{"id":3340,"date":"2020-04-28T13:38:46","date_gmt":"2020-04-28T13:38:46","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3340"},"modified":"2020-04-28T14:00:28","modified_gmt":"2020-04-28T14:00:28","slug":"food-for-thought-on-stare-decisis-scotuss-decision-in-ramos-v-louisiana","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/food-for-thought-on-stare-decisis-scotuss-decision-in-ramos-v-louisiana\/","title":{"rendered":"Food for Thought on Stare Decisis: SCOTUS\u2019s Decision in Ramos v Louisiana"},"content":{"rendered":"\n

Last week\u2019s decision of the Supreme Court of the United States in Ramos v Louisiana <\/em>(\u201cRamos<\/em>\u201d) made headlines for ruling that the guarantee of trial by jury in the Sixth Amendment to the United States Constitution guaranteed the right to unanimous jury verdicts, even at the state level. The ruling invalidated Louisiana and Oregon laws that permitted convictions to be based on the votes of only ten jurors. In addition to being an important ruling in and of itself, the decision made headlines for noting the racist origins of Louisiana laws, which were clearly designed to allow a conviction over the objections of black jurors. In doing so, the Court overturned (or distinguished, depending on which of the divided judgments one views as binding) Apodaca v Oregon<\/em> (\u201cApodaca<\/em>\u201d). The Court was divided 6-3 in the result \u2013 with a non-stereotypical split, to say the least: Justices Gorsuch, Ginsburg, Breyer, Sotomayor, Thomas, and Kavanaugh were in the majority. They had four sets of reasons between them, but a majority was nonetheless discernible, as all but Justice Thomas agreed with most of Justice Gorsuch\u2019s opinion. Chief Justice Roberts and Justices Alito and Kagan dissented.<\/p>\n\n\n\n

I am not a criminal procedure expert, much less an American criminal procedure expert, to say nothing of a Sixth Amendment or trial-by-jury scholar. So I make no comment on whether the decision was correct. I am similarly suspending judgment on Justice Alito\u2019s dissent, wherein he criticized the majority for substituting accusations of racism against a law\u2019s drafters for an analysis of constitutionality. Nor do I take any position on whether Justice Gorsuch was correct in holding that Apodaca<\/em> (being a split 4-1-4 decision) was not binding or Justice Thomas\u2019s view that it was distinguishable. <\/p>\n\n\n\n

But I do wish to discuss Justice\nKavanaugh\u2019s concurrence in more depth, as he sought to spur discussion of\ncircumstances in which stare decisis<\/em> warrants \u2013 or cautions against \u2013\noverturning precedent in the constitutional context. Justice Sotomayor sought\nto do this as well, albeit to a lesser extent. I do not necessarily endorse all\nof their views but I commend them for seeking to start an important discussion,\nwhere much case law \u2013 in both Canada and the United States \u2013 has been wanting.\nThe principles underlying stare decisis<\/em> transcend the borders of common\nlaw countries, and there is much to be learned from other jurisdictions\u2019\napproach to this issue.<\/p>\n\n\n\n

Stare\nDecisis<\/em><\/strong><\/h4>\n\n\n\n

Stare decisis <\/em>allows parties,\nthe public, and courts to view matters as \u201csettled\u201d. This promotes certainty,\npredictability, and stability. At the same time, no serious person suggests\nthat stare decisis<\/em> is a doctrine that ought to be adhered to without\nreflection: the law must evolve to new circumstances, and there are times when\na precedent has proven itself to be deeply flawed. There are also times when\nthe precedent cannot be applied with predictability, and adhering to it would\nundermine the purposes of stare decisis<\/em>: the majority of the Supreme\nCourt of Canada held this to be the case with respect to the law of judicial\nreview in Canada in the December 2019 Vavilov <\/em>decision. <\/p>\n\n\n\n

This creates particular difficulty when\ncourts overturn precedents in a conclusory manner and\/or without significant\njustification for doing so. This leads to accusations, frequently\nunderstandable, that the court has engaged in results-based reasoning rather\napplying a previously known set of principles to justify the overturning of the\nprecedent. But what should such principles be?<\/p>\n\n\n\n

(I should note that this blog post\naddresses only horizontal stare decisis <\/em>\u2013 i.e.<\/em>, that appellate\ncourts ought not to overturn themselves. This is different than vertical stare\ndecisis<\/em>, which concerns lower courts\u2019 inability to overturn higher courts\nin all but the most exceptional of circumstances, assuming the lower courts can\neven do that.)<\/p>\n\n\n\n

Justice Kavanaugh\u2019s Decision<\/strong><\/h4>\n\n\n\n

In Ramos<\/em>, Justice Kavanaugh sought to spur discussion of what factors should be considered in deciding whether to overturn a precedent. He also noted that precedent should be overturned less frequently with respect to the common law, and especially statutes, than with respect to the Constitution: the legislature has the power to amend a court\u2019s decision on the common law or statutory interpretation, but cannot do so with respect to the Constitution.<\/p>\n\n\n\n

He noted that many different\nconsiderations have been deemed relevant in deciding to overturn a\nconstitutional precedent. These have included:<\/p>\n\n\n\n

