second Amendment, Justices now in the majority.[ 27 ]

															Even now, our cases do not hold that every provision of the Bill of Rights applies in the same
way to the Federal Government and the States. A notable exception
is the Grand Jury Clause of the Fifth Amendment, a provision that,
like the Sixth Amendment jury-trial right, reflects the importance
that the founding generation attached to juries as safeguards
against oppression. In Hurtado v. California , 110 U.S.
516 , 538 (1884), the Court held that the Grand Jury Clause does
not bind the States and that they may substitute preliminary
hearings at which the decision to allow a prosecution to go forward
is made by a judge rather than a defendant’s peers. That decision
was based on reasoning that is not easy to distinguish from Justice
Powell’s in Apodaca. Hurtado remains good law and is
critically important to the 28 States that allow a defendant to be
prosecuted for a felony without a grand jury indictment.[ 28 ] If we took the same approach to
the Hurtado question that the majority takes in this case,
the holding in that case could be called into question.

															The majority’s only other reason for overruling Apodaca is that it is inconsistent with related decisions
and recent legal developments. Ante , at 21; ante , at
2 (Sotomayor, J., concurring in part). I agree that Justice
Powell’s view on incorporation is not in harmony with the bulk of
our case law, but the majority’s point about “recent legal
developments” is an exaggeration. No subsequent Sixth Amendment
decision has undercut the plurality. And while Justice Powell’s
view on incorporation has been further isolated by later cases
holding that two additional provisions of the Bill of Rights apply
with full force to the States, see Timbs , 586 U. S., at
___ (slip op., at 2) ( Eighth Amendment’s Excessive Fines Clause); McDonald , supra, at 791 (plurality opinion) ( Second
Amendment), the project of complete incorporation was nearly done
when Apodaca was handed down. See McDonald , supra , at 765, n. 13.

															While the majority worries that Apodaca is inconsistent with our cases on incorporation, the majority
ignores something far more important: the way in which Apodaca is intertwined with the body of our Sixth Amendment
case law. As I have explained, see supra , at 15, the Apodaca plurality’s reasoning was based on the same
fundamental mode of analysis as that in Williams , 399 U.S.
78 , which had held just two years earlier that the Sixth
Amendment did not constitutionalize the common law’s requirement
that a jury have 12 members. Although only one State, Oregon, now
permits non-unanimous verdicts, many more allow six- person
juries.[ 29 ] Repudiating the
reasoning of Apodaca will almost certainly prompt calls to
overrule Williams. C

															Up to this point, I have discussed the
majority’s reasons for overruling Apodaca, but that is only
half the picture. What convinces me that Apodaca should be
retained are the enormous reliance interests of Louisiana and
Oregon. For 48 years, Louisiana and Oregon, trusting that Apodaca is good law, have conducted thousands and thousands
of trials under rules allowing non-unanimous verdicts. Now, those
States face a potential tsunami of litigation on the jury-
unanimity issue.

															At a minimum, all defendants whose cases are
still on direct appeal will presumably be entitled to a new trial
if they were convicted by a less-than-unanimous verdict and
preserved the issue in the trial court. And at least in Oregon,
even if no objection was voiced at trial, defendants may be able to
challenge their convictions based on plain error. See Ore. Rule
App. Proc. 5.45(1), and n. 1 (2019); State v. Serrano , 355 Ore. 172, 179, 324 P.3d 1274, 1280 (2014).
Oregon asserts that more than a thousand defendants whose cases are
still on direct appeal may be able to challenge their convictions
if Apodaca is overruled. Brief for State of Oregon as Amicus Curiae 12–13.[ 30 ] The State also reports that “[d]efendants are arguing
that an instruction allowing for non-unanimous verdicts is a
structural error that requires reversal for all convictions,
even for those for which the jury was not polled or those for which
the jury was unanimous.” Id ., at 14.

