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Liberal Justice Slammed for Joining Conservative Dissent That ‘Ignores Racist History’ of Jury Issue


When the Supreme Court of the United States handed down its ruling in Ramos v. Louisiana on Monday, many were unprepared to see liberal Justice Elena Kagan side with Justice Samuel Alito’s dissent along with Chief Justice John Roberts.

At issue in the case was a Louisiana criminal procedure rule (as well as a similar one in Oregon) that allows criminal defendants to be convicted of a serious offense by a jury vote of 10 to 2 – instead of the usual requirement for unanimity. Part of the majority’s lengthy analysis centered around the rules’ history, which had been rooted in racism.

Justice Neil Gorsuch, writing for the majority, called out non-unanimous jury rules for being engineered to nullify the votes of black jurors. Gorsuch wrote that the origins of the rules were clearly tied to white supremacy, and included many trappings of Jim Crow. Gorsuch explained that the rule was adopted “with a careful eye on racial demographics.” Gorsuch said it was designed to appear facially-neutral in an effort “to ensure that African-American juror service would be meaningless.”

The dissenting trio, however, wouldn’t hear any of these accusations. Alito accused the majority of raising racism as nothing more than an ad hominem attack on Louisiana:

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

The dissent went a step further, criticizing the majority for “mak[ing] no effort” to show that the non-unanimous jury rules were retained for legitimate non-racist purposes.

Alito raised the example of British Parliamentary and Puerto Rican laws that also allowed non-unanimous verdicts; those rules were made to ensure fairness and efficiency, not to silence black jurors.

“Was their aim to promote white supremacy? And how about the prominent scholars who have taken the same position? Racists all? Of course not,” Alito wrote. Then came a footnote:

“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.”

Alito accused his colleagues in the majority of going out of their way to focus on racism, thereby engaging in irrational and uncivil discourse:

 “So all the talk about the Klan, etc., is entirely out of place. We dissenting should set an example of rational and civil discourse instead of contributing to the worst current trends.”

Some court followers weren’t surprised to see Roberts and Alito taking this stance, but Kagan? They evidently didn’t see that coming and were taken aback.

Responses ranged from the confused:

…to the disappointed:

… to the resigned:

Some are determined to see the best in the justices, pointing out that Kagan’s having sided with two of the court’s conservative justices indicates a desired neutrality on the bench.

[image via Doug Mills/The New York Times POOL PHOTO]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos