WASHINGTON — Almost every part of the Bill of Rights applies to both the federal government and to the states, but the Supreme Court on Monday wrestled with whether to tolerate a rare exception for non-unanimous jury verdicts in criminal cases. Such verdicts are forbidden in federal trials under the Sixth Amendment but permitted in ones held in state court.
There seemed little doubt that the justices would have found the question fairly easy absent a confusing 1972 decision that said the Constitution required federal juries to render unanimous verdicts but allowed divided state juries. The vote was 4 to 1 to 4, and only Justice Lewis F. Powell Jr., who cast the controlling vote, said federal and state cases could be treated differently.
Monday’s case, Ramos v. Louisiana, No. 18-5924, concerned Evangelisto Ramos, a Louisiana man who was convicted in 2016 of killing a woman in New Orleans. The jury’s vote was 10 to 2, which was enough under the state’s law at the time. Louisiana has since amended its state Constitution to bar non-unanimous verdicts, but the move came too late to help Mr. Ramos, as it applies only to crimes committed after 2018.
Oregon is the last state that allows non-unanimous verdicts in criminal cases.
Jeffrey L. Fisher, a lawyer for Mr. Ramos, urged the court to protect dissenting voices on juries. “If you have one or two members of a minority on a jury, it could be a racial minority, it could be a political minority, it could be a religious minority,” he said. “Are we really prepared to say that those one or two votes can be utterly canceled out?”
The Bill of Rights originally restricted the power of only the federal government, but the Supreme Court has ruled that most of its protections apply to the states under the 14th Amendment, one of the post-Civil War amendments.
In February, for instance, the court unanimously ruled that the Eighth Amendment’s excessive fines clause applied to the states. That left the unanimous jury requirement as one of the very few remaining outliers.
Elizabeth Murrill, Louisiana’s solicitor general, spent most of her time arguing that the court had been wrong to require unanimous juries in either state or federal court. The Sixth Amendment does not mention the requirement, she said, meaning that non-unanimous verdicts should be permissible in both.
Justice Brett M. Kavanaugh asked Ms. Murrill for her best arguments for treating state juries differently from federal ones should the court reject her Sixth Amendment argument.
“Justice Kavanaugh,” she responded, “they are concededly not very good.”
Justice Kavanaugh also asked about what he said was the ugly history of Louisiana’s unanimity requirement, saying “the rule in question here is rooted in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s.”
In 1898, Louisiana held a constitutional convention whose purpose, as the chairman of its judiciary committee put it, was “to establish the supremacy of the white race in this state to the extent to which it could be legally and constitutionally done.”
Much of Monday’s argument was a debate over respect for precedent, a topic that has recently consumed and divided the justices.
Justice Samuel A. Alito Jr. said the court had been “lectured pretty sternly in a couple of dissents” in two recent cases in which its conservative majority had overturned precedents. Justice Elena Kagan, a liberal and the author of one of those dissents, followed up with questions exploring how Monday’s case might present different issues.
And Ms. Murrill, the lawyer for Louisiana, mentioned the case not far from the surface whenever the justices discuss precedent — the 1973 decision that established a constitutional right to abortion.
“The significant line of jurisprudence that comes to my mind is Roe,” she said, referring to Roe v. Wade.