															Unimpressed by these potential consequences, the
majority notes that we “vacated and remanded nearly 800 decisions”
for resentencing after United States v. Booker , 543 U.S.
220 (2005), held that the Federal Sentencing Guidelines are not
mandatory. Ante , at 23. But the burden of resentencing
cannot be compared with the burden of retrying cases. And while
resentencing was possible in all the cases affected by Booker , there is no guarantee that all the cases affected by
today’s ruling can be retried. In some cases, key witnesses may not
be available, and it remains to be seen whether the criminal
justice systems of Oregon and Louisiana have the resources to
handle the volume of cases in which convictions will be
reversed.

															These cases on direct review are only the
beginning. Prisoners whose direct appeals have ended will argue
that today’s decision allows them to challenge their convictions on
collateral review, and if those claims succeed, the courts of
Louisiana and Oregon are almost sure to be overwhelmed.

															The majority’s response to this possibility is
evasive. It begins by hinting that today’s decision will not apply
on collateral review under the framework adopted in Teague v. Lane , 489
U.S. 288 , 315 (1989) (plurality opinion). Under Teague ,
“an old rule applies both on direct and collateral review,” but if
today’s decision constitutes a new procedural rule, prisoners will
be able to rely on it in a collateral proceeding only if it is what
we have termed a “watershed rule” that implicates “the fundamental
fairness and accuracy of the criminal proceeding.” Whorton v. Bockting , 549 U.S.
406 , 416 (2007). Noting that we have never found a new rule of
criminal procedure to qualify as “watershed,” the Court hints that
the decision in this case is likely to meet the same fate.

															But having feinted in this direction, the Court
quickly changes course and says that the application of today’s
decision to prisoners whose appeals have ended should not concern
us. Ante , at 23–24. That question, we are told, will be
decided in a later case. Ibid .

															The majority cannot have it both ways. As long
as retroactive application on collateral review remains a real
possibility, the crushing burden that this would entail cannot be
ignored. And while it is true that this Court has been chary in
recognizing new watershed rules, it is by no means clear that Teague will preclude the application of today’s decision on
collateral review. Teague applies only to a “new rule,” and
the positions taken by some in the majority may lead to the
conclusion that the rule announced today is an old rule. Take the
proposition, adopted by three Members of the majority, that Apodaca was never a precedent. Those Justices, along with
the rest of the majority, take the position that our cases
established well before Apodaca both that the Sixth
Amendment requires unanimity, ante , at 6–7, and that it
applies in the same way in state and federal court, ante , at
9. Thus, if Apodaca was never a precedent and did not
disturb what had previously been established, it may be argued that
today’s decision does not impose a new rule but instead merely
recognizes what the correct rule has been for many years.

															Two other Justices in the majority acknowledge
that Apodaca was a precedent and thus would presumably
regard today’s decision as a “new rule,” but the question remains
whether today’s decision qualifies as a “watershed rule.” Justice
Kavanaugh concludes that it does not and all but decides—without
briefing or argument—that the decision will not apply retroactively
on federal collateral review and similarly that there will be no
successful claims of ineffective assistance of counsel for failing
to challenge Apodaca . See ante, at 15–17 (opinion
concurring in part).

															The remaining Justices in the majority, and
those of us in dissent, express no view on this question, but the
majority’s depiction of the unanimity requirement as a hallowed
right that Louisiana and Oregon flouted for ignominious reasons
certainly provides fuel for the argument that the rule announced
today meets the test. And in Oregon, the State most severely
impacted by today’s decision, watershed status may not matter since
the State Supreme Court has reserved decision on whether state law
gives prisoners a greater opportunity to invoke new precedents in
state collateral proceedings. See Verduzco v. State ,
357 Ore. 553, 574, 355 P.3d 902, 914 (2015).[ 31 ]

															Whatever the ultimate resolution of the
retroactivity question, the reliance here is not only massive; it
is concrete. Cf. Dickerson v. United States , 530 U.S.
428 , 443 (2000) (reliance weighed heavily in favor of precedent
simply because the warnings in Miranda v. Arizona , 384 U.S.
436 , had become “part of our national culture”). In my view, it
weighs decisively against overruling Apodaca. In reaching this conclusion, I do not disregard
the interests of petitioner and others who were convicted by a
less-than-unanimous vote. It is not accurate to imply that these
defendants would have been spared conviction if unanimity had been
required. In many cases, if a unanimous vote had been needed, the
jury would have continued to deliberate and the one or two holdouts
might well have ultimately voted to convict.[ 32 ] This is almost certainly the situation in
Oregon, where it is estimated that as many as two-thirds of all
criminal trials have ended with a non-unanimous verdict. See Brief
for State of Oregon as Amicus Curiae 12. It is
impossible to believe that all these cases would have resulted in
mistrials if unanimity had been demanded. Instead, after a vote of
11 to 1 or 10 to 2, it is likely that deliberations would have
continued and unanimity would have been achieved.

															Nevertheless, the plight of defendants convicted
by non-unanimous votes is important and cannot be overlooked, but
that alone cannot be dispositive of the stare decisis question. Otherwise, stare decisis would never apply in a
case in which a criminal defendant challenges a precedent that led
to conviction.

															D

															The reliance in this case far outstrips that
asserted in recent cases in which past precedents were overruled.
Last Term, when we overturned two past decisions, there were
strenuous dissents voicing fears about the future of stare
decisis . See Franchise Tax Bd. of Cal. v. Hyatt ,
587 U. S. ___, ___ (2019) (Breyer, J., dissenting); Knick v. Township of Scott , 588 U. S. ___, ___
(2019) (Kagan, J., dissenting). Yet in neither of those cases
was there reliance like that present here.

															In Franchise Tax Board , the dissent
claimed only the airiest sort of reliance, the public’s expectation
that past decisions would remain on the books. 587 U. S., at
___–___ (opinion of Breyer, J.) (slip op., at 12–13). And in Knick , the dissent disclaimed any reliance at all. 588
U. S., at ___ (opinion of Kagan, J.) (slip op., at 17).
The same was true the year before in South Dakota v .
Wayfair , Inc ., 585 U. S. ___ (2018), where the
dissent did not contend that any legitimate reliance interests
weighed in favor of preserving the decision that the Court
overruled. Id. , at ___–___ (opinion of Roberts, C. J.)
(slip op., at 1–2). And our unanimous decision in Pearson v . Callahan , 555 U.S.
223 , 233 (2009), found that no reliance interests were
involved.

															In other cases overruling prior decisions, the
dissents claimed that reliance interests were at stake, but
whatever one may think about the weight of those interests, no one
can argue that they are comparable to those in this case.

															In Montejo v. Louisiana , 556 U.S.
778 , 793–797 (2009), the Court abrogated a prophylactic rule
that had been adopted in Michigan v. Jackson , 475 U.S.
625 (1986), to protect a defendant’s right to counsel during
post- arraignment interrogation. The dissent did not claim that any
defendants had relied on this rule, arguing instead that the public
at large had an interest “in knowing that counsel, once secured,
may be reasonably relied upon as a medium between the accused and
the power of the State.” Montejo , supra , at 809
(opinion of Stevens, J.). This abstract interest, if it can be
called reliance in any proper sense of the term, is a far cry from
what is at stake here.

															In Citizens United v. Federal Election
Comm’n , 558 U.S.
310 (2010), where we overruled precedent allowing laws that
prohibited corporations’ election-related speech, we found that
“[n]o serious reliance interests” were implicated, id. , at
365, since the only reliance asserted by the dissent was the time
and effort put in by federal and state lawmakers in adopting the
provisions at issue, id ., at 411–412 (Stevens, J.,
concurring in part and dissenting in part). In this case, by
contrast, what is at stake is not the time and effort of Louisiana
and Oregon lawmakers but a monumental litigation burden and the
potential inability to retry cases that might well have ended with
a unanimous verdict if that had been required.

															Finally, in Janus v. State, County,
and Municipal Employees , 585 U. S. ___ (2018) , where we overruled Abood v. Detroit Bd. of Ed. , 431 U.S.
209 (1977), we carefully considered and addressed the question
of reliance, and whatever one may think about the extent of the
legitimate reliance in that case, it is not in the same league as
that present here. Abood had held that a public sector
employer may require non-union members to pay a portion of the dues
collected from union members. 431 U. S., at 235–236. In
overruling that decision, we acknowledged that existing labor
contracts might have been negotiated in reliance on Abood ,
but we noted that most labor contracts are of short duration, that
unions had been on notice for some time that the Court had serious
misgivings about Abood , and that unions could have insisted
on contractual provisions to protect their interests if Abood later fell. Janus , supra , at ___–___
(slip op., at 44–47).[ 33 ]

															By striking down a precedent upon which there
has been massive and entirely reasonable reliance, the majority
sets an important precedent about stare decisis . I assume
that those in the majority will apply the same standard in future
cases.

