Precedent on Precedent

Abstract

In Ramos v. Louisiana, decided in the spring of 2020, the U.S. Supreme Court held that the Sixth Amendment guarantees criminal defendants charged with serious offenses the right to unanimous convictions in state jury trials. A majority of the Justices agreed on that much. But a majority could not agree on fundamental and trans-substantive underlying questions about the nature and power of precedent. The decision involves a convoluted debate about whether, when, and how past cases are binding on new ones. On these questions, the court is radically fractured, offering up a cacophony of no fewer than five distinct views on stare decisis, with no more than three Justices agreeing on any one of them. This Essay illuminates the Justices’ conflicting approaches to precedent, shedding light on their covert assumptions and their implications for the future of stare decisis.

Keywords: Precedent, Stare decisis, Ramos v. Louisiana, Plurality decisions, Supreme Court, Judicial decisionmaking, Marks v. United States, Sixth Amendment