Justice Kagan issues a warning and a stinging rebuke to Kavanaugh's new decision: 'An insupportable ruling'

In a dissent on Monday, U.S. Supreme Court Justice Elena Kagan warned that the conservative majority of the court is once again abandoning precedent with little justification in a new ruling on unanimous jury verdicts.

The new 6-3 decision in the case of Edwards v. Vannoy, with all six conservatives in the majority and the three liberals dissenting, came in response to a 2020 ruling in the case of Ramos v. Louisiana. In that ruling, the court found that jury trials for serious crimes must require total unanimity from the jury to uphold a conviction. Oregon and Louisiana had established rules allowing for defendants to be convicted without complete unanimity, a policy steeped in racist history and fears that Black defendants might get away too easily.

But on Monday, the conservative majority — in an opinion penned by Justice Brett Kavanaugh — dampened the effect of this major decision by finding that it doesn't apply retroactively. That is, essentially defendants who were convicted by a jury trial without unanimity and had their cases settled prior to the Ramos ruling will still be considered guilty in the eyes of the federal courts. Not only did the ruling destroy any hope for people who had been convicted without jury unanimity, it weakened the Supreme Court's power to right wrongs in the criminal justice system by declaring that no future changes by the court to criminal justice procedure will apply retroactively. Previously, the court has said in the case of Teague v. Lane that "watershed" changes to criminal justice procedure would apply retroactively.

Kagan's dissent was searing in her criticism of the majority's ruling. She argued there was little sense that Thedrick Edwards, the defendant in the case at the heart of the new ruling, will get no relief from his life sentence even though Evangelisto Ramos — of the previous ruling — did.

"The majority cannot (and indeed does not) deny, given all Ramos said, that the jury unanimity requirement fits to a tee Teague's description of a watershed procedural rule," she wrote. "Nor can the majority explain its result by relying on precedent. Although flaunting decisions since Teague that held rules non-retroactive, the majority comes up with none comparable to this case. Search high and low the settled law of retroactivity, and the majority still has no reason to deny Ramos watershed status."

She continued:

In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis. It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the "special justification" our law demands. ... The majority in that way compounds its initial error: Not content to misapply Teague's watershed provision here ... the majority forecloses any future application ... . It prevents any procedural rule ever—no matter how integral to adjudicative fairness—from benefiting a defendant on habeas review. Thus does a settled principle of retroactivity law die, in an effort to support an insupportable ruling.

Kagan rested a lot of her argument on the principle of stare decisis — the idea that previous Supreme Court precedents should typically be binding on future decisions. This argument took on additional significance on Monday when the court announced it would be take up the case of a Mississippi abortion ban that observers believe will give the justices the opportunity to overturn Roe v. Wade and Planned Parenthood v. Casey, the two key cases defining the constitutional right to have an abortion.

The dissent argued that the majority's decision to overrule Teague, the case that established that watershed changes to criminal justice procedure can be applied retroactively, is particularly egregious because neither party in the present case asked for it to be overturned. Suhc a request is usually considered a key factor in the supposedly rare cases in which the court departs from stare decisis.

Kagan was particularly disdainful of Kavanaugh's reasoning.

"The majority can't be bothered with that customary, and disciplining, practice; it barely goes through the motions," she wrote. "Seldom has this Court so casually, so off-handedly, tossed aside precedent."

There are signs that Kagan's biting criticism got under Kavanaugh's skin. In one section of his opinion, he criticized her for so forcefully condemning the majority's ruling and its consequences, given that she dissented from the decision in Ramos. He said her "rhetoric" was "misdirected":

... it is of course fair for a dissent to vigorously critique the Court's analysis. But it is another thing altogether to dissent in Ramos and then to turn around and impugn today's majority for supposedly shortchanging criminal defendants. To properly assess the implications for criminal defendants, one should assess the implications of Ramos and today's ruling together. And criminal defendants as a group are better off under Ramos and today's decision, taken together, than they would have been if JUSTICE KAGAN's dissenting view had prevailed in Ramos. If the dissent's view had prevailed in Ramos, no defendant would ever be entitled to the jury-unanimity right—not on collateral review, not on direct review, and not in the future. By contrast, under the Court's holdings in Ramos and this case, criminal defendants whose cases are still on direct review or whose cases arise in the future will have the benefit of the jury-unanimity right announced in Ramos. The rhetoric in today's dissent is misdirected. Different Members of the Court have reached different conclusions in Ramos and in this case, but each Member of the Court has acted in good faith in deciding the difficult questions before us.

But Kagan replied with equal force, arguing that she dissented in the Ramos case precisely because its ruling overturned previous precedent, which she did not believe was justified. But having made that decision, she argued, the court is now obligated to apply the decision retroactively. And she argued that not doing so is yet another abandonment of stare decisis — one with serious costs.

She called Kavanaugh's criticisms "surprising" and said he was treating judging like "scorekeeping":

The majority's final claim is that it is properly immune from this criticism—that I cannot "turn around and impugn" its ruling—because "criminal defendants as a group are better off under Ramos and today's decision, taken together, than they would have been if [my] dissenting view had prevailed in Ramos." Ante, at 19. The suggestion is surprising. It treats judging as scorekeeping—and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party. I see the matter differently. Judges should take cases one at a time, and do their best in each to apply the relevant legal rules. And when judges err, others should point out where they went astray. No one gets to bank capital for future cases; no one's past decisions insulate them from criticism. The focus always is, or should be, getting the case before us right.

Of course, what most people will care about is what the decision means for the real lives of people affected by the new policy. For them, Kagan could offer little solace.

"For the first time in many decades," she wrote, "those convicted under rules found not to produce fair and reliable verdicts will be left without recourse in federal courts."