															*  *  *

															Under the approach to stare decisis that we have taken in recent years, Apodaca should not be
overruled. I would therefore affirm the judgment below, and I
respectfully dissent. Notes 1 See Brief for State of
Oregon as Amicus Curiae 1–2. 2 Both States resist this
suggestion. See Brief for Respondent 36–39; Brief for State of
Oregon as Amicus Curiae 6–8. 3 Among other things,
allowing non-unanimous verdicts prevents mistrials caused by a
single rogue juror, that is, a juror who refuses to pay attention
at trial, expressly defies the law, or spurns deliberation. When
unanimity is demanded, the work of preventing this must be done in
large measure by more intensive voir dire and more
aggressive use of challenges for cause and peremptory challenges.
See Amar, Reinventing Juries: Ten Suggested Reforms, 28 U. C. D. L.
Rev. 1169, 1189–1191 (1995). 4 Juries Act 1974, ch. 23,
§17 (replacing Criminal Justice Act 1967, ch. 80, §13). See
Lloyd-Bostock & Thomas, Decline of the “Little Parliament”:
Juries and Jury Reform in England and Wales, 62 Law & Contemp.
Prob. 7, 36 (Spring 1999); see also Leib, A Comparison of Criminal
Jury Decision Rules in Democratic Countries, 5 Ohio St. J. Crim. L.
629, 642 (2008). 5 P. R. Const., Art. II, §
11 (establishing “verdict by a majority vote” of at least 9 of 12
jurors). 6 ALI, Code of Criminal
Procedure §355 (1930); id ., Comment, at 1027; ABA Project on
Standards for Criminal Justice Compilation, Trial by Jury 318
(1974). 7 See, e.g. , Amar, supra , at 1189–1191; Holland, Improving Criminal Jury
Verdicts: Learning From the Court-Martial, 97 J. Crim. L. & C.
101, 125–141 (2006); Leib, Supermajoritarianism and the American
Criminal Jury, 33 Hastings Const. L. Q. 141, 142
(2006). 8 The majority’s defense of
its reliance on the original reasons for the adoption of the
Louisiana and Oregon rules is incoherent. On the one hand, it asks:
“[I]f the Sixth Amendment calls on judges to assess the functional
benefits of jury rules, as the Apodaca plurality suggested,
how can that analysis proceed to ignore the very functions those
rules were adopted to serve?” Ante , at 14, n. 44. But three
sentences later it answers its own question when it observes that
“a jurisdiction adopting a nonunanimous jury rule for benign
reasons today would still violate the Sixth Amendment.” Ibid . Justice Kavanaugh’s defense, see ante , at 13–15
(opinion concurring in part), is essentially the same. After
reiterating the history recounted by the majority, he eventually
acknowledges that there are “neutral and legitimate” reasons for
allowing non-unanimous verdicts and that Louisiana may have
retained a version of its old rule for such reasons. He also agrees
with the majority that a rule allowing non-unanimous verdicts would
be unconstitutional no matter what the State’s reasons. So what is
the relevance of the original motivations for the Louisiana and
Oregon rules? He offers no explanation. He does opine that allowing
such verdicts works to the disadvantage of African-American
defendants, but the effect of various jury decision rules is a
complex question that has been the subject of much social-science
research, none of which the opinion even acknowledges. 9 For Oregon, see, e.g. , State v. Bowen , 215 Ore. App. 199, 168
P.3d 1208 (2007), rev. denied, 345 Ore. 415, 197 P.3d 1104 (2008),
cert. denied, 558 U.S. 815 (2009); State v. Mayo , 13
Ore. App. 582, 511 P.2d 456 (1973). For Louisiana, see, e.g. , State v. Hodges , 349 So. 2d 250 , 260 (La. 1977), cert. denied, 434 U.S. 1074
(1978); see also State v. Miller , 2010–718, pp. 42–43
(La. App. 5 Cir. 12/28/11), 83 So. 3d 178, 204, writ denied,
2012–0282 (La. 5/18/12), 89 So. 3d 119, cert. denied, 568 U.S. 1157
(2013); State v. McElveen , 2010–0172, pp. 95–96 (La.
App. 4 Cir. 9/28/11), 73 So. 3d 1033, 1092, writ denied, 2011–2567
(La. 4/19/12), 85 So. 3d 692, cert. denied, 568 U.S. 1163
(2013). 10 See, e.g. , Magee v. Louisiana , 585 U. S. ___
(2018); Sims v. Louisiana , 584 U. S. ___ (2018); Baumberger v. Louisiana , 583 U. S. ___ (2017); Jackson v. Louisiana , 572 U.S. 1088 (2014); McElveen v. Louisiana , 568 U.S. 1163 (2013); Miller v. Louisiana , 568 U.S. 1157 (2013); Bowen v. Oregon , 558 U.S. 815 (2009); Lee v. Louisiana , 555 U.S. 823 (2008); McIntyre v. Louisiana , 449 U.S. 871 (1980); Hodges v. Louisiana , 434 U.S. 1074 (1978). On June 7, 1972, shortly
after Apodaca was handed down, the Court denied certiorari
in a number of cases asking the Court to recognize a right to
unanimity in state jury trials. Blevins v. Oregon ,
406 U.S. 972; Martinka v. Oregon , 406 U.S. 973; Andrews v. Oregon , 406 U.S. 973; Planck v. Oregon , 406 U.S. 973; Riddell v. Oregon , 406
U.S. 973; Mitchell v. Oregon , 406 U.S. 973; Atkison v. Oregon , 406 U.S. 973; Temple v. Oregon , 406 U.S. 973; Davis v. Oregon , 406
U.S. 974; O’Dell v. Oregon , 406 U.S. 974; Miller v. Oregon , 406 U.S. 974. Contrary to the
majority opinion, I am not arguing that the denial of certiorari is
precedential. See ante , at 19, n. 56. My point, instead, is
that the Court’s pattern of denying review in cases presenting the
question whether unanimity is required in state trials is evidence
that this Court regarded Apodaca as a
precedent. 11 D.
Rudstein, C. Erlinder, & D. Thomas, 3 Criminal Constitutional
Law §14.03[3] (2019); W. LaFave, J. Israel, N. King, & O. Kerr,
6 Criminal Procedure §22.1(e) (2015); W. Rich, 2 Modern
Constitutional Law §30:27 (2011). 12 It is
true, of course, that a summary affirmance has less precedential
value than a decision on the merits, see, e.g. , Comptroller of Treasury of Md. v. Wynne , 575 U.S.
542, 560–561 (2015), but we have never said the same about
decisions on the merits that were reached without an opinion of the
Court. 13 What
the State appears to have meant is that Justice Powell’s rea-soning
was not binding. See Brief for Respondent 47; Tr. of Oral Arg.
37–38. 14 See Grutter v. Bollinger , 539 U.S.
306 , 321 (2003) (discussing lower court’s treatment of Justice
Powell’s opinion in Regents of Univ. of Cal. v. Bakke , 438 U.S.
265 (1978)); Planned Parenthood of Southeastern Pa. v. Casey , 947 F.2d 682, 694–698 (CA3 1991) (noting that “[t]he
binding opinion from a splintered decision is as authoritative for
lower courts as a nine-Justice opinion,” and concluding based on
opinions of Justice O’Connor that the test for the
constitutionality of abortion regulations is undue burden),
aff ’d in part and rev’d in part, 505
U.S. 833 (1992); Blum v. Witco Chemical Corp. ,
888 F.2d 975, 981 (CA3 1989); see also United States v. Duvall , 705 F.3d 479, 483, n. 1 (CADC 2013) (Kavanaugh, J.,
for the court). 15 See, e.g. , Andres v. United States , 333 U.S.
740 , 748 (1948); Thompson v. Utah , 170 U.S.
343 , 351 (1898). 16 It is
also important that the Court as a whole adhere to its
“precedent[s] about precedent.” Alleyne v. United
States , 570 U.S.
99 , 134 (2013) (Alito, J., dissenting). If individual Justices
apply different standards for overruling past decisions, the
overall effects of the doctrine will not be neutral. 17 Three
Justices join the principal opinion in its entirety. Two Justices
