Kavanaugh calls out racism in the law on the first day of the new Supreme Court term

Kavanaugh knows all about pointed questions.
Kavanaugh knows all about pointed questions.
Image: Reuters
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The Supreme Court heard arguments Monday on the constitutionality of a Louisiana law that allows criminal convictions based on jury verdicts that aren’t unanimous.

Justice Brett Kavanaugh pointed out that the Louisiana law had racist roots. He noted that there were two “practical reasons” to overrule the precedent the state relied on. One was unfairness to defendants who may well have a constitutional right to a unanimous jury, and the other was the law’s apparently racist intent.

“The rule in question here is rooted in a—in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors,” the justice told the state’s solicitor general, Elizabeth Murrill.

“Why aren’t those two things enough to overrule… unfairness to defendants and rooted in racism?” he asked Murrill. She replied that the law was not “fundamentally unfair.” But Kavanaugh didn’t look convinced.

Although the conservative justice seems a somewhat unlikely champion of minorities, he recently also authored the majority opinion in a case reversing a quadruple murder conviction based on a racist jury selection process and is actually steeped in the topic. The opinion was an eloquent condemnation of racism.

Kavanaugh’s unexpected question was just one sign that, as ever, it will be impossible to predict where the justices fall on any issue until they reveal their decisions.

In the jury case, Stanford University law school professor Jeffrey Fisher argued for the petitioner, Evangelista Ramos, that the Louisiana law is unconstitutional. Although a unanimous jury trial is guaranteed in federal criminal cases, Louisiana argues that it has leeway under Supreme Court precedent to create its own standards and that Ramos’s conviction for murder by a jury verdict of 10-2 should stand.

Fisher argued that a unanimous jury verdict of even just six people is more trustworthy than a decision reached without unanimity by a majority of 12 or 20 or more. Justice Neil Gorsuch acknowledged “the functionalist argument about numbers,” and then asked dismissively: “Got anything else?”

Chief justice John Roberts, too, said he was skeptical of the contention that it’s better to be convicted by six people in agreement than a group of 12 with two dissenters, suggesting, “Ask a defendant. I’m not sure it’s self-apparent.”

Still, it was the state that seemed to bear the brunt of the justices’ questions. The chief asked Louisiana, “how far are you willing to go?” He wondered how few people could be in a jury and still count as a fair number for a sound conviction. Justice Ruth Bader Ginsburg added, “Are you asking us to reject the federal unanimity rule?”

The justices dismissed the state’s arguments that there would be administrative chaos if all the cases that had been decided by non-unanimous jury verdicts while the state law was in place had to be heard again.

Gorsuch reminded the state that defendants also rely on order, the orderly administration of justice, which might demand that Louisiana deal with inconvenient consequences of an arguably unconstitutional law. “Counsel, on your reliance interests, you say we should worry about the 32,000 people imprisoned. One might wonder whether we should worry about their interests under the Sixth Amendment as well,” he said.

The justices will consider arguments over the next few months, and will likely announce a decision next year.