  • The\nquality of the precedent\u2019s reasoning;<\/li>
  • The\nprecedent\u2019s consistency and coherence with previous or subsequent decisions;<\/li>
  • Changed\nlaw since the prior decision;<\/li>
  • Changed\nfacts since the prior decision;<\/li>
  • The\nworkability of the precedent;<\/li>
  • The reliance\ninterests of those who have relied on the precedent; and<\/li>
  • The age\nof the precedent.<\/li><\/ul>\n\n\n\n

    He\nsuggested synthesizing such considerations into three factors:<\/p>\n\n\n\n

    1. Is the\nprecedent not just wrong, but grievously wrong?<\/li>
    2. Has the wrong decision caused real negative\njurisprudential or real-world consequences?<\/li>
    3. Would\noverturning the decision unduly upset reliance interests?<\/li><\/ol>\n\n\n\n

      He ultimately posited that these criteria\nwould prove more (emphasis on the comparative) reliable and predictable than a\nnon-exhaustive list of criteria proposed in previous case law and commentary,\nwhile encompassing almost all values that should be weighed in a consideration\nof overturning precedent.<\/p>\n\n\n\n

      Justice Sotomayor\u2019s Thoughts<\/strong> <\/h4>\n\n\n\n

      Justice Sotomayor also wrote separately to\nnote that the criminal procedure context is one where private economic reliance\nis particularly unlikely to be present, and thus the overturning of precedent\nshould cause less anxiety. She also emphasized that the racist origins of the\nlaws at play warranted particular consideration.<\/p>\n\n\n\n

      Concluding\nCommentary: A Good Start, But Let\u2019s Be Realistic<\/strong><\/h4>\n\n\n\n

      First and foremost, I wish to commend\nJustices Sotomayor and Kavanaugh for seeking to build a list of factors that\nshould be consciously considered by courts considering overturning precedent.\nThe latter two factors that Justice Kavanaugh proposed also get to the purpose\nof stare decisis<\/em>: promoting stability, coherence, predictability. It\nmakes little sense to use stare decisis <\/em>to uphold a precedent when\nupholding the precedent undermines the purposes of stare decisis<\/em>.<\/p>\n\n\n\n

      Having said that, no one is suggesting\nthat the criteria can be applied like a mechanical checklist. That would be\ntotally impractical. Some uncertainty is inevitable. And Justice Kavanaugh\nadmitted that there would continue to be debates on how wrong (or even if\nwrong) a decision is, to say nothing about how much people have relied upon it,\nor what negative real-world consequences it has caused. Without commenting on\nAmerican cases, the Vavilov<\/em> decision saw sharp division between the\nmajority and minority on such questions about pre-Vavilov<\/em> judicial\nreview cases. So a list of criteria will not solve all disputes over whether to\noverturn precedent.<\/p>\n\n\n\n

      Even so, when judges do not grapple with a\nlist of pre-established criteria regarding precedent before overturning it, this\nleads to accusations that they are ruling by judicial whim. This in turn leads\nto an understandable and problematic perception that we are living under the\nrule of judges rather than the rule of law. This causes problems for\nreputations of our courts, as Dwight Newman has noted in recent years. As such,\ndemonstrating to the parties and the public that they have considered criteria\nrelevant to overturning precedent is not only helpful to adhering to purposes\nof stare decisis<\/em>, but also signals that a judge is not overturning\nprecedent merely because he can. <\/p>\n\n\n\n

      I am not suggesting that Justice\nKavanaugh\u2019s list of considerations is perfect, and further guidance about how\nthey are to be applied would be necessary in my view. I, for one, would place particular\nemphasis on reliance and a need to avoid chaos, as a practical trump card to\ncaution against overturning precedent. I would also want some indicia to know\nwhy a precedent is \u201cgrievously\u201d wrong as opposed to \u201cmerely\u201d wrong. The\ndistinction may prove illusory in practice, much like the abandoned distinction\nbetween \u201cpatent unreasonableness\u201d and \u201creasonableness\u201d in Canadian\nadministrative law. <\/p>\n\n\n\n

      But these are nitpicks, especially about a\ndecision that was not a majority decision. I hope similar considerations arise\nin Canada in the future, where we have seen seemingly inconsistent statements\nfrom our Supreme Court, as Professor Newman has noted so well in recent years.<\/p>\n","protected":false},"excerpt":{"rendered":"

      Last week\u2019s decision of the Supreme Court of the United States in Ramos v Louisiana (\u201cRamos\u201d) made headlines for ruling that the guarantee of trial by jury in the Sixth Amendment to the United States Constitution guaranteed the right to unanimous jury verdicts, even at the state level. The ruling invalidated Louisiana and Oregon laws …<\/p>\n","protected":false},"author":133,"featured_media":3342,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[35,34],"tags":[255,72,508,492,293,71,294,30],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3340"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/133"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=3340"}],"version-history":[{"count":2,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3340\/revisions"}],"predecessor-version":[{"id":3343,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3340\/revisions\/3343"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/3342"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=3340"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=3340"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=3340"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}