do not join Part IV–A, but each of these Justices takes a position
not embraced by portions of the principal opinion that they join.
See ante , at 2 (Sotomayor, J., concurring in part)
(disavowing principal opinion’s criticism of Justice White’s Apodaca opinion as “functionalist”); ante, at 15–17
(Kavanaugh, J., concurring in part) (opining that the decision in
this case does not apply on collateral review). And Justice Thomas
would decide the case on entirely different grounds and thus
concurs only in the judgment. See ante, at 1. 18 See, e.g ., National Federation of Independent Business v. Sebelius , 567 U.S.
519 (2012); Williams v. Illinois , 567 U.S.
50 (2012); J. McIntyre Machinery, Ltd . v. Nicastro , 564 U.S.
873 (2011); McDonald v. Chicago , 561 U.S.
742 (2010); Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co ., 559 U.S.
393 (2010); Baze v. Rees , 553 U.S.
35 (2008); Crawford v. Marion County Election
Bd. , 553 U.S.
181 (2008); Hamdan v. Rumsfeld , 548 U.S.
557 (2006); Medtronic, Inc. v. Lohr , 518 U.S.
470 (1996); Richmond v. J. A. Croson Co ., 488 U.S.
469 (1989); Bakke , 438 U.S.
265 ; Gregg v. Georgia , 428
U.S. 153 (1976) (joint opinion of Stewart, Powell, and Stevens,
JJ.). 19 Ante , at 20. 20 Ante , at 21. 21 Ibid. 22 Ibid . 23 Ante , at 13. 24 See, e.g. , Andres , 333 U. S., at 748; Thompson , 170 U. S., at 351. 25 Five
Justices in Furman found that the Eighth Amendment imposes
an evolving standard of decency, 408 U. S., at 255–257
(Douglas, J., concurring); id ., at 265–269 (Brennan, J.,
concurring); id ., at 309–310 (Stewart, J., concurring); id ., at 312–314 (White, J., concurring); id. , at 316,
322–333 (Marshall, J., concurring), and our subsequent cases have
done the same. 26 The
majority also notes that the Judiciary Act of 1789 pegged the
qualifications for service on federal juries to those used in the
State in which a case was tried, ante , at 15, n. 47, but
since all States barred women, see Taylor , 419 U. S.,
at 536, it is hard to see how the 1789 Act can provide a ground for
distinguishing the common law’s requirement of unanimity from its
insistence that women were not fit to serve. Jury practice at the
time of the founding differed from current prac-tice in other
important respects. Jurors were not selected at random. “[P]ublic
officials called selectmen, supervisors, trustees, or ‘sheriffs of
the parish’ exercised what Tocqueville called ‘very extensive and
very arbitrary’ powers in summoning jurors.” Alschuler & Deiss,
A Brief History of the Criminal Jury in the United States, 61 U.
Chi. L. Rev. 867, 879–880 (1994). And “American trial judges . . .
routinely summarized the evidence for jurors and often told jurors
which witnesses they found most credible, and why.” Sklansky,
Evidentiary Instructions and the Jury as Other, 65 Stan. L. Rev.
407, 454 (2013). Any attempt to identify the aspects of late
18th-century practice that were incorporated into the Sixth
Amendment should take the full picture into account and provide a
principle for the distinction. 27 As
recently as 2010, prominent advocates urged us to hold that a
provision of the Bill of Rights applies differently to the Federal
Government and the States. In McDonald , 561 U.S.
742 , the city of Chicago and some of its amici argued
that, despite our decision in District of Columbia v. Heller , 554 U.S.
570 (2008), States and cities should be given leeway to
regulate the possession of a firearm in the home for self-defense
in accordance with the particular needs and desires of their
