Precedent on Precedent

11 Pages Posted: 1 Jun 2020 Last revised: 3 Jun 2020

See all articles by Nina Varsava

Nina Varsava

University of Wisconsin-Madison

Date Written: May 2, 2020


In the recent decision of Ramos v. Louisiana, 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 underlying questions about the nature and power of precedent. The decision involves a convoluted debate about whether and when and how past cases are binding on new ones. On these questions, the court is radically fractured, offering up no fewer than five different views of precedent, with no more than three justices agreeing on any one of them. This essay illuminates each of these views, revealing their covert assumptions and extraordinary implications.

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

Suggested Citation

Varsava, Nina, Precedent on Precedent (May 2, 2020). 169 University of Pennsylvania Law Review Online (2020) (Forthcoming). Available at SSRN: or

Nina Varsava (Contact Author)

University of Wisconsin-Madison ( email )

United States


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