citizens. 561 U. S., at 753. Although this argument did not
prevail, four Justices, some now in the majority, appeared to take
that view. See id. , at 927 (Breyer, J., joined by Ginsburg
and Sotomayor, JJ., dissenting) (observing that “gun violence
. . . varies as between rural communities and cities” and
arguing that States and cities should be free to adopt rules that
meet local needs and preferences); id. , at 866 (Stevens, J.,
dissenting) (“The rights protected against state infringement by
the Fourteenth Amendment’s Due Process Clause need not be identical
in shape or scope to the rights protected against Federal
Government infringement by the various provisions of the Bill of
Rights”). 28 See
Ariz. Const., Art. 2, §30; Ark. Const., Amdt. 21, §1; Cal. Const.,
Art. I, §14; Colo. Rev. Stat. §16–5–205 (2019); Conn. Gen. Stat.
§54–46 (2017); Haw. Const., Art. I, §10; Idaho Const., Art. I, §8;
Ill. Comp. Stat., ch. 725, §5/111–2(a) (West 2018); Ind. Code
§35–34–1–1(a) (2019); Iowa Ct. Rule 2.5 (2020); Kan. Stat. Ann.
§22–3201 (2007); Md. Crim. Proc. Code Ann. §§4–102, 4–103 (2018);
Mich. Comp. Laws §767.1 (1979); Mo. Const., Art. I, §17; Mont.
Const., Art. II, §20(1); Neb. Rev. Stat. §29–1601 (2016); Nev.
Const., Art. I, §8; N. M. Const., Art II, §14; N. D. Rule
Crim. Proc. 7(a) (2018–2019); Okla. Const., Art II, §17; Ore.
Const. (amended), Art. VII, §§5(3)–(5); Pa. Const., Art. I, §10
(providing that “[e]ach of the several courts of common pleas may,
with the approval of the Supreme Court, provide for the initiation
of criminal proceedings therein by information”—a condition that
has now been met in all counties); see also 42 Pa. Cons. Stat.
§8931 (2015); S. D. Const., Art. VI, §10; Utah Const., Art. I,
§13; Vt. Rule Crim. Proc. 7(a) (2018); Wash. Rev. Code §10.37.015
(2019); Wis. Stat. §967.05 (2015–2016); Wyo. Stat. Ann. §7–1–106(a)
(2019). 29 See
Ariz. Rev. Stat. Ann. §21–102 (2013); Conn. Gen. Stat. §54–82; Fla.
Rule Crim. Proc. §3.270 (2019); Ind. Code §35–37–1–1(b)(2); Utah
Code §78B–1–104 (2019). 30 The
majority arrives at a different figure based on the number of
felony jury trials in Oregon in 2018, see ante , at 22–23,
and n. 68, but it does not take 2019 into account. And since we do
not know how many cases remain on direct appeal, such calculations
are unreliable. 31 Under
our case law, a State must give retroactive effect to any
constitutional decision that is retroactive under the standard in Teague v. Lane , 489 U.S.
288 (1989), but it may adopt a broader retroactivity rule. Montgomery v. Louisiana , 577 U. S. ___, ___
(2016); Danforth v. Minnesota , 552 U.S.
264 , 275 (2008). 32 Studies show that when a
supermajority votes for a verdict nearthe beginning of
deliberations, a unanimous verdict is usually reached. See
generally Devine, Clayton, Dunford, Seying, & Price, Jury
Decision Making: 45 Years of Empirical Research on Deliberating
Groups, 7 Psychology Pub. Pol’y & L. 622, 690–707
(2001). 33 The
reliance in this case also far exceeds that in Arizona v. Gant , 556 U.S.
332 (2009), where the Court effectively overruled a decision, New York v. Belton , 453 U.S.
454 (1981), that allowed a police officer to search the entire
passenger compartment of a car if the officer had probable cause to
arrest the driver or a passenger. 556 U. S., at 335. Police
departments had trained officers in reliance on the Belton rule, see Gant , supra , at 358–360 (Alito, J.,
dissenting), but the burden of retraining cannot compare with
conducting a large number of retrials and potentially releasing
defendants who cannot be retried due to post-trial
events.